FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was scheduled to be heard as a contested case on July 28, 2009 at 2:00 PM, at which time the respondents appeared, but the complainant did not appear to prosecute this case.  In a Report of Hearing Officer dated July 28, 2009, the hearing officer recommended that this complaint be dismissed for failure to prosecute.  At its regular meeting of August 26, 2009, the Commission heard argument from the complainant and the respondents with regard to this case.  The complainant requested that this matter be reopened and scheduled for a contested hearing.  The respondents requested that the Commission adopt the hearing officer’s recommendation that this case be dismissed.  The Commission granted the complainant’s request, and reopened this matter.  

This matter was then heard as a contested case on September 21, 2009 at 2:00 PM, 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.      It is found that the complainant is a member of the respondent board.

 

3.      By letter dated and filed January 9, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by conducting an illegal executive session on December 10, 2008, at which time the complainant claims he was discussed without notice.  The complainant further claims that the respondents violated the FOI Act in the way they convened the executive session, and by failing to state publicly the reason for inviting the town’s business manager into the December 10, 2008 executive session.  The complainant requested the imposition of civil penalties against Superintendent Natalie Pukas, and Board of Education Members Ellie Banker, Leroy Briscoe, John Keane, David McCord, Mary Ann Ricker, Darren Robert, and Cres Secchiaroli.

4.      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.”

5.      Section 1-200(6), G.S., provides in relevant part:

“Executive sessions” means 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  ….

 

6.      It is found that an executive session was identified as an action item on the agenda of the respondent board of education’s (hereinafter the “respondent board” or the “board”) December 10, 2008 regular meeting as “Proposed for Executive Session,” and that this agenda item included the following subtopics:  “a. Evaluation of Non-Bargaining Unit Employees;        b. Certified Employees’ Contract Issues; and c. Collective Bargaining Update—Non-Certified Employees.” 

7.      It is found that the complainant was present at the December 10, 2008 regular meeting of the respondent board until 10:30 PM, at which time he left the meeting to attend to another obligation.  It is further found that, at the time the respondent board moved into executive session, the complainant was no longer in attendance at the meeting.

8.      It is further found that, as a member of the respondent board, the complainant could have attended the December 10, 2008 executive session portion of the meeting.

9.      The complainant contends that he received information on December 11, 2008 that his performance was discussed during the executive session portion of the respondent board’s December 10, 2008 regular meeting. 

10.  It is found that, on December 12, 2008, the complainant sent an email to all of the respondent board members, inquiring as to whether the board had discussed his performance during the portion of the December 10, 2008 executive session described in paragraph 6.a, above.  It is found that none of the board members replied to the complainant’s email.

11.   Based on the testimony of the respondents, it is found that the complainant was not discussed during any portion of the respondent board’s December 10, 2008 executive session.  It is further found that the purpose of the December 10, 2008 executive session identified in paragraph 6.a, above, was to discuss the evaluation of business manager Charles McCarthy. 

12.  It is further found that the respondent board members did not respond to the complainant’s December 12, 2008 email referred to in paragraph 10, above, because it was their understanding that such a seriatim communication could have constituted an unnoticed, illegal meeting of the board.  The Commission notes that the respondents are not required under the FOI Act to answer questions. 

13.  Based on the findings above, it is concluded that the respondents did not violate the FOI Act by discussing the complainant’s performance in executive session without providing him prior notice, as alleged in the complaint.

14.  The complainant also contends that the respondent board did not properly convene the executive session because the purpose of the executive session was not articulated as part of the oral motion to move into executive session.  The complainant also contends that the respondent board did not state on the record the reason for inviting the town’s business manager, Charles McCarthy, into the executive session.

15.  Section 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. 

 

16.  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.

 

17.  It is found that the minutes of the December 10, 2008 meeting with regard to the motion to adjourn to executive session state the following:

Executive Session – On a motion by Mr. Keane, seconded by Mr. Briscoe, the Board voted unanimously to adjourn to Executive Session for the Purpose of Evaluation of Non-Bargaining, Certified Employee’s Contract Issue, and Collective Bargaining Update – Non-Certified Employees and to invite Mr. McCarthy into such session for the Evaluation of Non-Bargaining Unit Employees’ portion. 

 

18.  Based on the testimony at the hearing, however, it is found the chairman of the respondent board made an oral motion to move the December 10, 2008 meeting into executive session, but did not state the reasons for the executive session, as required pursuant to §1-225(f), G.S.   

19.  It is further found that, as part of the oral motion to move the December 10, 2008 meeting into executive session, the chairman of the respondent board stated that the board was inviting the town’s business manager into the executive session. 

20.  Based on the findings in paragraph 18, above, it is concluded that, because reasons for moving the December 10, 2008 meeting into an executive session were not articulated, the respondents violated the provisions §1-225(f), G.S.  However, it is found that the respondent superintendent is not a member of the respondent board.  Accordingly, it is concluded that the respondent superintendent did not violate the FOI Act, as alleged in the complaint. 

 

21.  Because there is no requirement that a public agency state, as part of its motion to move a meeting into an executive session, the reasons why a particular individual is being invited into such session, it is concluded that the findings in paragraph 19, above, do not constitute a basis upon which to find that the respondents violated the FOI Act.    

 

22.  The Commission declines to consider the imposition of civil penalties. 

 

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

 

1.  Henceforth, the respondent board of education shall strictly comply with the requirements of §1-225(f), G.S.

2.  The complaint against the respondent superintendent is dismissed. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 16, 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:

 

Robert Testa

22 Pinecrest Road  

North Stonington, CT 06359

 

Natalie Pukas, Superintendent of Schools,
North Stonington Public Schools; Darren Robert,
Chairman, Board of Education, North Stonington
Public Schools; David McCord, Vice Chairman,
Board of Education, North Stonington Public
Schools; William Briscoe, Eleanor Banker,
Cres Secchiaroli, Mary Ann Ricker, and
John Keane, as members, Board of Education,
North Stonington Public Schools; and Board of
Education, North Stonington Public Schools

C/o Anne H. Littlefield, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-021FD/sw/12/21/2009