FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
|
Anthony Gaeta, |
|||
| Complainant | |||
| against | Docket #FIC 2006-224 | ||
|
Board of Selectmen, Town of Ridgefield, |
|||
| Respondent | March 28, 2007 | ||
The above-captioned matter was heard as a contested case on October 19, 2006, at which time the complainant and the respondent appeared, 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 dated April 29, 2006 and filed on May 1, 2006, the complainant appealed to this Commission, alleging that the respondent improperly held an “emergency meeting” on April 1, 2006 (hereinafter “the April 1, 2006 meeting”) and thereby violated the Freedom of Information (“FOI”) Act when it:
a. failed to file a notice of the time and place of the April 1, 2006 meeting in the office of the clerk not less than 24 hours prior to the time of such meeting;
b. failed to deliver a notice of the time and place of the April 1, 2006 meeting to the usual place of abode of each member of the public agency so that the same is received prior to such special meeting;
c. conducted an “emergency meeting” and the purpose was not an emergency within the meaning of §1-225(d);
d. conducted business other than on the agenda;
e. failed to file the minutes with the town clerk within seven days.
3. At the hearing in this matter, the complainant requested that the Commission declare null and void all actions taken at the April 1, 2006 meeting.
4. The respondent board maintains that the meeting was properly held as an emergency meeting pursuant to §1-225(d), G.S.
5. Section 1-225(d), G.S. provides, in relevant part:
Notice of each special meeting … shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in … the office of the clerk … provided, in case of emergency … any … special meeting may be held without complying with the … requirement for the filing of notice but a copy of the minutes of every such emergency special meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with … the clerk … not later than seventy-two hours following the holding of such meeting.
6. Section 1-225(a) provides, in relevant part:
The meetings of all public agencies … shall be open to the public. The votes of each member … upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.
7. The FOI Act does not define “emergency”. However, the Commission has looked for guidance to The Second College Edition of the American Heritage Dictionary (1982), which defines emergency as an “unexpected situation or sudden occurrence of a serious and urgent nature that demands immediate action.” See Nancy J. Eggen v. New Milford Planning Commission, Town of New Milford, Docket #FIC 1998-113. Also, the Commission has narrowly interpreted what constitutes an “emergency” for purposes of §1-225(d), G.S. See Town of Lebanon v. Wayland, 39 Conn. Supp. 56, 61, 62 (1983). See also, Daniel Parlato, et al. v. Harry Traver, First Selectman, Town of Bethlehem, et al., Docket #FIC 2003-410; Henry W. Stormer v. First Selectman, Town of Southbury, Docket #FIC 2000-015; Robert Gries v. Woodstock Board of Selectmen, Docket #FIC 1994-221; Thomas Burns v. Stafford Board of Education, Docket #FIC 1993-199.
8. It is found that, in January 2006, the fire chief for the Town of Ridgefield announced his retirement, and that, during March 2006, a search was underway for a new fire chief. During this time, the complainant was the assistant fire chief and had been with the Ridgefield fire department approximately 36 years. It is found further that the complainant was a candidate for the fire chief position, but learned on March 27, 2006, that he no longer was being considered for such position.
9. It is found that on March 30, 2006, the first selectman, Mr. Marconi, received a telephone call from the human resources director, Ms. Scholl, informing him that a verbal altercation had occurred the previous day between the complainant and Mr. Hill, the public works director, during which the complainant shouted and used vulgar language in front of a group of children. It is found further that during this telephone conversation, Mr. Marconi asked Ms. Scholl to “draw up the stipend” which would be offered to the complainant for staying on as “acting fire chief” until a permanent fire chief could be hired.
10. It is found that, on March 31, 2006, Mr. Marconi went to the complainant’s office and gave the complainant a memorandum describing the stipend and confirming a previous conversation regarding the complainant becoming “acting fire chief” as of the close of business on March 31, 2006.
11. It is found that, during the meeting, both the complainant and Mr. Marconi became very angry and upset, and used vulgar language. It is found further that the complainant threw papers at Mr. Marconi, moved around from behind his desk toward Mr. Marconi, and at one point said words to the effect, “I’m gonna kill you.”
12. It is found that Mr. Marconi told the complainant that he (the complainant) “was going to have to answer to the Board of Selectmen,” that Marconi was going to call an emergency meeting of the board for 9:00 a.m. the next morning, and that the complainant should attend.
13. It is found that, before Mr. Marconi left the complainant’s office, he asked the complainant “so will you take the job as acting chief or not,” to which the complainant responded affirmatively.
14. It is found that, until the meeting described in paragraphs 10 through 13, above, the complainant and Mr. Marconi had been life-long friends.
15. It is found that, immediately after the meeting with the complainant, described in paragraphs 10 through 13, above, Mr. Marconi called the second selectman, Ms. Manners, and described his encounter with the complainant. It is found further that, during this conversation, Mr. Marconi and Ms. Manners decided to call an emergency meeting of the Board of Selectman for 9:00 the next morning “to review the complainant’s conduct during the past week and during the entire interview process.”
