FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL
DECISION
John O. Bailey,
Richard Conrad, Adrienne Hedgspeth, and the Jackson Newspapers,
Complainants Docket #FIC 86-300
against
New Haven Board
of Education and New Haven Superintendent of Schools,
Respondents January 14, 1987
The above-captioned matter was heard
as a contested case on November 24, 1986 at which time the complainants 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:
1.
The respondents are public agencies within the meaning of 1-18a(a),
G.S.
2.
By letter dated July 10, 1986, the complainants requested access to
inspect or copy the 1986 performance evaluation of the respondent
superintendent (hereinafter "performance evaluation").
3.
By letter dated July 29, 1986, the respondent board stated that there
was no written performance evaluation.
4.
By letter dated September 30, 1986, the complainants renewed their
request for the performance evaluation.
5.
By letter dated October 1, 1986, the respondent superintendent enclosed
a copy of the respondent board's letter of July 29, 1986 stating that there was
no written performance evaluation.
6.
By letter of complaint dated October 29, 1986 and filed with the
Commission on October 30, 1986, the complainants alleged that the respondents
violated the Freedom of Information Act in their refusal to release the
performance evaluation.
Docket #FIC
86-300
Page 2
7.
At the hearing, the respondents moved to dismiss the complaint on the
ground that the complainants had not filed their notice of appeal within the
time limits of 1-21i(b), G.S.
8.
Specifically, the respondents claim that the 1-21i(b), G.S., time
limits for an appeal to the Commission should commence as of July 29, 1986, the
date of their denial of the complainants' first request, and not on October 1,
1986, the date of their denial of the complainants' second request.
9.
It is found that there is no provision in the Freedom of Information Act
which precludes the complainants from renewing their request to inspect or copy
public records.
10.
It is concluded, therefore, that the complainants have complied with
1-21i(b), G.S., by filing a timely notice of appeal. As a result, the respondents' motion to dismiss
is hereby denied.
11.
The respondents further claim that there are no written records of the
performance evaluation because the evaluation was conducted orally in a series
of executive sessions held pursuant to 1-18a(e)(1), G.S.
12.
It is found that on several occasions the respondents convened in
executive session to discuss the performance evaluation in order to avoid the
disclosure of documents that might be misinterpreted by the public.
13.
Pursuant to 10-157, G.S., the respondent board is obliged to
evaluate the performance of the respondent superintendent according to
guidelines and criteria agreed upon by the board and the superintendent.
14.
The respondent superintendent's contract for 1985-1988 provides with
respect to the evaluation process that "within 30 days after the delivery
of the written evaluation to the superintendent, the board in executive session
shall meet with the superintendent to discuss the evaluation."
15.
The respondent superintendent's contract also provides that it may be
amended only by a written agreement signed by both parties.
16.
The respondents claim that the 1986 evaluation process for the
respondent superintendent was modified by an oral agreement that eliminated a
written evaluation.
Docket #FIC
86-300
Page 3
17.
On November 10, 1986, the respondent board issued a statement concluding
that the respondent superintendent's performance for the 1985-1986 year was
excellent and explaining the changes in the 1986 evaluation process.
18.
Although the evaluation process was an oral one, the November 10, 1986
statement of the respondent board states that the board selected a performance
evaluation form and board members used this form to evaluate the
superintendent's performance.
19.
Based upon the evidence presented, the Commission cannot determine
whether individual members of the respondent board used written forms during
the 1986 evaluation process.
20.
If written performance evaluation forms were used by members of the
respondent board, it is concluded that these documents are public records
within the meaning of 1-18a(d), G.S. and disclosable under 1-15
and 1-19(a), G.S.
21.
It further is noted that the respondent board's minutes of its November
10, 1986 meeting indicate that a non-agency member recorder was present during
an executive session held on that date.
22.
Based upon the evidence presented, the Commission cannot determine
whether the recorder has any records concerning the performance evaluation.
23.
It is found, however, that if the recorder has any performance
evaluation records, it is concluded that the records are public records within
the meaning of 1-18a(d),G.S., and disclosable under 1-15 and
1-19(a), G.S.
The following order by the Commission is hereby recommended on the
basis of the record concerning the above-captioned complaint:
1.
The respondent board shall forthwith provide the complainants with an
affidavit from each of its members not testifying at the hearing in this
matter, stating whether he or she has any records relating to the performance
evaluation.
Docket #FIC
86-300
Page 4
2.
The respondent board shall forthwith provide the complainants with an
affidavit from each non-agency member present at the executive sessions at
which the performance evaluation was discussed, stating whether he or she has
any records relating to the performance evaluation.
3.
If any of the affidavits provided for in paragraphs 1 and 2 of the
order, above, states that records relating to the performance evaluation exist,
the respondent board shall forthwith provide the complainants with a copy of
such records.
4.
This case compels the Commission to comment on the respondents'
ill-conceived efforts to evade their responsibilities under the Freedom of Information
Act and to abrogate their duties as public officials. The respondent board is a public agency accountable not to
itself, but to the people of New Haven.
One of its most important functions is to evaluate the superintendent of
schools, the school system's chief executive officer. By abolishing the written evaluation process, the board leaves
the citizens of New Haven without a meaningful assessment of the
superintendent's performance for the 1985-1986 year and conceals from public
scrutiny its decision-making process.
The board has acted irresponsibly by eliminating a written performance
evaluation record of such a high level public official merely to avoid public
oversight. In this case, the board, in
effect, has left itself powerless to take any disciplinary action concerning
the superintendent's performance as provided by contract. Moreover, the Commission believes that the
respondents' fear of the public's reaction to the evaluation process insults
the intelligence of the citizens of New Haven and has no place in a
representative democracy.
Approved by order of the Freedom of
Information Commission at its regular meeting of January 14, 1987
ÿ
Catherine I.
Hostetter
Acting Clerk
of the Commission