FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL
DECISION
Nicholas J.
DeNoia,
Complainant
against Docket #FIC 86-68
Mayor of the
City of Groton and the City Council of the City of Groton,
Respondents April 23, 1986
The above-captioned matter was heard
as a contested case on April 1, 1986, at which time the complainant and
respondents appeared and presented testimony, exhibits and argument on the
complaint. The matter was continued to
April 8, 1986, at which time the complainant and the respondents again appeared
and presented testimony, exhibits and argument on the complaint.
After consideration of the entire
record, the following facts are found:
1. The
respondents are public agencies within the meaning of §§1-18a(a), G.S.
2. By
letter of complaint filed with the Commission on March 13, 1986 the
complainant, who is the deputy chief of the Groton police department, alleged
that the respondents held executive sessions on January 6, 1986, February 3,
1986 and February 18, 1986 during which his employment, performance,
evaluation, health and/or dismissal was discussed and that he was denied the
right to have such meetings held in public.-The complainant also alleged that
he was denied the right to attend a January 2, 1986 meeting concerning the same
issue.
3. Included
with the complainant's letter of complaint was a letter requesting "all
minutes of the Mayor and Council meetings that were held concerning the
employment, performance, evaluation, health of [sic] dismissal of [the
complainant]" and a response from counsel to the respondents indicating
that the requested minutes did not exist and would not be created.
4.
It is found
that the January 2, 1986, January 6, 1986 and February 3, 1986 meetings of the
respondent council were held more than 30 days prior to the filing of the
complainant's complaint and that pursuant to 1-21i(b), G.S., the
Commission has no jurisdiction over allegations concerning such meetings.
Docket #FIC
86-68 -------- Page Two
5. It
is found that on or about February 15, 1986 the respondent mayor was contacted
by a member of the respondent council regarding an allegation that the
complainant had failed to dispatch a police officer in response to a report
that an individual was threatening to shoot himself.-The council member
requested an emergency meeting of the respondent council to discuss the
complainant's actions.-The mayor declined to call an emergency meeting on the
ground that a regular meeting of the respondent council was scheduled for
February 18, 1986 and the matter could be discussed at that time.-Also of
concern to the respondents was the physical fitness of the complainant for his
employment, which concern was the subject of a memorandum prepared by the
office of the respondents' counsel on or about February 14, 1986.
6. Following
her conversation with the council member the respondent mayor relayed the
councilor's concerns to the chief of police, who, on or about February 17,
1986, contacted the complainant to discuss the matter.-On February 17, 1986 the
complainant contacted the respondent mayor and discussed the allegations.
7. It
is found that at its February 18, 1986 regular meeting the respondent council
convened in executive session to discuss the appointment, employment,
performance, evaluation, health or dismissal of the complainant, a public
officer or employee, within the meaning of 1-18a(e)(1), G.S.
8. The
complainant claims that he had neither notice nor actual knowledge that he
would be discussed on February 18, 1986.
9. The
respondents claim that during the complainant's February 17, 1986 conversation
with the respondent mayor he was informed that the allegations concerning him
would be discussed at the regular meeting of the respondent council scheduled
for February 18, 1986.-The respondents did not claim that the complainant was
informed that discussions concerning him would be conducted in executive
session.
10. It
is found that the complainant was not given notice that his appointment,
employment, performance, evaluation, health or dismissal would be discussed in
executive session on February 18, 1986.-The complainant was therefore denied
the opportunity to require that the discussion concerning him be held at an
open meeting.
11. The respondents claim that the February
18, 1986 executive session was convened to allow the respondent council to
engage in privileged attorney-client communications with their counsel.
Docket #FIC
86-68 -------- Page Three
12. Nothing
in the Freedom of Information Act permits an agency to meet in executive
session solely on the ground that it intends to include its counsel in the
discussion of a matter, nor could such a privilege, if it existed, override the
rights specifically granted to public officers and employees by the language of
1-18a(e)(1), G.S.
13. It
is concluded that the denial of the complainant's right to require that
discussions concerning him be held at an open meeting violated
1-18a(e)(1), G.S.
14. The
complainant has requested that the Commission order the respondents to produce
minutes of the February 18, 1986 executive session which would record as fully
as possible the February 18, 1986 discussion in executive session, including
statements made and any actions taken by the respondent council.
15. No
minutes or notes of the February 18, 1986 executive session were taken, nor was
a tape of the proceedings made.-Testimony by the respondent mayor and by a
member of the respondent council, both of whom attended the February 18, 1986
executive session, indicated only a vague recollection of what was said on
February 18, 1986.
16. The
Commission declines to order the respondents to produce the document requested
by the complainant, the evidence at hearing indicating that the respondents are
not capable of producing such a document.
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
comply strictly with the requirements of 1-18a(e)(a), G.S., upon convening
in executive session to discuss personnel related matters.
Approved by order of the Freedom of
Information Commission at its special meeting of April 23, 1986.
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Karen J.
Haggett
Clerk of the Commission