FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 22, 2008, 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 of complaint dated and filed May 9, 2008, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by discussing his employment, in executive session, during its April 30, 2008 special meeting, without giving him “prior notice that [he] would be the topic of discussion at this meeting” and in failing to offer him “the opportunity to attend the Executive Session.”  The complainant seeks the imposition of civil penalties against the respondent.

 

3.  It is found that the respondent held a special meeting on April 30, 2008 (the “April 30 meeting”). 

 

4.      It is found that the agenda for such meeting stated, in relevant part:

 

            2.  Proposed for Executive Session

                        a. Discussion of Superintendent’s Performance

           

5.  It is found that the April 30 meeting was called to order at 6:30 pm, that the respondent voted to enter into executive session for the purpose of discussing the superintendent’s performance, specifically, as it related to allegations of plagiarism, and that the respondent did enter into executive session, at approximately 6:37 pm. 

 

6.  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….

 

7.  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; …

 

8.  It is found that, on April 30, 2008, the complainant was the principal of Wheeler High School/Middle School.  It is also found that, on April 28, 2008, the complainant sent an email to the superintendent and the members of the respondent board (the “April 28 email”), expressing his dissatisfaction with the superintendent and with certain recent budget cuts.

 

9.  It is found that certain members of the respondent board read the April 28 email prior to the April 30 meeting, and were upset about some of the statements made in such email. 

 

10.  It is found that, during the executive session, the superintendent’s performance was discussed.  It is found that a significant portion of the executive session consisted of:  a presentation of a defense by the superintendent and her attorney regarding the allegations, deliberations by the board regarding appropriate disciplinary action, drafting of a document entitled “Reprimand” (the “Reprimand”), and drafting of a report regarding the respondent’s findings with regard to the matter.  It is also found that negotiations between the attorney for the superintendent and the attorney for the respondent took place during the executive session, which created “down time” for members of the respondent board who were not directly participating in those negotiations. 

 

11.  It is found that the executive session, described in paragraph 5, above, lasted approximately five hours, and was not recessed or adjourned at any time during such five-hour session. 

 

12.  It is found that, during the executive session, members of the respondent board also discussed the April 28 email, the complainant’s performance as principal of Wheeler High School, and the complainant’s employment; specifically, whether or not there was a way that the complainant could be fired or terminated.  It is further found that the respondent did not notify the complainant that his employment and performance was to be discussed during the executive session, and did not give the complainant the opportunity to require that the discussion be held in an open meeting, as required by §1-200(6), G.S. 

 

13.  It is found that the discussion of the complainant’s employment and performance took place among certain members of the respondent board during a “down time” period while the attorney for the superintendent and the attorney for the respondent were negotiating the terms of the Reprimand.  

 

14.  It is found that the respondent did not vote to take any action against the complainant based upon its discussion of him during the executive session.

            15.  Accordingly, it is concluded that the respondent violated the FOI Act; however, the Commission declines to consider the imposition of civil penalties in this case.

 

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

            1.  Henceforth the respondents shall strictly comply with the requirements of §§1-225(a), and 1-200(6), G.S.

 

            2. The respondents shall contact the Commission staff within 30 days of the Notice of Final Decision in this matter for an educational workshop.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 2008.

 

 

____________________________

S. Wilson

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:

 

Stephen Bickford

265 Flanders Road

Stonington, CT 06378

 

Board of Education, North Stonington

Public Schools

c/o Victor M. Muschell, Esq.

104 Church Street

Torrington, CT 06790

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-330FD/sw/9/30/2008