FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL DECISION
Robert Caffery
Complainant Docket #FIC 86-95
against
Volunteer Fire
Department of the Town of Portland
Respondent May 28, 1986
The above captioned matter was
scheduled for hearing on April 23, 1986 at which time the parties appeared and
presented evidence and argument on the complaint. Thereafter it was continued to May 2, 1986 at which time further
evidence and argument was presented.
After consideration of the entire
record the following facts are found:
1.
The respondent is an organization composed of volunteers and
administered in accordance with its own by-laws.
2.
The equipment and fire houses utilized by the respondent are provided by
the town of Portland.
3.
7-301, G.S. permits any town, city or borough to appropriate funds
to a volunteer fire company or companies for services rendered or to be
rendered within its confines.
4.
7-308, G.S. obligates the town in which the respondent functions to
assume liability for damages caused by volunteer firemen where damages
complained of arose while the volunteer fireman was performing fire duties.
#FIC 86-95 page 2
5.
7-314 and 7-314a provide that "active members of
volunteer fire companies" are eligible under certain conditions for
compensation for death, disability or injuries under chapter 568 (Workmen's
Compensation Act).
6.
7-313c permits towns to indemnify volunteer firemen for expenses
for tuition and textbook charges for courses on fire technology and
administration.
7.
7-313(e), G.S. and 7-313b authorize the fire officer in charge
of a fire company to exercise special powers under certain conditions.
8.
It is concluded that the respondent is a public agency within the
meaning of 1-18a(a), G.S., and that it is subject to the requirements of
the Freedom of Information Act.
9.
By complaint filed March 27, 1986 the complainant alleged that the
respondent failed to comply with the Freedom of Information Act on March 5,
1986, when the executive committee of the respondent met to discipline him
without giving him notice of the discussion of his performance.
10. The
complainant further alleged that the respondent failed to comply with the act
again on March 18, 1986, when the executive committee met first with the chief
of the department and subsequently with the complainant, at which time the
complainant was informed that the the suspension imposed by the executive committee
at the March 5, 1986 meeting would remain in effect.
11. The
complainant further alleged that on March 14, 1986, the respondent failed to
provide copies of the minutes of the March 5, 1986 meeting.
12. In
February the complainant, a volunteer fireman, responded to an emergency call
where an unconscious male victim was identified as having A.I.D.S. by a woman
present in his apartment.
13. Complainant
was unable to work on the victim with proper protection because the trauma kit
did not contain the required rubber gloves.
14. Following
this incident, the complainant wrote to his attorney regarding the incident and
stated in this letter that "due to the negligent care of the equipment and
the lackadaisical attitude of the department, I will hold the department
responsible for all damages incurred, including defamation of character."
FIC #86-95 page 3
15. Copies
of the letter to the attorney were circulated by the complainant to members of
the respondent.
16. On
March 5, 1986, the respondent held a meeting at which it discussed the
complainant's letter to his attorney and reached a decision to suspend the
complainant for sixty days.
17. On
March 8, 1986, the complainant was notified by certified mail that, at a meeting
on March 5, 1986, the executive committee decided to suspend him for sixty
days.
18. In
relevant part 1-18a(e)(1), G.S. defines "executive session" as
a meeting of a public agency at
which the public is excluded for one or more of the following purposes: (1)
Discussion concerning the appointment, employment, performance, evaluation,
health or dismissal of a public officer or employee, provided that such
individual may require that discussion be held at an open meeting.
19. It
is found that the complainant is a public officer in his capacity as a
volunteer firemen.
20. It
is found that 1-18a(e)(1), G.S. requires a public agency to ask the person
whose performance will be discussed whether he or she requires the discussion
be held at an open meeting.
21. It
is concluded that the respondent failed to inform the complainant that the
meeting of the executive committee would be held on May 5, 1986 and, since his
performance would be discussed, that he had a right to require the meeting be
held in public.
22. The
second meeting with the executive board was initiated by the complainant.
23. Part
of the meeting was held without the complainant but was attended by the chief.
24. The
chief talked, not about the complainant's performance, but rather about the
seriousness of the events which had taken place, and told the executive
committee to "dot its "I's" and cross its "T's."
#FIC 86-95 page 4
25. When
the executive committee met thereafter with the complainant, they discussed his
performance but they did not reconsider his suspension; they informed him that they would not
rescind the suspension, and that he could improve relationships by writing a
letter of apology.
26. The
respondent argued that the meeting on March 18 did not violate
1-18a(e)(1), G.S. because the complainant was not discussed at the portion
of the meeting which was attended by the chief.
27. The
respondent further argued that the meeting with the complainant on March 18,
1986 cured the defects in its proceeding on March 5, 1986.
28. It
is found that the March 18, l986 executive session with the chief was illegal.
29. The
meeting was illegal because it was an executive session not held for any proper
purpose within the meaning of 1-18a(e), G.S.
30. Thereafter,
the meeting with the complainant on March 18, 1986, was also illegal because,
although it was treated as an executive session, the respondent never gave the
complainant any opportunity to choose whether the session should be closed to
the public or open as is required by 1-18a(e)(1), G.S.
31. On
March 14, 1986, the brother of the complainant requested a copy of the minutes
of the executive committee meeting of March 5, 1986.
32. No
minutes were provided to him because the minutes had not yet been completed.
33. 1-21
provides in relevant part that:
The votes of each member of any such
public agency upon any issue before such public agency shall be reduced to
writing ...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.
34. It
is found that the respondent failed to provide minutes of the March 5, 1986
meeting within seven days of the meeting.
#FIC 86-95 page 5
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above captioned complaint:
1. The
vote to suspend the complainant for 60 days which was taken at the March 5,
1986 meeting, is hereby declared null and void.
2. The
respondent shall henceforth comply with 1-21 and 1-18a(e), G.S.
Approved by order of the Freedom of
Information Commission at its regular meeting of May 28, 1986.
ÿ
Karen J.
Haggett
Clerk of the Commission