FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on June 28, 2007, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed March 6, 2007, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act at one of its meetings by:

 

(a)    Failing to name, in their agenda, the person they intended to discuss in executive session;

(b)   Failing to name, in their motion to convene in executive session, the person they intended to discuss in executive session;

(c)    Permitting the superintendent and the board of education attorney to remain in the executive session for a longer period than necessary to give testimony or opinion;

(d)   Convening in executive session to discuss an unnamed or “phantom” employee; and

(e)    Taking action in executive session, in the form of tacit approval of the superintendent’s action.

 

3.  The complainant also requested that the respondents be ordered to create and file minutes of the subject meeting; not be allowed to conduct any de facto votes in executive session by tacit approval or consensus; and hereinafter to disclose the name of any individual who is the topic of an executive session under §1-200(6)(A), G.S.

 

4.  It is found that the respondent Board of Education held a regular meeting on February 13, 2007.

 

5.  It is found that the agenda for this meeting listed an executive session without a description of the business to be transacted, and without a statutory reason for the executive session.

 

6.  It is found that the superintendent of schools had suspended a teacher some time prior to the meeting. 

 

7.  It is found that the superintendent, together with the board of education’s attorney, wished to apprise the board members of the teacher’s suspension, the course of action that the superintendent was pursuing, and the options available to the superintendent.

 

8.  It is found that the executive session was placed on the agenda by the chairman of the board of education at the superintendent’s request.

 

9.  It is found that the respondent board convened in executive session without naming the teacher it intended to discuss in executive session, or the statutory purpose of the executive session, and invited its superintendent and its attorney to attend.

 

10.  It is found that the executive session began with the board’s attorney and, to a lesser extent, the superintendent, describing to the board in general terms the acts by the teacher that were the basis for the teacher’s suspension.  The board’s attorney then informed the board of  the options that the superintendent was considering, specifically termination under §10-151, G.S., or seeking the teacher’s resignation, but the attorney did not make any recommendations.  The chairman gave every member of the board an opportunity to address questions to the superintendent and the attorney, and an extensive period of questions and answers followed.  The superintendent and the attorney were present for the entire executive session.  The board took no action and reached no consensus concerning the superintendent’s course of conduct.  The board also issued no directive or recommendations to either the superintendent or its attorney.  The executive session lasted approximately one and one- quarter hours.

 

11.  Section 1-225(c), G.S., provides in relevant part:

 

The agenda of the regular meetings of every public agency, except for the General Assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business ….  Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.

 

12.  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.”

 

13.  Section 1-200(6)(A), G.S., in relevant part 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 ….”

 

14.  The respondents concede that the agenda item described in paragraph 5, above, was insufficiently specific to describe the business described in paragraph 10, above.

 

15.  It is concluded that the respondents violated §1-225(c), G.S., by failing to sufficiently describe the business to be transacted under the agenda item described in paragraph 5, above.

 

16.  The complainant contends that the respondents should be required not merely to describe the business to be transacted in a reasonably understandable way, but explicitly to name in their agendas the individual to be discussed in executive session each time the respondents convene in executive session pursuant to §1-200(6)(A), G.S.

 

17.  The Commission has not to date ruled that it is necessary in every case to name the specific individual to be discussed in executive session, and in its discretion declines at this time to establish such a unvarying rule or direct such an order to the respondents.

 

18.  With respect to the complainant’s allegation described in paragraph 2(b), above, that the respondent board failed to name the individual to be discussed when it moved to convene in executive session, §1-225(f), G.S., 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.

 

19.  It is concluded that, while §1-225(f), G.S., requires an agency to state the reasons for an executive session, as such reasons are defined in §1-200(6), G.S., it does not expressly require an agency to name the individual who is to be discussed pursuant to §1-200(A), G.S.

 

20.  It is concluded that the respondents violated §1-225(f), G.S., by failing to state the reason, as defined in §1-200(6), G.S., for their executive session.

 

21.  However, with respect to the complainant’s actual allegation, it is concluded that the respondents did not violate §1-225(f), G.S., by failing to name the individual to be discussed in executive session at the time it moved to so convene.

 

22.  With respect to the allegation contained in paragraph 2(c), above, §1-231(a), G.S.,  provides in relevant part:

 

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion

 

23.  It is found that it was necessary for the board’s superintendent and attorney to remain in executive session for the duration of that session, in order for them to present information to the board and respond to the board’s questions.  Specifically, it is found that the respondents did not conduct any discussion independent of the presentations by the superintendent and the attorney, or independent of the questions directed to, and answered by, the superintendent and attorney.

 

24.  It is therefore concluded that the respondents did not violate §1-231(a), G.S.

 

25.  With respect to the allegation contained in paragraph 2(d), above, it is found that the respondent board convened in executive session to discuss the performance and employment of a suspended employee teacher within the meaning of §1-200(6)(A), G.S., notwithstanding the respondent’s reluctance to identify that teacher publicly.

 

26.  It is therefore concluded that the respondents did not violate §§1-225(a) and 1-200(6)(A), G.S., by convening in executive session to discuss the performance and employment of a suspended teacher.

 

27.  With respect to the allegation described in paragraph 2(e), above, §1-206(A), G.S., limits an agency only to “[d]iscussion concerning” the matters enumerated in that section.  The Commission has consistently ruled, therefore, that action beyond discussion, such as a vote, is not permissible in an executive session convened pursuant to §1-206(A), G.S.

 

28.  It is found, however, that the respondents took no action, directed no action, and reached no consensus in executive session, but only received information, made comments, asked questions, and received answers.  Specifically, it is found that there was disagreement among the members of the board of education, and that the respondent chairman could discern no general agreement among the members.  Additionally, it is found that the superintendent’s actions with respect to the suspended teacher did not require board approval or direction, and that none was given, tacitly or otherwise.

 

29.  It is therefore concluded that the respondents did not violate §§1-225(a) and 1-206(A), G.S., by voting in executive session.

 

30.  With respect to the remedies requested by the complainant, as described in paragraph 3, above, it is concluded that none of them are appropriate in this case.

 

 

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

 

1.  With respect to the violations described in paragraphs 15 and 20 of the findings, above, henceforth the respondents shall strictly comply with the requirements of §1-225(c), G.S.

 

            2.  With respect to the remaining allegations, the complaint is dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 27, 2008.

 

________________________________

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:

 

Jay Lewin

357 Wellsville Avenue

New Milford, CT 06776

           

Chairman, Board of Education,

New Milford Public Schools; and

Board of Education,

New Milford Public Schools

c/o Robert J. Murphy, Esq.

646 Prospect Avenue

Hartford, CT 06105

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-133FD/paj/3/3/2008