Docket #FIC 1996-464

The above-captioned matter was heard as a contested case on February 28, 1997, at which time the complainant and 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:

2. By letter of complaint dated September 27, 1996, and filed on October 3, 1996, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by:

a. convening in executive session at its September 12, 1996 meeting for an improper purpose concerning Mary Kidd;

b. convening in executive session at its September 18, 1996 meeting for an improper purpose to discuss "Attorney Client Privileged Communications," and then discussing other matters not on the agenda during the executive session; and

c. failing to identify the nature of the attorney-client communication or the pending litigation to which the executive session discussion at its September 18, 1996 meeting pertained.

[a] public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.

4. Section 1-18a(e)(1), G.S., permits a public agency to convene in executive session 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."

5. It is found that during the summer of 1996 the first selectman learned of allegations of improprieties in the tax collector’s office where Ms. Kidd was then employed as the senior clerk.

6. It is also found that on September 10, 1996 the first selectman of Colchester met with Ms. Kidd and her union representative, informed her that the respondent intended to discuss her employment and performance at its September 12, 1996 meeting, and advised her that she had a right to have the discussion held in public session, to which Kidd responded that she wanted such discussion to occur in an executive session.

7. It is further found that on September 12, 1996 the respondent held a regular meeting and that the meeting agenda included the following item: "12. Discuss Performance of Personnel--Gail Calderone, Mary Kidd."

8. It is further found that at its September 12, 1996 meeting the respondent convened in executive session and discussed Ms. Kidd’s performance, as it related to the allegations of improprieties in the tax collector’s office.

9. It is therefore concluded that the September 12, 1996 executive session was convened for a permissible purpose, pursuant to § 1-18a(e)(1), G.S.

10. Accordingly, it is concluded therefore, with respect to the allegation described in paragraph 2a., above, that the respondent did not violate the FOI Act under the facts of this case.

11. It is found that on September 18, 1996 the respondent held a special joint meeting with the Colchester Board of Finance, and that the meeting agenda included the following item: "2. Discuss Attorney Client Privileged Communications."

12. It is found that at the September 18, 1996 meeting the respondent and the board of finance convened in executive session and discussed an August 15, 1996 letter from the town attorney to the first selectman of Colchester.

13. The complainant contends that the August 15, 1996 letter is not exempt from disclosure under the FOI Act and therefore is not properly a subject for an executive session.

14. Section 1-18a(e)(5), G.S., permits a public agency to convene in executive session to discuss ". . . any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19."

15. Section 1-19(b)(10), G.S., permits the nondisclosure of ". . . communications privileged by the attorney-client relationship."

16. The August 15, 1996 letter was submitted to the Commission for in camera inspection.

17. It is found that the August 15, 1996 letter is a legal opinion from the town attorney to the first selectman of Colchester, in response to a request from the first selectman, addressing the first selectman’s questions and concerns about the alleged improprieties in the tax collector’s office, and suggesting strategies and appropriate remedies for handling the alleged problems.

18. It is therefore concluded that the August 15, 1996 letter is a "communication privileged by the attorney-client relationship" within the meaning of § 1-19(b)(10), G.S.; and that consequently, discussion of the letter was a permissible subject for an executive session pursuant to § 1-18a(e)(5), G.S.

19. It is found that the respondent’s discussion in executive session on September 18, 1996 was limited to the discussion of the August 15, 1996 letter.

20. It is concluded therefore, with respect to the allegation described in paragraph 2b., above, that the respondent did not violate the FOI Act.

21. It is found however, that prior to convening the September 18, 1996 executive session, the respondent would only state that its purpose was to discuss attorney-client privileged communications, although following the subject executive session, the first selectman of Colchester stated in open session that the privileged communication discussed concerned the "strategies and appropriate remedies regarding problems in the Tax Collector’s Office."

22. It is found that the respondent failed to fairly apprise the public of the reason for the executive session, prior to convening in executive session, as required by § 1-21(a), G. S.

23. With respect to the allegation described in paragraph 2c., above, it is concluded therefore, that although the September 18, 1996 executive session discussion was permissible, the respondent violated § 1-21(a), G.S., by failing to fairly apprise the public of the reason for such session.

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

1. Henceforth the respondent shall strictly comply with the requirements for convening an executive session, as set forth in § 1-21(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 13, 1997.

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:
Charles Jackter
3 Raven Road
Colchester, CT 06415

Board of Selectman, Town of Colchester
c/o Richard A. Mills, Jr. Esq.
Shipman & Goodwin
1 American Row
Hartford, CT 06103-2819

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
fic1996-464/FD/tcg/08221997

In the Matter of a Complaint by	FINAL DECISION
Charles Jackter,
Complainant
against	Docket #FIC 1996-464
Board of Selectmen, Town Of Colchester,
Respondent	August 13, 1997