FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

The above-captioned matter was heard as a contested case on March 28, 2006, at which time the complainants 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.      By letter filed on January 11, 2006, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by convening an executive session at its December 20, 2005 meeting for a purpose other than that which was noticed on its agenda, and by convening for an impermissible purpose.  The complainants requested that the Commission void any and all actions taken subsequent to, and as a result of, discussions held during the executive session and order the members of the respondent to attend an educational workshop on the FOI Act.

 

3.      Section 1-225(a), G.S., provides, in relevant part:

 

The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. 

 

4.      Section 1-200, G.S., in relevant part, provides:

 

(6)  “Executive sessions” means 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 . .  .

 

5.      Section 1-225(f), G.S., further provides:

 

A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200. 

 

6.      It is found that the respondent held a meeting on December 20, 2005, the agenda for which listed the first items of business as follows:

 

EXECUTIVE SESSION

·        Personnel

·        Legal

 

7.      It is found that the respondent convened in executive session during its December 20, 2005 meeting after an unanimous affirmative vote was taken on a motion to convene said executive session (hereinafter “executive session”) for the purpose of discussing  “the appointment, employment, performance, evaluation, health, dismissal of a public officer or employee.”

 

8.      The complainants specifically allege, based upon information from two sources not present at the hearing on this matter, that the executive session was not convened for the purpose noticed on the agenda but rather was convened to entertain discussions from a member of the respondent board who was challenging the re-appointment of Elaine McClure, a member and the chairperson of the respondent.  The complainants further alleged that the aforementioned member was seeking to be appointed as chairperson in Ms. McClure’s stead and solicited support from other board members during the executive session.

 

9.      It is found, however, that the discussion during the executive session was limited to Ms. McClure’s performance as chairperson of the respondent, which discussion included an evaluation of her past and present performance, and the board expectations with respect to her future performance.

 

10.   It is also found that, although the agenda for the respondent’s December 20, 2005 meeting indicated that the respondent would convene in executive session to discuss a legal matter, which matter was never identified, no such discussion was held. 

 

11.   Consequently, it is concluded that the respondent’s discussion during the executive session described in paragraph 9, above, was a discussion concerning the performance and evaluation of a public officer within the meaning of §1-200(A), G.S., and therefore did not violate the FOI Act as alleged by the complainants.

 

12.   With respect to the agenda and the notice the respondent provided to the public of the business to be transacted at its December 20, 2005 meeting, this Commission found, in contested case Docket #FIC 1990-048; Trenton E. Wright, Jr. v. First Selectman, Town of Windham, that the phrase "executive session - personnel matters" was too vague to communicate to the public the business to be transacted.

 

13.   In Durham Middlefield Interlocal Agreement Advisory Board v. FOIC et al., Superior Court, Docket No. CV 96 0080435, Judicial District of Middletown, Memorandum of Decision dated August 12, 1997 (McWeeny, J.), the court concluded that it was reasonable for the Commission to require something more detailed than “Executive Session Re: Possible Litigation” in a special meeting notice.

 

14.   In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

15.   This Commission has repeatedly stated that in order for the public to be adequately apprised of the reason for an executive session, the public agency must give some indication of the specific topic to be addressed, prior to convening such session.  Therefore, descriptions such as “personnel,” “legal,” or “the appointment, employment, performance, evaluation, health, dismissal of a public officer or employee,” are inadequate and do not state the reason, within the meaning of §1-225(f), G.S.

 

16.   It is found that the respondent board failed to state the reason for the executive session held on December 20, 2005, described in paragraph 9, above, within the meaning of §1-225(f), G.S., and therefore violated such provision.

 

17.   Notwithstanding the conclusion in paragraph 16, above, the Commission declines to consider the complainants’ requests for relief.

 

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 provision of §1-225(f), G.S.

                                   

Approved by Order of the Freedom of Information Commission at its regular meeting of October 11, 2006.

 

________________________________

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:

 

John Voket and The Newtown Bee

c/o Robert A. Bertsche, Esq.

Prince, Lobel, Glovsky & Tye

585 Commercial Street

Boston, MA 02109

 

Board of Education, Newtown Public Schools

c/o Floyd J. Dugas, Esq.

Berchem, Moses & Devlin PC

75 Broad Street

Milford, CT 06460

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2006-013FD/paj/10/16/2006