FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

           

The above-captioned matter was heard as a contested case on April 7, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  It is found that, by letter dated October 12, 2004, the complainant requested an advisory opinion from the respondent regarding applicability of section 2-66a of the Town of Glastonbury Code of Ethics to a situation, without specifying names or dates [hereinafter “the correspondence”].  At the hearing in this matter, the complainant testified, and it is found, that she submitted such request so that she could receive an opinion from the respondent, before deciding to file a complaint with the respondent. 

 

3.  It is found that, by letter dated October 15, 2004, the chairperson of the respondent informed the complainant that requests for advisory opinions are limited to employees, officials, or those doing business with the town of Glastonbury, and that persons who wish to question the behavior of Glastonbury officials or employees must do so through the respondent’s complaint process.  The respondent further informed the complainant that the respondent would consider how to deal with the correspondence at its October 25, 2004 meeting.   

 

4.  It is found that the respondent conducted a regular meeting on October 25, 2004 [hereinafter “the meeting’], and that during the meeting, announced that it would convene in executive session for the stated purpose of discussing correspondence containing potentially confidential information, which is the correspondence described in paragraph 2, above.   It is also found that the respondent then unanimously voted to enter executive session [hereinafter “the executive session”].

 

5.  It is found that, during the executive session, the members of the respondent discussed the correspondence and how the respondent should deal with it.  Specifically, it is found that the members of the respondent considered the respondent’s procedures in effect at the time of receipt of the correspondence, and as more recently amended, and decided by consensus that:

 

a) advisory opinions are to be issued only to employees, officials, or those doing business with the town of Glastonbury;

 

b) complaints are initiated for questions about specific conduct of employees, officials, or those doing business with the town of Glastonbury;

 

c) the respondent would not act on a complaint submitted without specific information;

 

d) the correspondence was not appropriately framed as a complaint; and

 

e) the respondent would send to the complainant new complaint forms and a copy of the respondent’s amended procedures.   

 

6.  It is found that, upon reentering open session, the respondent announced what had been discussed in the executive session, as described in paragraph 5, above.

 

7.  It is found that, by letter dated October 28, 2004, the respondent informed the complainant that she could submit a complaint form specifying conduct.  It is also found that, by letter dated November 8, 2004, the respondent forwarded to the complainant copies of its complaint forms and a copy of its amended procedures. 

 

8.  By letter of complaint dated and filed November 12, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by:

 

: a) convening the executive session for an improper purpose;

 

: b) reaching a consensus in such session;

 

: c) failing to record a record of the consensus taken in such executive session; and

 

: d) conducting a secret meeting on October 25, 2004, by convening in such executive session. 

 

9.  Section 1-225(a), G.S., provides in relevant part that: “[t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection….”

 

10.  Section 1-200(6), G.S., defines “executive session” to mean:

 

“…a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting;  (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.”

 

11.  The respondent does not contend that its executive session was permitted by §§1-225(a) and 1-200(6), G.S., but rather by §§1-82a and 7-148h, G.S.

 

 12.  Section 1-82a, G.S., provides in relevant part:

 

“(a) Unless the [state ethics] commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent….

 

(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.

 

(c) Not later than three business days after the termination of the investigation, the commission shall inform the complainant and the respondent of its finding and provide them a summary of its reasons for making that finding. The commission shall publish its finding upon the respondent's request and may also publish a summary of its reasons for making such finding.

 

(d) If the commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings. No complainant, respondent, witness, designated party, or commission or staff member shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known. If such a disclosure is made, the commission may, after consultation with the respondent if the respondent is not the source of the disclosure, publish its finding and a summary of its reasons therefor.” 

 

[Emphasis added.]

13.  Section 7-148h, G.S., provides in relevant part:

“(a) Any town, city, district, as defined in section 7-324, or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any official, officer or employee of such town, city, district or borough. The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before any such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause….” 

 

14.  The respondent maintains that it didn’t know what to do with the correspondence, and convened in executive session to avoid embarrassing a public employee by having allegations aired in public that were ultimately determined to have no substance.

 

15.  It is found that §§1-82a and 7-148h, G.S., apply by their express terms only to complaints alleging ethics violations, and proceedings related to such complaints conducted prior to a finding of probable cause.  In this case, it was the respondent’s own decision to treat the correspondence as a request for an advisory opinion.  It is found that, during the executive session, the respondent did not discuss the merits of the correspondence, and did not take any actions that might lead to a finding of probable cause.

 

16.  It is concluded that the respondent has not stated a permissible purpose for the executive session, and that its closed session did not fall within the provisions of §§1-82a and 7-148h, G.S. 

 

17.  It is concluded that the respondent violated §1-225(a), G.S., as alleged in paragraph 8.a, above, by convening in executive session for an improper purpose.

 

18.  It is found that the consensus described in paragraph 5, above, was tantamount to a vote, and that such vote was not permitted in executive session.  It is further found that the minutes of the meeting clearly describe such consensus, but do not indicate the votes of each member. 

 

19.  It is concluded that the respondent violated the FOI Act, as alleged in paragraphs 8.b and 8.c, above.

 

20.  It is found that the executive session was not a secret meeting.  Accordingly, it is concluded that the respondent did not violate the FOI Act, as alleged in paragraph 8.d, above. 

 

21.  In her complaint, the complainant requested that the respondent be required to act in strict compliance with §§1-200 and 1-225, G.S., that the respondent be required to circulate a memorandum to each of its members alerting them of their responsibilities under such provisions, and that the respondent be required to disclose in writing what transpired at the executive session, and file such written disclosure with the minutes of the meeting. 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  Henceforth the respondent shall strictly comply with the open meetings provisions set forth in §1-225(a), G.S.

 

            2.  The respondent shall forthwith cause the minutes of its October 25, 2004, meeting to be amended to accurately reflect how its members voted on the issues described in paragraph 5, of the findings, above. 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 26, 2005.

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Dana L. Evans

203 Mountain Road

Glastonbury, CT 06033

 

Ethics Commission,

Town of Glastonbury

c/o Henry Zaccardi, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT 06103-1919

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-513FD/paj/10/27/2005