FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 21, 2010, at which time the complainant and respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      By letter dated and filed on July 13, 2009, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act at its June 8, 2009 meeting (the “June 8^th meeting”) by convening in executive session to discuss ending the complainant’s employment with the Town of Beacon Falls Department of Public Works, without notifying the complainant or placing the matter on its agenda.  The complainant also requested that the Commission declare any actions taken at the June 8^th meeting to be null and void.

 

3.      It is found that in May 2009, the complainant and the Town of Beacon Falls signed a memorandum of agreement placing the complainant on probationary status as defined in his collective bargaining agreement with the Town, and including a provision stating that any violations of such agreement will result in immediate termination from employment. 

 

4.      It is found that on June 1, 2009, the complainant did not appear for work. 

 

5.      It is found that prior to the respondent’s June 8^th meeting, the complainant was ordered by his supervisor to clear out his locker.  The respondent claims that the complainant’s failure to report to work and to properly notify his superior of his absence, were grounds for immediate termination of employment. 

 

6.      At the hearing, the complainant testified that he had knowledge that his employment was terminated prior to the June 8^th meeting.

 

7.      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.”

 

8.      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.

 

9.      Section 1-200(6), G.S., provides that “executive sessions” mean:

 

[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…. 

 

10.  Section 1-225(c), G.S., provides:

 

The agenda of the regular meetings of every public agency, except for the General Assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business, and (2) in the office of the Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency.  For any such public agency of the state, such agenda shall be posted on the public agency’s and the Secretary of the State’s web sites.  Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.

 

11.  It is found that the respondent held a regular meeting on June 8, 2009.

 

12.  It is found that the agenda of the June 8^th meeting indicates that the respondent intended to enter into executive session “if necessary.”    

 

13.  It is found that the minutes of the June 8^th meeting reflect that the respondent entered into executive session to discuss “various personnel matters.” 

 

14.  It is found that the agenda of the June 8^th meeting did not reasonably apprise the public of the business to be transacted in the executive session.  It is further found that the respondent did not vote by two-thirds majority to add such item to the agenda.

 

15.  It is found that the respondent took up in executive session the employment and dismissal of the complainant among other employment issues, without having described such business on the June 8^th agenda or at the meeting prior to such session, and then voted publicly to terminate the complainant’s employment. 

 

16.  It is found that the respondent did not give the complainant notice that his employment would be discussed in executive session or an opportunity to require that the session be conducted publicly.      

 

17.  It is found that, on or about June 12, 2009, the complainant received a letter informing him that his employment was discussed at the June 8^th meeting and advising him that, effective immediately, his employment was terminated.

 

18.  The respondent contends that by signing the memorandum of agreement, described in paragraph 3, above, the complainant expressly waived any recourse that the complainant may have against the Town for immediately terminating his employment, and that the complainant himself failed to request notice of any discussion of his employment by the respondent or that he be afforded the opportunity to require any such discussion to be held at an open meeting.  For these reasons, the respondent argues that the complaint is without grounds and should be dismissed.  However, the Commission is not persuaded that the complainant waived his right to file a FOI complaint against the respondent. 

 

19.  To the extent that the respondent did in fact discuss the complainant’s performance and employment, the respondent failed to notify the complainant that his employment and dismissal would be discussed, and failed to give him the opportunity to require that discussion be held at an open meeting pursuant to §1-200(6), G.S.

 

20.  It is concluded that the respondent violated §§1-225(a) and 1-225(c), G.S., in this matter.

 

 

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

 

1.  Henceforth, the respondent shall strictly comply with the requirements of §1-225, G.S.

 

2.  The action taken at the June 8^th meeting with respect to the complainant’s employment is declared null and void.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 2010.

 

 

 

____________________________

Petrea A. Jones

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:

 

William Stults

18 Bridge Street-Unit 4G

Naugatuck, CT 06770

 

Board of Selectmen, Town of Beacon Falls

c/o Francis E. D’Urso, Esq.

Business Group Law Center, LLC

101 West Main Street

Branford, CT 06405

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-406FD/paj/6/1/2010