FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 4, 2008, and November 18, 2008, at which times 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 of complaint dated and mailed on April 18, 2008, and filed on April 21, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

(a)    holding a “secret” meeting on March 5, 2008 to discuss his employment (the “March 5 meeting”);

 

(b)   holding a meeting on March 18, 2008 (the “March 18 meeting”), which was not properly noticed, and holding an executive session during the March 18, 2008 meeting to discuss the complainant and another individual, without notifying such individuals and providing them the opportunity to have such discussion held in open session; and

 

(c)    holding a “secret” meeting on April 1, 2008 (the “April 1 meeting”) to discuss the complainant’s employment, and then voting to place him on administrative leave.

 

3.  The complainant seeks civil penalties against the respondents, as well as an order from the Commission declaring null and void the action taken by the respondents at the April 1 meeting.

 

4.  Section 1-206(b)(1), G.S., provides, in relevant part:

 

Any person…wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal there from to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.

 

5.  With regard to the alleged March 5 meeting, described in paragraph 2(a), above, the complainant testified at the hearing in this matter, and it is found that, he received notice in fact of such meeting on either March 6, 2008 or March 7, 2008.  It is therefore found that the complainant failed to file his complaint, as it relates to the allegation described in paragraph 2(a), above, “not later than 30 days after” he received notice in fact of the alleged violation.

 

6.  It is therefore concluded that the Commission lacks jurisdiction to consider the allegation described in paragraph 2(a), above. 

 

7.  With regard to the March 18 meeting, described in paragraph 2(b), above, it is found that such meeting was an “unnoticed” meeting.  However, it is also found that the complainant had notice in fact of the March 18 meeting, on March 18, 2008.  It is therefore found that the complainant failed to file his complaint, as it relates to the allegation described in paragraph 2(b), above, “not later than 30 days after” he received notice in fact of the alleged violation, or, on or before April 17, 2008.

 

8.  It is therefore concluded that the Commission lacks jurisdiction to consider the allegation described in paragraph 2(b), above.

 

9.  With regard to the allegation described in paragraph 2(c), above, it is found that, on April 1, 2008, the respondent Housing Authority held a meeting for the purpose of discussing the complainant’s performance and employment.  It is further found that, at the conclusion of such discussion, the respondents voted to place the complainant on administrative leave. 

 

10.  At the hearing in this matter, the respondents conceded, and it is found that, with regard to the April 1 meeting, they did not post an agenda prior to the meeting, notify the media or attempt to notify the public in anyway, or notify the complainant of such meeting. Rather, the respondents contended at the hearing in this matter that an emergency existed on March 31, 2008, which required them to dispense with the notice requirements of the FOI Act.

 

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

 

Notice of each special meeting of every public agency… 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 of such subdivision for any public agency of a political subdivision of the state…. The…clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting; provided, in case of emergency…any such special meeting may be held without complying with the foregoing 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…the clerk of such political subdivision…not later than seventy-two hours following the holding of such meeting.  The notice shall specify the time and place of the special meeting and the business to be transacted. 

 

12.  Section 1-225(a), G.S., provides, in relevant part, that “[t]he meetings of all public agencies … shall be open to the public.”

 

13.   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, Anthony Gaeta v. Board of Selectmen, Town of Ridgefield, Docket #FIC 2006-224, affirmed, Board of Selectmen, Town of Ridgefield v. FOIC, Docket No. CV 07014299, Conn. Super. Ct. (J.D. New Britain, Jan. 8, 2008), appealed, Board of Selectmen Town of Ridgefield v. FOIC, Docket No. AC 29587; 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.

 

14.  It is found that the complainant has been the executive director of the respondent Housing Authority (“Housing Authority”) since 2002.  It is found that in August 2007, the complainant hired Marlene Walsh to be director of policy and affordable housing development, and that employees of the Housing Authority (the “employees”) were unhappy with such decision.  It is also found that, in January 2008, an anonymous letter was sent to the mayor of the town of East Hartford and to the commissioners of the Housing Authority, in which the author accused the complainant of having an inappropriate relationship with Ms. Walsh, and of other misconduct (the “anonymous letter”).  It is found that, overall, the morale of the employees was low during January and February of 2008, under the complainant’s leadership, and that the commissioners had concerns about the complainant’s leadership and performance.

 

15.  It is found that, in approximately February 2008, the respondent chairman (“chairman”) created a survey, consisting of a series of questions related to the current state of the Housing Authority (the “survey”), and that the survey was distributed to the employees in approximately mid-February 2008.   It is found that the instructions contained in the survey stated that the employees should complete the survey and return it by February 29, 2008, and that the surveys could be signed or unsigned, sealed or unsealed.

 

16.  It is found that approximately 16 of the 39 employees returned the survey, and that, of the 16 surveys that were returned, several contained negative comments about the complainant.  Such comments included statement such as:  “ED seems to have very little contact or interest in the agency”, “Director thinks he is untouchable—does as he pleases”, “Hired Marlene to keep him company—Big Salary”.

 

17.  It is found that, at the March 18 meeting, described in paragraphs 2(b), 7 and 8, above, the commissioners questioned the complainant about his relationship with Walsh, and asked him to respond to the allegations in the anonymous letter; discussed with the complainant the results of the survey and employee morale; and asked the complainant to prepare a report documenting the amount of time he spent working.  It is found that the complainant became upset during this meeting.

 

18.  It is found that, on March 20, 2008, the complainant held a staff meeting with the employees to discuss the anonymous letter and the survey (the “March 20 staff meeting”).  Approximately 26 to 28 employees were in attendance at such meeting. 

 

19.  It is found that the complainant became upset and raised his voice during the March 20 staff meeting. 

 

            20.  It is found that, on approximately March 22 and March 23, the chairman received phone calls from “a couple people” who had been in attendance at the March 20 staff meeting, who reported to the chairman that the complainant had become very upset at such meeting and had made some of the employees cry because the complainant shouted at them.            

 

            21.  It is found that the complainant did not engage in physical violence toward any employee and did not threaten to use physical violence against any employee.  It is also found that the police were not called to the March 20 staff meeting by any individual.

 

            22.  The chairman testified at the hearing in this matter, that, based upon the phone calls he received, he “had concern for the safety of the people who worked there” and that he feared that “something dreadful would happen.”   It is found that the chairman himself did not attend the March 20 staff meeting, nor did the chairman ever personally discuss what had occurred at the March 20 staff meeting with the complainant, because by that time, “they were not speaking.” 

 

23.  It is found that, on March 27, 2008, the chairman, and two other commissioners travelled to, and attended, a multi-day conference of the National Association of Housing Relocation Officials in Washington, D.C.

 

            24.  The chairman testified, at the hearing in this matter, and it is found that, he determined that there was an emergency on March 31, 2008, after he had “thought about it for a week,” and he had “started to develop the idea that he should be doing something about” his concerns related to the March 20 staff meeting. 

 

25.  It is found that, between March 23, 2008, and April 1, 2008, the complainant remained in his position as the executive director.

 

26.  Respondent Kate testified at the hearing in this matter, and it is found that, in addition to the complainant’s behavior at the March 20 staff meeting, another factor that contributed to the decision to call an emergency meeting was the feeling by the commissioners that the complainant “wasn’t listening to” them.  Respondent Kate further testified that, because they feared “retribution” by the complainant, they held an emergency meeting so that they would not have to give the complainant notice.  Additionally, respondent Kate testified, and it is found that, he believed that “emergency” meant “something that required immediate attention.”

 

27.  It is found that the minutes of the April 1 meeting, described in paragraphs 2(c), 9 and 10, above, state the nature of the emergency as follows:

 

“STATEMENT OF NATURE OF EMERGENCY:

 

              Whereas, Pursuant to Chapter 128 of the Connecticut General Statutes the authority over and the responsibility for the Housing Authority rest in the Board of Commissioners; and

             

              Whereas, the Executive Director of the Housing Authority, Terrence J. Madigan … serves at the pleasure of the Board of Commissioners; and

             

              Whereas, a clear divergence of philosophy has occurred between the Executive Director and the Board of Commissioners, which divergence the Board of Commissioners had attempted to discuss with the Executive Director on several occasions, but to no avail; and

             

              Whereas, this difference in philosophy on the part of the Executive Director is now at variance with the Board of Commissioners to such an extent that it has resulted in an extremely volatile situation at the Housing Authority; and

             

              Whereas, the current demeanor of the Executive Director has significantly impaired his ability to effectively interact not only with the Board of Commissioners, but also with the vast majority of the Housing Authority employees, and

             

              Whereas, the situation is now impacting the morale of the agency so significantly that immediate action on the part of the Board of Commissioners is required, justifying the calling of this emergency meeting.”

 

28.  It is found that there was no evidence produced at the hearing in this matter, other than speculation by the respondents, that the complainant’s behavior, “current demeanor” or “divergence of philosophy,” in any way created a “volatile situation” that warranted “concern for the safety of the people who worked,” or fear that “something dreadful would happen” at the Housing Authority. 

 

29.  With regard to the allegation described in paragraph 2(c), above, it is found that the situation described in paragraphs 14 through 24, above, did not constitute an “emergency” within the meaning of §1-225(d), G.S.

 

30.  It is therefore concluded that the respondents violated the FOI Act as alleged.

 

31.  With regard to the complainant’s request for civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

32.  It is found that respondent Keating, by determining that circumstances existed that necessitated an “emergency” meeting of the Housing Authority, is the official directly responsible for the denial of the rights found in paragraphs 11 and 12, above.  It is further found that such denial of such rights was without reasonable grounds. 

 

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

 

            1.   The respondents’ action to place the complainant on administrative leave, as described in paragraph 2(c) of the findings, above, is hereby declared null and void.

 

            2.  Respondent Keating shall forthwith remit a civil penalty in the amount of $500.00 to the Commission.

 

 

 

 

                       

Approved by Order of the Freedom of Information Commission at its regular meeting of January 29, 2009.

 

 

____________________________

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:

 

Terrence Madigan

c/o Leon M. Rosenblatt, Esq.

10 North Main Street

West Hartford, CT  06107

 

Robert Keating, Chairman, Housing Authority,

Town of East Hartford; James Kate,

Vice-Chairman, Housing Authority; Town of East

Hartford; Wanda Franek, Member, Housing

Authority, Town of East Hartford; and Housing

Authority, Town of East Hartford

c/o Ralph J. Alexander, Esq.

Willard & Alexander, LLC

225 Oakland Road, Suite 306

South Windsor, CT  06074

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-281FD/sw/2/2/2009