FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 1, 2008, at which time the complainant and the respondents 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), G.S.

 

2.  By letter dated January 15, 2008, and filed January 16, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by discussing, in executive session, during its December 18, 2007 special meeting, a personnel matter, when the agenda for such meeting stated “Discussion of written legal opinion from Town’s Labor Counsel regarding incoming Town Manager’s contract (anticipated executive session).”

 

3.  The complainant seeks civil penalties against the respondents, as well as an order from the Commission requiring the respondents to send a “formal letter … to all East Hampton registered voters,” acknowledging that their actions violated the FOI Act.

 

4.  It is found that, on October 24, 2007, an employment contract between Mr. James Thomas and the Town Council of the town of East Hampton was unanimously approved and executed (the “contract”).  It is further found that the terms of the contract were to commence on January 1, 2008.

 

5.  It is found that, in the interim, however, on November 5, 2007, municipal elections occurred in the town of East Hampton, and, as a result of such elections, a majority of new members were elected to the Town Council. 

            6.  It is found that, at some time prior to the December 18^th special meeting, referenced in paragraph 2, above, the chairperson of the Town Council requested an opinion from the town’s labor attorney regarding “the legality” of the contract.

 

            7.  It is found that, in addition to the concerns regarding the legality of the contract, certain members of the Town Council also had concerns about Mr. Thomas’ character and reputation, including concerns about some prior litigation in which Mr. Thomas had been involved.  It is also found that members of the Town Council received, just prior to the December 18, 2007 special meeting, a copy of a December 17, 2007 letter addressed to the Town Council, from the president of St. Clements Castle, in which the president described his recent dealings with Mr. Thomas as “abrasive” and “aggressive” (the “St. Clements letter”). 

 

8.  It is found that the respondent Town Council held a special meeting on December 18, 2007. 

 

9.  It is found that the agenda for the December 18, 2007 special meeting stated, in relevant part:  “Discussion of written legal opinion from Town Labor Counsel regarding incoming Town Manager’s contract (anticipated executive session).”

 

            10.  It is found that, at the December 18, 2007 special meeting, the chairperson moved to enter executive session to discuss the legal opinion referenced in paragraph 9, above, and that an attorney for Mr. Thomas, who was present at such meeting, stated that he was in attendance on behalf of Mr. Thomas and requested that such discussion be held in open session.

 

            11.  It is found that the town’s labor attorney responded by stating that the purpose of the executive session was not to discuss a personnel matter, but was for the purpose of discussing an opinion of counsel, and that therefore, Mr. Thomas (or his representative) did not have the right to require that the discussion be held in open session or to be present during the executive session.

 

            12.  It is found that the respondent Town Council voted to enter executive session for the purpose of discussing a written legal opinion from the town’s labor counsel, and did enter into executive session.

 

13.  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….

 

14.  Section 1-200(6), G.S., defines “executive session” as:

 

…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; … (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.

 

15.  Section 1-200(5), G.S., defines “public records or files” as:

 

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

            16.  It is found that the written legal opinion, referenced in paragraph 12, above, is a public record within the meaning of §1-200(5), G.S.

 

            17.  Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of  “communications privileged by the attorney-client relationship.”

 

18.  The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  That law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.

 

 19.  Section 52-146r(2), G.S., defines “confidential communications” as:

 

all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .

 

20.  The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.”  Maxwell, supra at 149.

 

21.  It is found that the chairperson of the respondent Town Council requested confidential legal advice from the respondent Town Council’s attorney concerning the contract described in paragraph 4, above.  It is further found that the respondent Town Council’s attorney transmitted his legal opinion via letter addressed to the chairperson of the respondent Town Council in confidence.  It is found that the letter was disclosed only to the members of the respondent Town Council, and that the respondent Town Council maintains the confidentiality of the attorney’s legal advice and written legal opinion.

 

22.   It is found that the written legal opinion was solicited by the chairperson of the respondent Town Council, in the course of her duties, and was related to items under consideration by the respondent.

 

23.   It is found that the written legal opinion is a communication related to legal advice sought from a professional legal advisor in his capacity as such, and that the communication was made in confidence.

 

24.   It is found, therefore, that the written legal opinion constituted a record of communication privileged by the attorney-client relationship.  It is found that the respondent Town Council did not waive the privilege.

 

25.  It is found that the FOI Act exempts such record from mandatory disclosure, pursuant to the provisions of §1-210(b)(10), G.S.

 

26.  It is found that the members of the respondent Town Council discussed the written legal opinion during its December 18, 2007 executive session and that such discussion was permissible, pursuant to §§1-200(6)(E) and 1-210(b)(10), G.S., of the FOI Act.

 

27.   It is found that during the executive session, the members of the respondent Town Council restricted their discussion to the attorney’s written legal opinion.  However, it is found that some members made comments regarding, and references to, the St. Clements letter, the prior litigation in which Mr. Thomas had been involved, and of Mr. Thomas’ character generally, during the executive session.  However, it is further found that such comments and references arose out of the discussion of the legal opinion, did not constitute a separate discussion “concerning the appointment, employment, performance, evaluation, health or dismissal” of Mr. Thomas, and did not constitute the purpose of such executive session.

 

28.   Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged.

 

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

            1.   The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 9, 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:

 

Mary Ann Dostaler

c/o Paul Guggina, Esq.

Tyler Cooper & Alcorn, LLP

City Place – 35^th floor

Hartford, CT 06103-3488

           

Melissa Engel, Chairperson, Town Council,

Town of East Hampton; Thomas Cordeiro,

Vice-Chairman, Town Council; Town of East

Hampton; and Town Council, Town of

East Hampton

c/o Mark J. Sommaruga, Esq.

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT 06105-4286

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-041FD/paj/7/14/2008