FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was scheduled to be heard as a contested case on March 10, 2011, at 2:00 p.m., at which time the respondent appeared but the complainants failed to appear.  Thereafter, the hearing officer issued a proposed final decision dismissing the complaint for failure to prosecute.  At its regular meeting of June 22, 2011, the Commission unanimously voted to reopen this matter.

 

Accordingly, the above-captioned matter was heard as a contested case on July 20, 2011, at which time the complainants and the 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)(A), G. S.

 

2.      It is found that, during an August 25, 2010, meeting between the complainant Poindexter and the New Haven Superintendent of Schools, the complainant orally requested that she be informed of any regular meetings of the respondent board.  It is further found that, at such time, Ms. Poindexter was informed that the meetings of the respondent board are posted on the respondent’s board’s website. 

 

3.      By letter dated September 21, 2010, and filed on September 23, 2010, the complainants appealed to this Commission.  The complaint letter states:

 

As President of AFSCME Local 3144 I am requesting that your office file a formal complaint against the City of New Haven Board of Education regarding violations of Section 1-200 and Section 1-231. I am enclosing a communication from me to them for your review.  I appreciate your cooperation in advance of this notice.  Please feel free to contact me…with any questions.  Thank you.

 

            Included with the complaint letter was a two-page memorandum dated September 20, 2010 from the complainants to the respondent (hereinafter “the memorandum”) which has been marked as an exhibit in this matter.  

 

4.       It is found that the memorandum references a September 1, 2010 special meeting of the board, which the complainants claimed included an executive session, and at which five members of the complainants’ union were laid off from their jobs.  It is also found that, in the memorandum, the complainants informed the respondent that prior to the September 1, 2010, meeting, they had asked to be informed of the regular monthly meetings of the respondents so that the complainant Poindexter could discuss any potential layoffs with the respondent board.  It is found that the complainants also informed the respondent that they did not receive notice of the meeting and that the five individual employees who were laid off were not informed that they would be on the agenda.    

 

5.      Section 1-231, G. S., which is referenced in the letter of complaint, provides:

 

(a)  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.

 

(b)  An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200. 

 

6.      At the hearing in this matter, the complainants argued that the complaint in this matter encompasses the following allegations:

 

a)      that the respondent violated the FOI Act by failing to notify the complainants of the September 1, 2010 meeting in advance;

b)      that the respondent violated the FOI Act by failing to notify the five individuals that their employment would be discussed at the September 1, 2010 meeting; and

c)      that the respondent violated the FOI Act by conducting an unnoticed or secret meeting.

 

7.      Reading together the complaint letter and the memorandum filed with it, it is found that the complainants alleged the violations described in paragraph 6.a and 6.b, above.  It is further found that the complainants did not allege the allegation described in paragraph 6.c, above, in the complaint.  Accordingly, such claim shall not be further addressed herein.

 

8.       With respect to the allegation described in paragraph 6.a, above, §1-227, G. S., provides, in relevant part:

 

The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting…. 

 

9.       It is found that the respondent did not notify the complainants of its September 1, 2010 meeting in advance of such meeting.  It is also found, however, that the complainants did not make a written request for advance notice of the respondent’s meetings, within the meaning of §1-227, G. S.  Accordingly, it is concluded that the respondent did not violate the FOI Act, as alleged in paragraph 6.a, above. 

 

10.  With respect to the allegation described in paragraph 6.b, above, §1-200(6), G. S., defines “executive session” to 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….”

 

11.   The Commission has often concluded that §1-200(6)(A), G. S., requires that individuals who are to be discussed in executive session must be given meaningful notice of the executive session. 

 

12.   It is found that the respondent did not conduct an executive session during its September 1, 2010 meeting, and that all actions taken regarding the five individuals who were laid off took place in the open.  It is concluded that the respondent did not violate the FOI Act, as alleged in paragraph 6.b, above.

 

            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 August 24, 2011.

 

__________________________

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:

 

Cherlyn Poindexter and the New Haven Management

and Professional Union Local 3144

P.O. Box 1748

New Haven, CT  06507

 

Board of Education, New Haven Public Schools

c/o Kathleen M. Foster, Esq.

Office of the Corporation Counsel

165 Church Street

New Haven, CT  06510

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-594/FD/cac/8/25/2011