FIC2009-038

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
David A. LeBlanc,
		Complainant
	against		Docket #FIC 2009-038
Elaine Adams, Chairman, Town Council, Town of Watertown; Raymond Primini, Vice Chairman, Town Council, Town of Watertown; Gary Bernier, Member, Town Council, Town of Watertown; Richard DiFederico, Member, Town Council, Town of Watertown; Richard Fusco, Member, Town Council, Town of Watertown; Carl Mancini, Member, Town Council, Town of Watertown; and Scott Marotta, Member, Town Council, Town of Watertown,
		Respondents	December 16, 2009

The above-captioned matter was heard as a contested case on July 7, 2009, 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 of complaint filed January 21, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act with respect to executive sessions conducted by the respondents during January 8 and January 15, 2009 Watertown Town Council meetings.

3. It is found that, between September and December of 2008, complaints of misconduct had been lodged with the Watertown Town Council against the chairman of the Watertown Planning and Zoning Commission (“the P&ZC”), who is an appointee of the Town Council.

4. It is found that, after several weeks of depositions, discovery and assembling of documentary evidence, the Town Council held special meetings on the issue of the P&ZC Chairman’s alleged misconduct on January 8 and 15, 2009. The investigation was discussed in executive sessions.

5. It is found that the notice of both meetings listed as item number 2, only “Executive Session on personnel matter.”

6. It is found that the respondents convened in executive session for the stated reason of discussing “personnel matters.”

7. It is found that the purpose of the executive sessions was to discuss the complaints of misconduct against the chairman of the P&ZC. The complaints specifically sought to have the Town Council remove the Chairman from his position.

8. It is found that the allegations of misconduct against the P&ZC chairman were a matter of significant public attention and interest.

9. It is found that the respondents voted during the January 15 executive session to dismiss the complaints of misconduct against the P&ZC chairman and stop the town council’s investigation.

10. It is found that the votes of the respondents were not recorded, put in writing, or made available for public inspection.

11. It is found that the respondents subsequently met on February 17, 2009 and voted in public to dismiss the complaints against the P&ZC chairman.

12. 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. 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 within forty-eight hours and shall also be recorded in the minutes of the session at which taken.

13. 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.

14. 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 ….

15. With regard to notices of special meetings, §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 notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency. [Emphasis added.]

16. The complainant contends that the respondents’ notices of special meetings as described in paragraph 4, above, were inadequate to inform the public of the subject matter of those meetings.

17. In Trenton E. Wright, Jr. v. First Selectman, Town of Windham, Docket #FIC 1990-048, the Commission found that the phrase "executive session - personnel matters" was too vague to communicate to the public what business would be transacted.

18. In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

19. It is found that the respondents’ January 8 and 15 notices of special meeting did not fairly and sufficiently apprise the public of the matters to be taken up regarding the P&ZC Chairman.

20. It is therefore concluded that the respondents violated §1-225(d), G.S.

21. The complainant contends that the respondents should not have voted in executive session.

22. It is concluded that the respondents violated §1-200(6), G.S., by voting on a personnel matter in executive session.

23. The complainant contends that the respondents did not adequately apprise the public of the reason for its executive sessions, prior to convening such sessions.

24. It is concluded, however, that the respondents adequately apprised the public that the reason for its executive session was to discuss the “employment, performance, evaluation, health or dismissal of a public officer or employee,” by stating before the executive session that the reason for the executive session was a personnel matter. In this regard, the Commission notes that §1-225(f), G.S., requires an agency only to state the reason for the executive session within the meaning of §1-200(6), G.S. This requirement is separate from an agency’s obligation under §1-225(d), G.S., to apprise the public of the business to be transacted, a more specific requirement than that of §1-225(f), G.S.

25. With respect to the complainant’s request for the imposition of 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.

26. The standard for when a violation is “without reasonable grounds” is analogous to the legal standard “without any substantial justification.” Connecticut Department of Public Safety v. FOIC, et al., 1997 WL 537117 (Conn. Super.), affirmed, 247 Conn. 341 (1998). Similarly, the phrase “without reasonable justification” has been construed to mean “entirely unreasonable or without any basis in law or fact.” Id., quoting Bursinkas v. Department of Social Services, 240 Conn. 141, 155 (1997).

27. It is concluded that the respondents’ violations of the FOI Act’s open meetings acts were not entirely unreasonable or without any basis in law or fact, but were based on their desire to protect the due process rights of the chairman of the P&ZC, and to protect the Town of Watertown against litigation by the chairman. While these reasons do not comport with the requirements of the FOI Act, they are also not entirely unreasonable. Therefore, a civil penalty is not justified under §1-206(b)(2), G.S.

28. Nothing in this decision shall be construed to approve of the conduct of any hearing in executive session. This issue was not raised by the parties, and has not been addressed herein.

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 contained in §§1-225(a) and (d), and 1-200(6)(A), G.S.

2. The Commission commends the respondents for stipulating that the agenda items and motions at the January 8 and 15 meetings, and the vote taken at the January 15 meeting, did not comply with the FOI Act, and thereby cooperating in the resolution of this matter.

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:

David A. LeBlanc

223 Middlebury Road

Watertown, CT 06795

Elaine Adams, Chairman,