FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Michael F. Rizzuti,
Complainant
against Docket #FIC 93-298
Mayor of Naugatuck and Naugatuck Board of Police Commissioners,
Respondents May 25, 1994
The above-captioned matter was heard as a contested case on March 4, 1994, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with Docket #FIC 93-307, Michael Rizzuti v. Mayor of Naugatuck and Naugatuck Board of Police Commissioners.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondents are public agencies within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed November 4, 1993, the complainant appealed to the Commission, alleging that the respondent board, and the mayor as a member of the board (a) failed to make minutes of the board's October 7, 1993 meeting available within seven days of the meeting, (b) permitted an individual at that meeting to attend an executive session as an observer, and not to present testimony or opinion; and (c) conducted a hearing on the dismissal of a municipal police chief in executive session, in violation of 7-278, G.S.
3. In his complaint, the complainant also requested that the Commission declare null and void any improper events that took place.
4. At the hearing, the hearing officer granted the complainant's request to amend his complaint to include allegations of the improper attendance of two other individuals at the October 7, 1993 executive session.
5. It is found that the respondents met on October 7, 1993, and convened in executive session for a substantial portion of the meeting.
6. It is found that the October 7, 1993 meeting was one in a series of meetings held concerning charges against the chief of police.
Docket #FIC 93-298 Page 2
7. It is found that the board had previously terminated the employement of the chief of police, but had been ordered by the state Supreme Court to rehear the case due to bias in the first termination proceedings. Clisham v. Board of Police Commissioners, 223 Conn. 354 (1992).
8. It is found that the October 7, 1993 meeting was the last of the meetings to rehear the case against the chief, and that the respondents, after concluding the executive session, voted in public session to dismiss all charges, resulting in the chief's reinstatement.
9. The respondent concedes that it did not file either minutes or a record of vote of the October 7, 1993 meeting.
10. It is found, however, that the respondent did make and keep a stenographic record of the October 7, 1993 meeting.
11. It is also found that the respondent offered no evidence to prove that the stenographic record was filed and made available to the public as minutes of the October 7, 1993 meeting.
12. Section 1-21(a), G.S. provides in pertinent part:
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 and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer. .
13. It is concluded that the respondent violated 1-21(a), G.S., by failing to make available to the public the minutes and record of vote of its October 7, 1993 meeting.
14. With respect to the complainant's allegations concerning attendance at the October 7, 1993 executive session, it is found that an individual acting as a liaison between the board of burgesses and the respondent attended that executive session.
15. It is also found that the wife and son of the chief of police also attended the October 7, 1993 executive session.
16. Section 1-21g(a), G.S., provides in relevant part:
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 ....
Docket #FIC 93-298 Page 3
17. It is found that the respondent failed to prove that any of the individuals described in paragraphs 14 and 15, above, were invited to present testimony or opinion pertinent to matters before the respondent.
18. It is concluded that the respondent violated 1-21g(a), G.S., by permitting the attendance of the individuals described in paragraphs 14 and 15, above, at its October 7, 1993 executive session.
19. The complainant also maintains that the October 7, 1993 meeting was required to be held in open session pursuant to 7-278, G.S., which provides in relevant part:
No active head of any police department of any town, city or borough shall be dismissed unless there is a showing of just cause by the authority having the power of dismissal and such person has been given notice in writing of the specific grounds for such dismissal and an opportunity to be heard in his own defense, personally or by counsel, at a public hearing before such authority. [Emphasis added.]
20. The respondent in turn maintains that the hearings concerning the chief of the police department were instead governed by 26 Spec. Acts 934, No. 321, 4, 321, which provides in relevant part:
Upon reasonable notice and after due hearing, the board of police commissioners may remove from office, for malfeasance or for any neglect or refusal to properly perform his duties, any member or officer of said department, including the chief of police. [Emphasis added.]
21. It is concluded, however, that the Commission lacks jurisdiction to enforce the provisions of either 7-278, G.S., or 26 Spec. Acts 934, No. 321, 4, 321.
22. Under the facts of this case, considering the nature of the particular violations, the harm demonstrated, the circumstances surrounding the termination proceedings, and the effect of a null and void order, the Commission in its discretion declines to declare any actions of the respondent to be null and void.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith make available minutes of its October 7, 1993 meeting, as provided in 1-21(a), G.S.
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2. Henceforth the respondent shall strictly comply with the requirements of 1-21(a), G.S., concerning minutes and records of votes, and of 1-21g(a), G.S., concerning attendance at executive sessions.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 25, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 93-298 Page 5
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:
Michael F. Rizzuti
c/o Louis M. Federici, Esq.
Parrett, Porto, Parese, Colwell & Giulietti, P.C.
357 Whitney Avenue
New Haven, CT 06511
Mayor of Naugatuck and Naugatuck Board of Police Commissioners
c/o Kevin H. McSherry, Esq.
38 Fairview Avenue
Naugatuck, CT 06770
Elizabeth A. Leifert
Acting Clerk of the Commission