FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Samuel Kasparian,
Complainant
against Docket #FIC 93-311
Bristol Housing Authority,
Respondent January 26, 1994
The above-captioned matter was heard as a contested case on December 14, 1993, at which time the complainant 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 1-18a(a), G.S.
2. By letter of complaint filed November 12, 1993, the complainant appealed to the Commission, alleging that the respondent met on September 28, 1993 in violation of the Freedom of Information ("FOI") Act, and that the respondent failed to keep minutes of the September 28, 1993 meeting.
3. The complainant in his complaint also alleged that the respondent convened an illegal meeting on October 6, 1993; and illegally adjourned a meeting on October 13, 1993 to October 19.
4. The complainant at the hearing also made certain allegations with respect to the respondent's November 10, 1993 meeting, which allegations the Commission declines to address, as not within the scope of the complaint filed November 12, 1993 and not amended before the hearing on this matter.
5. It is found that the full membership of the respondent convened on September 28, 1993 at the offices of its counsel.
6. It is found that one topic discussed at the September 28, 1993 assembly of the respondent was strategy and negotiations with respect to the collective bargaining agreement then being negotiated by the parties, and which was nearing execution by the parties.
7. Section 1-18a(b), G.S., provides in relevant part that the term "meeting" shall not include "strategy or negotiations with respect to collective bargaining."
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8. It is concluded that the portion of the September 28, 1993 assembly to discuss strategy and negotiations with respect to collective bargaining was not a meeting within the meaning of 1-18a(b), G.S.
9. It is also found that a significant portion of the September 28, 1993 assembly was to discuss the contracts of the respondent's three management-level employees.
10. In particular, it is found that the respondent at its September 28, 1993 assembly discussed whether to renew the contract of the complainant, and what legal ramifications might ensue from the respondent's failure to renew his contract.
11. The respondent maintains that the portion of the meeting to discuss the complainant's contract was not a meeting within the meaning of 1-18a(b), G.S., because the respondent convened as a personnel search committee to discuss strategy with respect to executive level employment candidates.
12. Section 1-18a(b), G.S., provides in relevant part that a "meeting" subject to the FOI Act does not include "[a]ny meeting of a personnel search committee for executive level employment candidates."
13. Section 1-18a(f), G.S., provides in relevant part:
"Personnel search committee" means a body appointed by a public agency, whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position....
14. It is found that the respondent created a committee of the whole to review the contracts of its management level employees, and to consider whether to renew or terminate those contracts, and that it was that committee that assembled on September 28, 1993.
15. It is also found that no personnel search committee of the respondent had been created on September 28, 1993.
16. It is also found that the committee that assembled on September 28, 1993 had not advertised any positions or sought any employment candidates, and did not convene for the purpose of reviewing, discussing or selecting any employment candidates.
17. It is therefore concluded that the September 28, 1993 assembly was not a meeting of a personnel search committee within the meaning of 1-18a(f), G.S.
18. The respondent also maintains that the September 28, 1993 assembly was not a meeting within the meaning of 1-18a(b),
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G.S., because the respondent discussed strategy with respect to the contract of an executive-level employment candidate.
19. It is concluded, however, that the respondent's claim in paragraph 18, above, does not state an exclusion from the definition of meetings under the FOI Act.
20. It is therefore concluded that the assembly of the respondent on September 28, 1993 to discuss the complainant's contract was a meeting within the meaning of 1-18a(b), G.S.
21. It is found that the September 28, 1993 meeting to discuss the complainant's contract was closed to the public.
22. It is also found that neither the public nor the complainant received notice of the September 28, 1993 meeting.
23. The complainant maintains that notice to him of the September 28, 1993 meeting was required pursuant to 1-18a(e)(1), G.S.
24. Section 1-18a(e)(1), G.S., provides in pertinent part that an agency may convene in executive session for:
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 ....
25. The respondent maintains that no notice to the complainant was required because the complainant's job performance was not discussed.
26. It is found, however, that the respondent discussed the complainant's appointment, employment, or dismissal.
27. It is also found that the respondent did not move to convene in executive session pursuant to 1-18a(e)(1) and 1-21, G.S.
28. It is concluded that the respondent violated 1-18a(e)(1) and 1-21(a), G.S., by failing to file a notice of the September 28, 1993 special meeting; by excluding the public from its discussion of the complainant's contract without properly convening in executive session; and by failing to give the complainant an opportunity to require that discussion to be held publicly.
29. The complainant also maintains that the respondent violated the FOI Act by acting in closed session at the September 28, 1993 meeting to authorize its counsel to retain a legal consultant to obtain a second opinion on a contract matter concering the complainant.
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30. It is found that the respondent at its September 28, 1993 meeting reached a consensus to permit its counsel to obtain a second legal opinion, which its counsel offered to pay for if the respondent did not wish to do so. Although it did not at that time authorize payment for that opinion, the respondent at its October 15, 1993 meeting subsequently authorized payment of the bill that had been submitted to the respondent's counsel for the opinion.
31. It is concluded that the consensus described in paragraph 30, above, was not merely discussion, but was a vote within the meaning of the FOI Act.
32. Section 1-21(a), G.S., provides in relevant part:
The meetings of all public agencies, except executive sessions as defined in subsection (e) of section 1-18a, shall be open to the public. The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours ....