16. It is found that, at Mr. Marconi’s request, on March 31, 2006, an administrative assistant called the other board members and informed them of the emergency meeting. It is found further that the respondent did not notify the press, nor make any effort to notify the public of the April 1, 2006 meeting.
17. It is found that, on Saturday, April 1, 2006, the respondent board met at the town hall at 9:00 a.m. and that the complainant was not present. It is found further that the respondent board began its discussions regarding the complainant, and at some point, voted to enter executive session.
18. It is found that, at approximately 11:00 a.m., the respondent board came out of executive session, voted to ask the complainant for his resignation, and also voted to recess the meeting.
19. It is found that, during the recess referenced in paragraph 18, above, Ms. Scholl telephoned the complainant and asked him to come immediately to the town hall to meet with the respondent board. It is found further that when the complainant arrived at the town hall shortly thereafter, he was met by Ms. Scholl, and led into a room where Ms. Manners was waiting. It is also found that Ms. Manners then informed the complainant that the respondent board was asking for his resignation and that, if he chose not to resign, he would be placed on administrative leave, without pay, pending an investigation into his recent conduct.
20. It is found that, in response, the complainant told Ms. Scholl and Ms. Manners that neither option was acceptable to him and that, instead, he would retire. It is also found that, thereafter, Ms. Scholl and Ms. Manners returned to the April 1, 2006 meeting of the respondent board, reported back to the members what had transpired, and that the respondent board then voted unanimously to “accept the resignation” of the complainant.
21. It is found that the claimed nature of the emergency, as described by Mr. Marconi and Ms. Manners at the hearing in this matter, was that the town would be subject to “potential liability” if the complainant were permitted to remain in the position of “acting fire chief” in light of his recent behavior, specifically, the encounters with Mr. Hill and Mr. Marconi that had occurred during the previous week.
22. It is found that there was no evidence produced at the hearing, other than the respondent board’s speculation, to prove that (1) the complainant’s conduct during the previous week had any impact or effect on his ability to fulfill his duties as assistant fire chief or that it would have affected his ability to fulfill his duties as “acting fire chief” or (2) the town would be subject to “potential liability” if the complainant were permitted to remain in the position of assistant fire chief or to assume the position of “acting fire chief.”
23. With regard to the allegation contained in paragraph 2.c., above, it is found that the situation described in paragraphs 8 through 20, above, did not constitute an “emergency” within the meaning of §1-225(d), G.S.
24. It is therefore concluded that that respondent board violated the FOI Act as alleged in paragraph 2.c, above.
25. It is found that the respondent board did not file a notice of the time and place of the April 1, 2006 meeting twenty-four hours prior to the time of such meeting.
26. It is therefore concluded that, with respect to the allegation contained in paragraph 2.a, above, the respondent board violated §1-225(d), G.S.
27. With regard to the allegation contained in paragraph 2.b, above, it is found that §1-225(d), G.S. confers upon individual members of a public agency the right to home delivery of written notice of special meetings of the agency of which they are a member. See Richard A. Rutkowski v. Mayor, Town of Berlin; Town Council, Town of Berlin; and Town of Berlin, Docket #FIC 1998-060.
28. It is found that the complainant is not a member of the respondent board.
29. It is therefore concluded that the complainant has not been denied the right to individually written notice conferred by §1-225(d), G.S., and, therefore, has no standing to appeal the allegation described in paragraph 2.b, above, to the Commission.
30. With regard to the allegation contained in paragraph 2.d, above, it is found that both the agenda and the minutes of the April 1, 2006 meeting list one item of business as follows: “1. Executive Session to discuss: -- Details of Fire Chief contract”.
31. It is found that the purpose of the April 1, 2006 meeting was to discuss whether or not to ask for the complainant’s resignation, not to discuss the details of the fire chief contract, as stated on the agenda and in the minutes.
32. It is therefore concluded that the respondent board violated §1-225(d), G.S., as alleged in paragraph 2.d, above, when it conducted business other than that listed on the agenda.
33. With regard to the allegation contained in paragraph 2.e, above, it is found that the minutes of the April 1, 2006 meeting were filed with the town clerk on April 3, 2006.
34. It is therefore concluded that the respondent board did not violate §1-225(d), G.S. as alleged in paragraph 2.e, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent’s action to “accept the resignation” of the complainant from the fire department, as described in paragraph 20 of the findings, above, is hereby declared null and void.
2. Henceforth, the respondent shall strictly comply with the notice provisions of §1-225(d), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 2007.
________________________________
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:
Board of Selectmen,
Town of Ridgefield
c/o Frederick L. Dorsey, Esq.
150 Trumbull Street
Hartford, CT 06103
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2006-224FD/paj/4/3/2007