FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
James R. Blakely,
Complainant
against Docket
#FIC 88-106
Newtown Board of Police
Commissioners,
Respondent June
22, 1988
The above-captioned matter was heard as a contested case
on May 10, 1988, at which time the complainant and the respondent appeared,
stipulated to certain facts and presented testimony, exhibits and argument on
the complaint. The matter was
consolidated for hearing with #FIC 88-105, Charles B. Browne, III v. Newtown
Police Commission.
After consideration of the entire record, the following
facts are found:
1. The
respondent is a public agency within the meaning of §1-18a(a), G.S.
2. The
respondent held a meeting on December 22, 1987 to discuss selection of a new
police chief and held meetings on January 14, 1988 and February 11, 1988 to
discuss the new police chief's contract.
3. On March
14, 1988 the Newtown board of selectmen discussed the third in a series of
proposed contracts between the town and the police chief. The board of selectmen thereafter referred
the contract to the respondent for its consideration. The contract forwarded to the respondent by the board of
selectmen had been signed by the first selectman, the chairman of the
respondent and the police chief.
4. On or
about March 14, 1988 the respondent posted notice of a special meeting to be
held March 17, 1988. The notice stated
that the special meeting would be held in executive session "for the
purpose of discussing the employment contract of [police] Chief Michael A.
DeJoseph."
5. On March
17, 1988 the respondent convened a special meeting, in closed session, at
approximately 7:40 p.m. At
approximately 8:15 p.m. the respondent voted to convene in public session,
following which it voted to accept the police chief's contract.
Docket #FIC 88-106 Page
Two
6. The
complainant, a member of the respondent, objected to and voted against both the
motion to convene in public session and the motion to accept the police chief's
contract. Town counsel and town labor
counsel were both present and advised the respondent that its actions were
permissible.
7. By letter
of complaint filed with the Commission on March 23, 1988 the complainant appealed
the March 17, 1988 actions of the respondent, claiming that the notice of
special meeting did not include notice of either a public session or a vote on
the police chief's contract. The
complainant asked the Commission to declare null and void the respondent's
March 17, 1988 vote on the police chief's contract.
8. It is
found that an executive session may only be held following the convening of a
public session, even when an agency intends to conduct all discussions in
executive session.
9. It is, therefore,
found that the respondent was not precluded from convening in public session on
March 17, 1988, although the notice of meeting referred only to an executive
session.
10. Although
not alleged in the complaint, the Commission notes that the respondent failed
to open the March 17, 1988 meeting in public session, as required by §1-21(a),
G.S.
11. It is
further found that the description of the purpose of the March 17, 1988 special
meeting was not so narrow as to have precluded action on the police chief's
contract.
12. It is
found, however, that the effect of the notice stating that the March 17, 1988
meeting would be held in executive session was to discourage members of the
public from attending such meeting.
13. It is,
therefore, concluded that the respondent violated §1-21(a), G.S. when it
provided a notice of its March 17, 1988 special meeting which had the effect of
discouraging the public from attending the meeting and thereby denying access
to both the executive session and public portions of such meeting.
14. The
respondent claims that an order declaring its March 17, 1988 vote null and void
is not appropriate because its review and approval of the contract were
conducted in an advisory capacity only.
The respondent claims that acceptance of the police chief's contract is
within the purview of the board of selectmen, not the respondent.
Docket #FIC 88-106 Page
Three
15. The
complainant claims that an order declaring null and void the March 17, 1988
vote of the respondent would provide him the opportunity to present additional
information concerning the police chief's contract.
16. It is
found that the action to which the public was denied access was a vote, without
discussion, to accept the police chief's contract.
17. The
respondent indicated no inclination to accept public comment or to conduct its
discussions in public absent a request from the police chief to do so. Any rights the complainant may have to
present evidence by virture of his membership in the respondent are not
cognizable under the Freedom of Information Act.
18. It is
concluded that an order declaring null and void the March 17, 1988 vote of the
respondent would not in any significant way enhance public input into, or
public understanding of, the process leading to the respondent's vote to accept
the police chief's contract.
19. The
Commission, therefore, declines to declare null and void the respondent's March
17, 1988 vote to accept the police chief's contract.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint.
1. The
respondent henceforth shall refrain from posting or publishing notices of
meetings or agendas which state or imply that such meetings will be held
entirely in executive session. No
meeting may be conducted entirely in executive session under the Freedom of
Information Act, and meeting notices which are so phrased are misleading and
needlessly discourage public attendance.
2. The
Commission notes that nothing in the Freedom of Information Act prohibits a
public agency from indicating in an agenda or a notice of special meeting that
an executive session will be proposed at a meeting.
Approved by order of the Freedom of Information
Commission at its special meeting of June 22, 1988.
Catherine
H. Lynch
Acting
Clerk of the Commission