Freedom
of Information Commission
of
the State of Connecticut
In the Matter of a Complaint by Final
Decision
Joan Coe,
Complainant
against Docket
#FIC 1995-371
Carl D. Eisenman, Chairman,
Simsbury Police Commission,
Respondent September
11, 1996
The
above-captioned matter was heard as a contested case on May 29, 1996, 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 dated October 19, 1995, and filed with the
Commission on October 23, 1995, the complainant alleged that the respondent
violated the Freedom of Information (hereinafter “FOI”) Act by permitting
non-agency members to attend an executive session of the Simsbury Police
Commission (hereinafter “SPC”). In
addition, the complainant requested the imposition of civil penalties against
the respondent.
3.
It is found that on October 18, 1995, the SPC held a special meeting and
voted to convene in executive session to discuss its defense strategy with
respect to a lawsuit pending in federal court against the SPC, its individual
members, several law enforcement officers and other officials of the town of
Simsbury, Gary Mihalick v. Town of Simsbury, et al, case number
395CV01822 (hereinafter “lawsuit”).
4.
It is found that the SPC invited all defendants named in the lawsuit to
attend the subject executive session to offer their testimony and opinion
concerning a collective defense strategy.
5.
It is further found that at the request of Carolyn Clement, former SPC
member and a named defendant in the lawsuit, the SPC invited her husband and
personal lawyer, Paul Gilmore, to attend the executive session.
6. The
complainant does not contest the validity of the executive session in question,
but specifically alleges that the respondent violated §1-21g(a), G.S., by
permitting Mr. Gilmore to attend the session.
7. Section
1-18a(e)(2), G.S., permits an agency to convene in executive session to discuss
strategy with respect to pending litigation.
8. Section
1-21g(a), G.S., provides, in pertinent 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 …”
9. It is
found that the SPC invited Mr. Gilmore to attend the executive session in his
capacity as counsel to Ms. Clement, so that he might present testimony or
opinion with respect to the defendants’ collective strategy in the lawsuit.
10. Under
the facts and circumstances of this case, it is concluded that the respondent
did not violate §1-21g(a), G.S., by allowing
Mr. Gilmore to attend the subject executive session.
11. At the
hearing on this matter, the respondent requested the imposition of civil
penalties against the complainant for the filing of a frivolous appeal pursuant
to §1-21i(b)(2), G.S.
12. It is
found that the complainant’s appeal was not filed frivolously, without
reasonable grounds and solely for the purpose of harassing the respondent. Accordingly, the respondent’s request
described in paragraph 11, above, is denied.
13. In her
post-hearing brief, the complainant requested the imposition of civil penalties
against Mr. Gilmore and the respondent’s attorney.
14. It is
found, however, that the Commission lacks jurisdiction to consider the
imposition of civil penalties against Mr. Gilmore and the respondent’s
attorney, who are neither parties to this appeal, nor public agencies. Accordingly, the complainant’s request is
denied.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1. The
complaint is hereby dismissed.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
September 11, 1996.
__________________________
Elizabeth
A. Leifert
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:
Joan
Coe
26
Whitcomb Drive
Simsbury,
CT 06070
Carl D. Eisenman, Chairman, Simsbury Police
Commission
c/o
William K. Eisenman, Esq.
Witherspoon Law Office
Farmington Commons
790 Farmington Avenue
Farmington, CT 06032
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission