FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 2, 2010, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The matter was consolidated for hearing with Docket #FIC 2009-656; Mike Sikoski v. Nancy Cox, Chair, Board of Ethics, Town of Mansfield; Nora Stevens, Vice Chair, Board of Ethics, Town of Mansfield; Maria Capriola, Assistant to the Town Manager, Town of Mansfield; and Board of Ethics, Town of Mansfield; and Docket #FIC 2009-690; Elizabeth T. Wassmundt v. Board of Ethics, Town of Mansfield.

 

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 received and filed on October 16, 2009, the complainant appealed to the Freedom of Information (“FOI”) Commission, alleging that the respondent violated the FOI Act by convening an improper executive session at its meeting of September 17, 2009.  The complainant alleged that the agenda of the meeting did not indicate that the respondent planned an executive session. The complainant alleged, too, that the purpose of the executive session was improper.

 

3.      Section 1-225, G.S., provides in relevant part that:

 

(a)    The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be public . . .

 

(d)  Notice of each special meeting of every public agency … shall specify the time and place of the special meeting and the business to be transacted. 

 

4.      Section 1-200, G.S., in relevant part, provides:

 

(6) “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; (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210. 

 

5.      It is found that the respondent held a special meeting on September 17, 2009.  It is found that the agenda for the meeting included the “Vice Chairperson’s Report.” (It is found that the vice-chairwoman presided over the September 17, 2009 meeting in the chairman’s absence.)  It is found that the chairman customarily used the Chairman’s Report to raise a variety of items for discussion. 

 

6.       It is found that at the meeting of September 17, 2009, the vice-chairwoman raised the following two items of discussion under “Vice-chairperson’s Report”:  a minority opinion by the chairman dissenting from the respondent’s finding of no probable cause on an ethics complaint, and an e-mail sent by the chairman criticizing the assistant to the town manager, who also served as the respondent’s recording secretary.

 

7.      It is found that the respondent held an executive session to discuss the items referenced in paragraph 6, above.  It is found that the respondent stated at the meeting that the reason for the executive session was to discuss “personnel.”   

 

8.       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 apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”   

 

9.       It is found that the agenda item “Vice-Chairman’s Report” was not sufficiently specific to apprise the public of the matters to be considered at the September 17, 2009 special meeting. 

 

10.   Consequently, it is concluded that the respondent violated §1-225(d), G.S.

 

11.   It is concluded that the FOI Act does not require an agenda to state that an agency plans to hold an executive session, as the complainant alleged.  Docket #FIC 1991-136; John P. Ambrogio and Lewis Perry v. Hamden Board of Police Commissioners.

 

12.   With respect to the complainant’s allegation that the executive session was improper, §7-148h, G.S., in relevant part, provides:

 

(a) Any town, city, district, as defined in section 7-324, or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any official, officer or employee of such town, city, district or borough. The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before any such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause…. 

[Emphasis added.]

 

13.  Section 1-82a, G.S., provides, in relevant part:

 

(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member. …

 

(d) If the commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent…

 

14.   It is found that the discussion of the ethics complaint conducted in private by the respondent on September 17, 2009 was conducted confidentially as permitted by §§7-148h and 1-82a, G.S.  It is found however, that the respondent’s use of the term “executive session” to describe the confidential ethics complaint discussion was inapt. The respondent should have described the ethics complaint investigation as being convened pursuant to the provisions of §§7-148h and 1-82a, G.S., and not pursuant to the “executive session” provisions of the FOI Act.

 

15.   It is concluded, therefore, that because §§7-148h and 1-82a, G.S., govern the ethics complaint discussion held on September 17, 2009, the respondent did not violate the open meetings provisions of the FOI Act.

 

16.   With respect to the e-mail discussed in the executive session, as described in paragraph 6, above, it is found that the respondent discussed the performance of both the assistant to the town manager, who was the subject of the e-mail, and the respondent’s chairman, who sent the e-mail.  It is found that the respondent discussed the performance of a public officer or employee, within the meaning of §1-200(6)(A), G.S.

 

17.   It is concluded, therefore, that the respondent did not violate the open meetings provision of the FOI Act by discussing the e-mail in executive session.

 

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 provisions of §1-225(d), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 9, 2010.

 

 

 

____________________________

Cynthia A. Cannata

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:

 

Elizabeth T. Wassmundt

54 Old Turnpike Road

Storrs, CT  06268

 

Board of Ethics, Town of Mansfield

c/o Dennis O’Brien, Esq.

120 Bolivia Street

Willimantic, CT  06226

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

FIC/2009-627/FD/cac/6/16/2010