FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Nicholas J. DeNoia,

Complainant

against Docket #FIC 86-68

Mayor of the City of Groton and the City Council of the City of Groton,

Respondents April 23, 1986

The above-captioned matter was heard as a contested case on April 1, 1986, at which time the complainant and respondents appeared and presented testimony, exhibits and argument on the complaint. The matter was continued to April 8, 1986, at which time the complainant and the respondents again appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondents are public agencies within the meaning of §§1-18a(a), G.S.

2. By letter of complaint filed with the Commission on March 13, 1986 the complainant, who is the deputy chief of the Groton police department, alleged that the respondents held executive sessions on January 6, 1986, February 3, 1986 and February 18, 1986 during which his employment, performance, evaluation, health and/or dismissal was discussed and that he was denied the right to have such meetings held in public.-The complainant also alleged that he was denied the right to attend a January 2, 1986 meeting concerning the same issue.

3. Included with the complainant's letter of complaint was a letter requesting "all minutes of the Mayor and Council meetings that were held concerning the employment, performance, evaluation, health of [sic] dismissal of [the complainant]" and a response from counsel to the respondents indicating that the requested minutes did not exist and would not be created.

4. It is found that the January 2, 1986, January 6, 1986 and February 3, 1986 meetings of the respondent council were held more than 30 days prior to the filing of the complainant's complaint and that pursuant to 1-21i(b), G.S., the Commission has no jurisdiction over allegations concerning such meetings.

Docket #FIC 86-68 -------- Page Two

5. It is found that on or about February 15, 1986 the respondent mayor was contacted by a member of the respondent council regarding an allegation that the complainant had failed to dispatch a police officer in response to a report that an individual was threatening to shoot himself.-The council member requested an emergency meeting of the respondent council to discuss the complainant's actions.-The mayor declined to call an emergency meeting on the ground that a regular meeting of the respondent council was scheduled for February 18, 1986 and the matter could be discussed at that time.-Also of concern to the respondents was the physical fitness of the complainant for his employment, which concern was the subject of a memorandum prepared by the office of the respondents' counsel on or about February 14, 1986.

6. Following her conversation with the council member the respondent mayor relayed the councilor's concerns to the chief of police, who, on or about February 17, 1986, contacted the complainant to discuss the matter.-On February 17, 1986 the complainant contacted the respondent mayor and discussed the allegations.

7. It is found that at its February 18, 1986 regular meeting the respondent council convened in executive session to discuss the appointment, employment, performance, evaluation, health or dismissal of the complainant, a public officer or employee, within the meaning of 1-18a(e)(1), G.S.

8. The complainant claims that he had neither notice nor actual knowledge that he would be discussed on February 18, 1986.

9. The respondents claim that during the complainant's February 17, 1986 conversation with the respondent mayor he was informed that the allegations concerning him would be discussed at the regular meeting of the respondent council scheduled for February 18, 1986.-The respondents did not claim that the complainant was informed that discussions concerning him would be conducted in executive session.

10. It is found that the complainant was not given notice that his appointment, employment, performance, evaluation, health or dismissal would be discussed in executive session on February 18, 1986.-The complainant was therefore denied the opportunity to require that the discussion concerning him be held at an open meeting.

11. The respondents claim that the February 18, 1986 executive session was convened to allow the respondent council to engage in privileged attorney-client communications with their counsel.

Docket #FIC 86-68 -------- Page Three

12. Nothing in the Freedom of Information Act permits an agency to meet in executive session solely on the ground that it intends to include its counsel in the discussion of a matter, nor could such a privilege, if it existed, override the rights specifically granted to public officers and employees by the language of 1-18a(e)(1), G.S.

13. It is concluded that the denial of the complainant's right to require that discussions concerning him be held at an open meeting violated 1-18a(e)(1), G.S.

14. The complainant has requested that the Commission order the respondents to produce minutes of the February 18, 1986 executive session which would record as fully as possible the February 18, 1986 discussion in executive session, including statements made and any actions taken by the respondent council.

15. No minutes or notes of the February 18, 1986 executive session were taken, nor was a tape of the proceedings made.-Testimony by the respondent mayor and by a member of the respondent council, both of whom attended the February 18, 1986 executive session, indicated only a vague recollection of what was said on February 18, 1986.

16. The Commission declines to order the respondents to produce the document requested by the complainant, the evidence at hearing indicating that the respondents are not capable of producing such a document.

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

1.-Henceforth the respondents shall comply strictly with the requirements of 1-18a(e)(a), G.S., upon convening in executive session to discuss personnel related matters.

Approved by order of the Freedom of Information Commission at its special meeting of April 23, 1986.

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Karen J. Haggett

Clerk of the Commission