FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Karen Avitabile and The
Middletown Press,
Complainants
against Docket
#FIC 88‑375
Personnel Policy Board of
the Town of Durham,
Respondent December
20, 1988
The above‑captioned matter was heard as a contested
case November 1, 1988, at which time the parties appeared and presented
evidence and argument on the complaint.
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. By letter
filed September 14, 1988, the complainants alleged numerous violations of the
requirements of the Freedom of Information Act in connection with a gathering
of less than a quorum of the respondent which took place August 24, 1988.
3. The
complainant alleged that on August 24, 1988 the respondent held an executive
session for a purpose not permitted under §1‑18a(e), G.S., that it failed
to vote to go into executive session as required by §1‑21, G.S., and that
it failed to file minutes for the August 24, 1988 meeting.
4. The
complainants alleged, in addition, the respondent voted in executive session
and failed to record the vote.
5. The
respondent denied the allegations, claiming that the gathering which was the
subject of the complaint was not a meeting within the meaning of §1‑18a(b),
G.S.
6. It is
found that the respondent has advisory power only.
7. It is
found that the gathering which took place on August 24, 1988, consisted of two
members of the respondent, and the first selectwoman.
Docket #FIC 88‑375 page
2
8. It is
found that, on August 24, 1988, less than a quorum of the respondent gathered
to hear the presentation of a consultant who was bidding on a contract to
develop a plan for the town's service needs.
9. It is
found that the first selectwoman is an ex‑officio member of the board.
10. It is
found that the complainant Karen Avitabile, herein, permitted herself to be
ushered out of the room after a recess, because she believed the respondent
wished to hold an executive session to discuss the selection of a consultant.
11. It is
found that, after the door to the room was closed, the two members of the board
and the first selectwoman discussed the consultants who had presented
applications, and reached a consensus regarding the need to further evaluate
one applicant.
12. It is
found that during its discussion of the consultants the respondent decided to
further evaluate the references of one consultant who had applied for the job.
13. It is
concluded that the gathering of the respondent on August 24, 1988, was a
meeting within the meaning of §1‑18a(b), G.S., because, despite the
absence of a quorum, it was a proceeding of the agency to consider the
selection of a consultant.
14. It is
concluded that the discussion of the consultants' qualifications was an
executive session, but that it was not held for a proper purpose under §1‑18a(e),
G.S.
15. It is
concluded that the respondent is required under §1‑19(a), G.S., to
provide a record of its proceedings on August 24, 1988.
16. It is
found that it is not necessary to consider the issue whether a motion to go
into executive session was required, because the executive session itself was
illegal.
17. It is
found that the consensus of the respondent at its August 24, 1988, meeting to
further evaluate the references given by one consultant was not a matter
requiring a vote, because there was no quorum present; however, the consensus
reached should be reflected in the minutes.
18. The
complainants alleged that the agendas of meetings of the respondent for the
last six months failed to properly specify the matters discussed at its
meetings.
19. It is
found that the Commission has no jurisdiction over claims regarding agendas
filed more than thirty days prior to the filing of the complainant's complaint.
Docket #FIC 88‑375 page
3
20. All other
allegations contained in the complaint were withdrawn by the complainants at
hearing.
21. The
complainants requested that the Commission impose a civil penalty upon the
respondent.
22. It is
found, since this complaint was filed but prior to the date of hearing in this
matter, that a substantial number of public officials from Durham, including
two members of the respondent and the first selectwoman, attended a Freedom of
Information workshop.
23. It is
found that, under the circumstances of this case, consideration of a civil
penalty is inappropriate.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above‑captioned
complaint:
1. The
respondent shall henceforth comply with the requirements of §1‑18a(e), §1‑19(a),
and §1‑21, G.S.
2. The
respondent shall create minutes of the August 24, 1988 meeting as required by
§1‑19(a), G.S.
3. Both the
respondent and the complainants are urged to regard their interactions over the
Freedom of Information Act as a learning process. The act is complicated and not entirely clear. A full appreciation of its application
requires time and some study. The public officials who appeared at the hearing
showed patience and a conciliatory attitude regarding the complainants' efforts
to get compliance with the Freedom of Information Act. The Commission hopes that the same qualities
will color the relationships of the parties with each other in the future.
Approved by order of the Freedom of Information
Commission at its special meeting of December 20, 1988.
Catherine
H. Lynch
Acting
Clerk of the Commission