FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Francis T. D'Onofrio,
Complainant
against Docket #FIC 91-148
Southington Town Council,
Respondent October 23, 1991
The above-captioned matter was heard as a contested case on August 22, 1991, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with Docket #FIC 91-144.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-18a(a), G.S.
2. By letter of complaint filed June 5, 1991, the complainant appealed to the Commission, alleging that the respondent held executive sessions to discuss his position and its elimination without notice to him.
3. More specifically, the complainant alleges in his June 5, 1991 complaint that the respondent:
a. conducted an improper executive session to discuss a personnel matter at its April 22, 1991 regular meeting, without placing the matter on its agenda and without notifying the complainant; and
b. conducted an executive session to discuss personnel matters at its May 28, 1991 regular meeting without placing the matter on its agenda and without giving notice to the employee discussed.
4. In addition, at the hearing the complainant amended his complaint to allege that the respondent held an unnoticed meeting on the afternoon of May 13, 1991.
Docket #FIC 91-148 Page 2
5. It is found that the respondent held a regular meeting on April 22, 1991.
6. It is found that the respondent voted unanimously to add consideration of a personnel matter in executive session to the agenda of its April 22, 1991 meeting.
7. It is found that the actual purpose of the executive session was to discuss the staffing levels in certain town agencies, including the planning, engineering, assessment and building departments. Specifically, the respondent considered reductions in upper-level department positions in order to reduce expenses in the new budget.
8. It is found that no town employees were named or discussed in terms of their job performance.
9. The complainant maintains that, with respect to positions such as his own that are occupied by only one individual, discussion of that position necessarily was discussion of him as an employee.
10. It is found, however, that the purpose and content of the executive session was discussion of the effect of staffing levels on the new budget, and not of the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee.
11. It is therefore concluded that the respondent did not violate §1-18a(e)(1), G.S., by failing to notify the complainant that discussion concerning the elimination of his position would occur at the April 22, 1991 meeting.
12. The respondent concedes that it violated §§1-18a(e)(1) and 1-21(a), G.S., by convening an executive session to discuss budgetary matters.
13. It is concluded that a discussion of the impact of staffing levels on budgetary matters in executive session, under the stated purpose of discussion of personnel issues, constitutes a secret or unnoticed meeting within the meaning of §1-21i(b), G.S.
14. It is found that the complainant learned on or about May 24, 1991 that a decision concerning his position was discussed in executive session at the April 22, 1991 meeting.
15. It is therefore concluded that the complaint was filed within the thirty-day jurisdictional period required by §1-21i(b), G.S.
16. With respect to the allegation described in paragraph 3.b, above, it is found that the respondent voted unanimously to add consideration in executive session of a personnel matter to the agenda of its May 28, 1991 meeting.
Docket #FIC 91-148 Page 3
17. The respondent concedes that, in the context of discussing the permissibility of the town assessor's outside employment, it discussed the assessor's performance in executive session on May 28, 1991 without notifying him, in violation of §1-18a(e)(1), G.S.
18. With respect to the allegation described in paragraph 4, above, it is found that three of the nine members of the respondent gathered on the afternoon of May 13, 1991 to inform the town manager that certain positions (including the complainant's) discussed at the April 22, 1991 executive session would be proposed for elimination at the respondent's regular meeting that evening.
19. It is found that the purpose of the May 13, 1991 afternoon gathering was to provide advance notice to the town manager of the action to be considered that evening.
20. The complainant maintains that, notwithstanding the absence of a quorum, the May 13, 1991 afternoon gathering was a hearing or other proceeding within the meaning of §1-18a(b), G.S.
21. In support of his claim, the complainant points to the opinion of the town's corporation counsel that a gathering of less than a quorum of the town conservation commission to conduct a site visit and interview a property owner should be noticed and otherwise treated as a meeting within the meaning of §1-18a(b), G.S.
22. It is found, however, that the three members of the respondent who communicated to the town manager their intention to consider certain action did not then discuss or act upon a matter over which the town council has supervision, control, jurisdiction or advisory power.
23. Specifically, it is found that the communication described in paragraph 18, above, was limited to communication of the agenda of a meeting of the respondent, within the meaning of §1-18a(b), G.S.
24. It is therefore concluded that the communication described in paragraph 18, above, was not a meeting within the meaning of §1-18a(b), G.S.
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 of §§1-18a(e)(1) and 1-21(a), G.S., concerning notice to affected officers or employees, and limitation of such executive sessions to personnel, and not budgetary, discussions.
Docket #FIC 91-148 Page 4
2. With respect to the allegation described in paragraph 4 of the findings, above, the complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 23, 1991.
Karen J. Haggett
Clerk of the Commission
Docket #FIC 91-148 Page 5
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:
Francis T. D'Onofrio
9 Penncross Drive
Windsor, CT 06095-3262
Southington Town Council
c/o Frederick L. Dorsey, Esq.
Siegel, O'Connor, Schiff, Zangari & Kainen
171 Orange Street
New Haven, CT 06510
Karen J. Haggett
Clerk of the Commission