FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The caption above has been amended based upon the findings below. The above-captioned matter was consolidated for hearing with Docket #FIC 2006-356, Bradshaw Smith v. Richard F. Messenger, Member, Board of Directors, Greater Hartford Transit District; Stephen F. Mitchell, Member, Board of Directors, Greater Hartford Transit District; and Greater Hartford Transit District. Both matters were heard as contested cases on October 23, 2007, at which time the complainant and the respondents in the above-captioned matter 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 respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  By letter dated May 14, 2007 [sic] and filed with the Freedom of Information Commission (“Commission”) on June 19, 2007, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”). The complainant alleged that the respondents held an executive session on June 5, 2007, stating that it was “to Discuss Personnel Matters”, which is not recognized “as a legitimate reason for entertaining [sic] an executive session.” The complainant sought relief in the form of: a) civil penalties assessed against Vicki L. Shotland, Frank Lord and Stephen F. Mitchell; b) an order “declaring the entire meeting illegal”; and c) any other order the Commission may deem appropriate.  

 

3.  At the hearing, the respondents made a motion to dismiss the complaint pursuant to §1-206(b)(4), G.S., stating that, because the complainant did not attend the June 5, 2007 meeting of the respondent Personnel Committee, Greater Hartford Transit District (“respondent Personnel Committee”), he was not denied any right conferred by the FOIA.

  

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

 

(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; (emphasis added)

 

5.  Section 1-206(b)(4), G.S., states:

 

Notwithstanding any provision of this subsection to the contrary, in the case of an appeal to the commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the Freedom of Information Act, or (B) the agency has committed a technical violation of the Freedom of Information Act that constitutes a harmless error that does not infringe the appellant’s rights under said act. (emphasis added)

 

6.       Section 1-225(f), G.S., states:

 

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. (emphasis added)

 

7.  It is found that the respondent Personnel Committee is comprised of three members: Ferguson R. Jansen, Jr., Frank Lord, and Richard F. Messenger, the last of whom serves as chairman. The respondent, Stephen F. Mitchell, is not a member of the respondent Personnel Committee. Rather, Mr. Mitchell is Chairman of the parent body, the Greater Hartford Transit District. Mr. Mitchell did attend the June 5, 2007 meeting of the respondent Personnel Committee as a guest.  

 

8.  It is found that the respondent Personnel Committee has only one function, which is to meet once a year to evaluate the Executive Director. All of the three members of the respondent Personnel Committee were in attendance at the June 5, 2007 meeting and all understood the purpose of the meeting. No member of the general public was in attendance at the meeting, which had been lawfully noticed. The Executive Director of the Greater Hartford Transit District, Vicki L. Shotland, also was not in attendance.

 

9.  It is found that the complainant did give the respondent Personnel Committee notice, by letter posted by U.S. mail to chairman Richard F. Messenger, and by fax to executive director Vicki L. Shotland one hour before the June 5, 2007 meeting, that an executive session for the stated purpose of addressing “personnel matters” was not recognized as “legitimate” by the FOIA. The complainant asserted that “the name of the person or group of people to be discussed” had to be disclosed.    

 

10.  It is found that the respondent Frank Lord and the respondent Personnel Committee simply stated, as reflected in the minutes, that the executive session was “for purposes of discussion of personnel matters.”  

 

11.  It is concluded that action by the Commission on the respondents’ motion to dismiss, pursuant to a §1-206(b)(4), G.S., is discretionary. In the case of most §1-206(b)(4), G.S., motions, action is taken prior to hearing. In the Commission’s discretion, the motion to dismiss described at paragraph 3, above, is denied. Even though the complainant did not attend the June 5, 2007 meeting, he was denied the right conferred by the FOIA to properly detailed minutes. See §1-225(a), G.S.    

   

            12.  It is concluded that the respondents Frank Lord and the Personnel Committee, Greater Hartford Transit District violated the requirement of §1-225(f), G.S., when they stated that the purpose of the executive session was for “discussion of personnel matters.”   Numerous decisions of the Commission have found such a vague description to violate §1-225(f), G.S. David R. Jacobs v. Branford Board of Police Commissioners, Docket #FIC 2003-129; Gale Courey Toensing and Waterbury Republican v. Chairman, Board of Education, Regional School District One; Board of Education, Regional School District One; and Superintendent of Schools, Regional School District One, Docket #FIC 2002-129; Robert Fromer v. Claire Gaudiani, President, Executive Committee, New London Development Corporation; David Goebel, Chief Executive Operating Officer, Executive Committee, New London Development Corporation; and Executive Committee, New London Development Corporation, Docket #FIC 1999-570.

 

13.  Based upon the findings set forth at paragraph 7, above, it is also concluded the complaint is dismissed against Stephen F. Mitchell.    

 

 14.  Based upon the findings set forth at paragraph 8, above, the Commission, in its discretion, denies the relief that the complainant requested at paragraph 2a), b), and c), above.  

 

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

 

1.  Henceforth, the respondent Frank Lord and the respondent Personnel Committee shall comply with the requirement to state the reason for an executive session pursuant to §1-200(6)(A), G.S., with greater specificity. In the case of such an executive session, the respondent Frank Lord and the respondent Personnel Committee shall state either the name of the person to be discussed, or if only one person occupies a given position, the position of the person to be discussed. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 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:

 

Bradshaw Smith

23 Ludlow Road

Windsor, CT 06095

           

Stephen F. Mitchell, As a Member,

Board of Directors, Greater Hartford

Transit District; Frank Lord, As a Member,

Personnel Committee, Greater Hartford

Transit District; and Personnel Committee,

Greater Hartford Transit District,

c/o Michael P. Shea, Esq.

Day Pitney LLP

242 Trumbull Street

Hartford, CT 06103

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-355FD/paj/12/19/2007