33. Section 1-18a(e)(1), G.S., provides that discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee may be held in executive session, but contains no provision permitting voting concerning any such matters.
34. It is concluded that the respondent violated 1-21(a) and 1-18a(e)(1), G.S., by voting to authorize its counsel to obtain a legal opinion on a personnel matter in executive session.
35. It is found that the complainant on October 1, 1993 requested a copy of the minutes of the September 28, 1993 meeting of the respondent.
36. It is found that the respondent failed to make or maintain minutes of that meeting.
37. Section 1-19(a), G.S., provides in relevant part that each public agency "shall make, keep and maintain a record of the proceedings of its meetings."
38. It is concluded that the respondent violated 1-19(a), G.S., by failing to maintain minutes of its September 28, 1993 meeting.
39. It is found that the respondent held a special meeting on October 6, 1993, which the complainant in his complaint claims was improper because the meeting was called to order without proceeding through the chair.
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40. It is concluded that the complainant has not alleged a violation of the FOI Act with respect to the respondent's October 6, 1993 meeting.
41. It is found that the respondent on October 8, 1993 called a special meeting for October 13, 1993, to be held in the respondent's administrative office.
42. It is found that all members of the respondent were present for the scheduled October 13, 1993 meeting.
43. It is also found that the chairman of the respondent refused to call the October 13, 1993 meeting to order because the meeting had been called by other members without the chairman's input.
44. It is also found that the chairman directed the members of the respondent to meet with the respondent's counsel, two at a time, to discuss the propriety of the call of the meeting.
45. The respondent maintains that there was no meeting on October 13, 1993, because no meeting was called to order, because all of the business on the agenda for the October 13, 1993 meeting was subsequently scheduled to be taken up at the respondent's October 19, 1993 meeting, and because no more than two members of the respondent at a time discussed the issue of the propriety of the call of the meeting with the respondent's counsel.
46. Section 1-18a(b), G.S., provides in pertinent part:
"Meeting" means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ... "Meeting" shall not include: ... communication limited to notice of meetings of any public agency or the agendas thereof.
47. It is found that the methods by which the respondent calls its own meetings is a matter over which the respondent has, at a minimum, jurisdiction and control.
48. It is also found that a quorum of the respondent, in series, communicated among themselves and with their counsel concerning the method by which the respondent was calling its meetings.
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49. It is concluded that discussion concerning the methods by which the respondent calls its own meetings is not communication limited to notice of meetings or a agendas.
50. It is concluded that the October 13, 1993 communications described in paragraph 48, above, constituted a meeting within the meaning of 1-18a(b), G.S.
51. It is found that the respondent's October 13, 1993 meeting was not open to the public, and that the subject matter of that meeting had not been filed in any notice to the public.
52. It is therefore concluded that the respondent violated 1-21(a), G.S., by meeting on October 13, 1993 privately and without notice to discuss the matters referenced in paragraph 48, above.
53. It is also found that the respondent adjourned its October 13, 1993 meeting to October 19, 1993.
54. Section 1-21d, G.S., provides in relevant part:
The public agency may adjourn any regular or special meeting to a time and place specified in the order of adjournment. ... A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular or special meeting was held, within twenty-four hours after the time of the adjournment....
55. It is found that the respondent did not post a copy of an order or notice of adjounrment on or near the place where the October 13, 1993 meeting was held.
56. It is concluded that the respondent violated 1-21d, G.S., with respect to its adjourned October 13, 1993 meeting.
57. At the hearing, the complainant requested that the Commission declare null and void any actions taken at meetings found to be in violation of the FOI Act.
58. The Commission in its discretion declines to declare null and void any actions taken by the respondent.
59. It is found that the respondent has, as of the date of the hearing on this matter, failed to approve any minutes of its meetings since September 21, 1993. Although the respondent claimed that such failure was due to concerns about the accuracy of those meetings, it is also found that the respondent has taken virtually no action to correct any claimed inaccuracies. While unapproved minutes may satisfy the requirements of 1-19(a), G.S., the respondent does not well serve the public by failing to review and approve the official records of its
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doings. The Commission also finds that the respondent's sloppiness in reviewing and approving its minutes is paralleled by its approach to the requirements of the FOI Act, and that education concerning the Act's requirements is warranted.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall, within two weeks of the date of mailing of the notice of the final decision in this matter, file minutes of its September 28, 1993 meeting, except for those portions that concerned strategy and negotiations with respect to collective bargaining.
2. The respondent shall, within two weeks of the date of mailing of the notice of the final decision in this matter, also file minutes of its October 13, 1993 meeting.
3. Within thirty days of the date of the mailing of the final decision in this matter, the respondent shall contact the offices of the Commission an arrange for the attendance of all its members at an educational workshop to be conducted by a member of the Commission's staff.
4. Henceforth, the respondent shall strictly comply with the requirements of 1-18a(b), 1-18a(e)(1), 1-19(a), 1-21(a), and 1-21d, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 26, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Samuel Kasparian
c/o Konstantinos M. Diamantis, Esq.
Diamantis and Associates
201 West Street
P.O. Box 197
Bristol, CT 06011-0197
Bristol Housing Authority
c/o Alfred F. Morrocco, Jr., Esq.
200 Summer Street
P.O. Box 1660
Bristol, CT 06011-0197
Elizabeth A. Leifert
Acting Clerk of the Commission