FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                                                Final Decision

 

Anthony Connor and West Haven Professional

Fire Fighters Local 1198,

 

                        Complainants

 

            against                                                                          Docket #FIC1995-399

 

Mark Vere, David Forsyth and Vincent Giannotti,

as Members of the Allingtown Board of Fire Commissioners,

and Allingtown Board of Fire Commissioners,

 

                        Respondents                                                     August  28, 1996

 

            The above-captioned matter was heard as a contested case on April 23, 1996, at which time the complainants appeared and presented testimony, exhibits and argument on the complaint, but the respondents failed to appear.  A second hearing for the sole purpose of determining the appropriateness of imposing a civil penalty against the named respondents was held before on May 23, 1996, at which time the complainants and respondents appeared and presented testimony and argument on the question of whether a civil  penalty should be imposed.

 

            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 dated November 9, 1995 and filed November 17, 1995, the complainants alleged that on October 19, 1995 and October 21, 1995 (“October meetings”), the respondents met, discussed fire department business, and voted to take disciplinary action against the Allingtown Fire District’s (“district”) Superintendent of Apparatus (“superintendent”), a member of complainant Local 1198 (“union”), without ever informing him that he would be discussed so that he could attend the meetings.  The complainants requested the imposition of a civil penalty, and an order declaring all action taken at the October meetings null and void.

 

            3.         The Commission takes administrative notice of the pleadings, records and its prior decisions in docket #s FIC 1995-344, Andreoli v. Allingtown Board of Fire Commissioners, and FIC 1995-406, Krzeminski v. Allingtown Board of Fire Commissioners.

 

 

            4.         In the cases cited above, the complainants did not contest the legality of the respondents’ October meetings.  However, in this case the legality of the October meetings must be examined in order to address the validity of the complainants’ allegation that one of their members was entitled to notice of the October meetings.

 

5.         It is found that on October 19, 1995 and October 21, 1995 the respondents held unnoticed meetings at which board business was discussed and transacted.

 

            6.         It is found that the October 19th meeting was held at the home of respondent Vere at approximately 10:30 p.m., and the October 21st meeting was held at the Minor Park Fire Station at approximately 11:30 a.m.

 

            7.         The respondents claim that each meeting was an “emergency” meeting.

 

            8.         The Second College Edition of The American Heritage Dictionary defines emergency as an “unexpected situation or sudden occurrence of a serious and urgent nature that demands immediate action.”

 

            9.         It is found that at the October 19th meeting the respondents discussed a letter from the superintendent to the respondent board alleging that the condition of the district’s rescue unit was unsafe.

 

            10.       The respondents claim that the superintendent’s allegations about the district’s rescue unit created a serious and urgent situation that required the board’s immediate attention and action because in part the allegation was that the rescue unit had a brake problem.

 

11.       The respondents also claim that they received the superintendent’s letter late in the afternoon of October 19, 1995.

 

            12.       The respondents did not request that the superintendent’s letter be made part of the administrative record in this case.

 

13.       It is found that at the October 19th meeting the respondents agreed to take immediate action against the superintendent for what they believed to be his “refusal to accept his dutiful responsibility” for the “safe operation of the district’s vehicles.”  Specifically, the respondents voted to draft a letter to the district’s fire chief (“chief”) directing him to remove the

incumbent superintendent from that position and “take steps to correct the alleged safety hazard, provided in [his] opinion [a safety hazard] does exist.”

 

            14.       It is found that disciplinary action was taken against the superintendent as a result of the respondents discussion and vote at its October 19th meeting.

 

15.       It is found that the discussion of the superintendent’s performance of his duties did not constitute an emergency within the meaning of §1-21(a), G.S.

 

16.       Upon these facts it is found that the respondents failed to prove that it was necessary for the respondent board to meet to discuss the superintendent and/or the rescue unit without providing the public with at least twenty-four (24) hours notice of the meeting, since the respondents simply voted to direct the chief to handle any safety hazard that the rescue unit might have.

 

            17.       It is concluded that the respondents’ violated §1-21(a), G.S., when they held a meeting on October 19, 1995, without providing notice thereof at least twenty-four (24) hours in advance of such meeting.

 

            18.       It is found that discussion of the superintendent constituted a discussion of his performance under §1-18a(e)(1), G.S.

 

            19.       Section 1-18a(e)(1), G.S., in relevant part states that an executive session which excludes the public may be convened to discuss the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that such discussion be held at an open meeting” (emphasis added).

 

            20.       It is found that because the respondents convened the October 19th meeting as an “emergency” meeting, the superintendent was deprived of his right to require that discussion concerning his performance be held at an open meeting.

 

            21.       It is concluded that the respondents violated §§1-18a(e) and 1-21, G.S., by discussing the superintendent’s performance at the October 19th meeting.

 

            22.       It is found that at the October 21st meeting the respondents primarily discussed the resignation letter tendered at that meeting by respondent Giannotti, and that there was some additional discussion of the superintendent’s allegations and the action taken by the respondent board against the superintendent as stated in paragraph 13 of the findings, above.

 

            23.       It is found that the “minutes” of the respondents’ October 21st meeting, however, refer to that meeting as an informal sharing session.

 

            24.       It is found that the respondents failed to prove that Giannotti’s resignation created a serious and urgent situation, or that once there was a decision on October 19th to take action against the superintendent and direct the chief to fix any existing problem with the rescue unit, there existed a serious and urgent situation involving either the superintendent or the district’s rescue unit on October 21st.

 

 

 

            25.       It is therefore concluded that the respondents violated §1-21(a), G.S., when they met on October 21st without providing notice thereof at least twenty-four (24) hours in advance of such meeting.

 

            26.       It is found that the respondents’ violation of the superintendent’s and complainants’ rights conferred under §§1-18a(e)(1) and 1-21(a), G.S., were without reasonable grounds.

 

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

            1.         The actions taken at the respondents’ October 19th meeting are hereby declared null and void.

 

            2.         Henceforth the respondent shall strictly comply with the provisions of §1-21, G.S., concerning emergency and special meetings.

 

            3.         Henceforth the respondent shall strictly comply with the provisions of §§1-18a(e) and 1-21, G.S., concerning an employee’s right to require that a discussion of his or her performance be held at an open meeting.

 

            4.         A civil penalty in the amount of fifty dollars ($50.00) is imposed against each of the named respondents.  Within forty-five days of the date of mailing the notice of final decision in this case the respondent board shall remit to this Commission the aforementioned civil penalty payment totalling one hundred and fifty dollars ($150.00).

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 28, 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:

 

Anthony Connor and West Haven Professional Fire Fighters Local 1198

P.O. Box 331

West Haven, CT 06516

 

 

Mark Vere, David Forsyth and Vincent Giannotti, as Members of the Allingtown Board of Fire Commissioners, and Allingtown Board of Fire Commissioners,

c/o  Louis Smith Votto, Esq.

       415 Main Street

       West Haven, CT 06516

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission