FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 3, 2008, 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 received and filed on August 6, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by holding an executive session on July 14, 2008, where attendance was not limited to members of the respondent district or to persons invited by the fire district to present pertinent testimony or opinion.  In addition, the complainant alleged that the respondents required the complainant to leave the building during such executive session.

3.      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….

 

4.      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: …  (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency … is a party until such litigation or claim has been finally adjudicated or otherwise settled[.]

 

5.      Section 1-231(a), G.S., provides:

 

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 and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

 

6.      It is found that the respondents convened in executive session during their regular meeting of July 14, 2008 to discuss pending litigation to which the respondent fire district is a party.

7.      It is found that four staff members of the respondent fire commission attended the executive session, which lasted about 30 minutes.  It is found that the four staff members had worked as a group to compile information bearing on litigation strategy to present to the commission, and that each staff member presented different information for the commission’s consideration.

8.      It is found that no votes were taken during the executive session.

9.      At the hearing in this matter, the complainant alleged, and the respondents conceded, that the minutes of the executive session failed to disclose all persons who were in attendance.  It is found that the respondents’ omission was due to a good faith misunderstanding of the requirements of the FOI Act with respect to the minutes of an executive session. 

10.   It is further found, however, that the complainant did not raise the issue of the inadequacy of the minutes in his complaint to this Commission; therefore the Commission declines to rule on the merits of the alleged violation, described in paragraph 9, above. 

11.   It is found that prior to convening in executive session, the respondents demanded that the public, which included only the complainant, leave the building.

12.   The respondents claim that they needed the public to leave the building because there was no other place for the public to wait where the public would not be able to hear the respondents’ discussion in executive session. 

13.   The complainant contends that the respondents’ explanation is pretext and that he was being punished for challenging the respondents in the past.

14.   It is found that the respondents’ meetings are held in a room in a small building and that the discussions can be heard from the only other room in the building. 

15.   Although it is concluded that the respondents did not violate the FOI Act by requiring the complainant, as a member of the public, to leave the building during the executive session of July 14, 2008, it is understandable that the complainant felt as if he were being “thrown out.”

16.    It is found that, in response to the complainant’s appeal to this Commission, the respondents adopted a resolution at their November 10, 2008 regular meeting promising to accommodate the public in attendance somewhere in the building on a case by case basis on the infrequent occasions that it goes into executive session.  It is found that the respondents are considering making room in their garage and outfitting it with a table and a few chairs, for instance.

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

 

1.      The complaint is dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 25, 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:

 

Denis O'Sullivan

238 North Street

Watertown, CT 06795

 

Chairman, Board of Directors, Watertown Fire District;

and Board of Directors, Watertown Fire District,

C/o Franklin G. Pilicy, Esq.

365 Main Street

Watertown, CT 06795

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-520FD/sw/3/5/2009