FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Dennis Anziano,
Complainant
against Docket #FIC 92-118
Robert Wigham, James Mitchell, William Tuthill, June Hearrell and Madison Board of Police Commissioners,
Respondents January 27, 1993
The above-captioned matter was heard as a contested case on September 29 and October 15, 1992, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondents are public agencies within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed April 8, 1992, the complainant appealed to the Commission, alleging that the respondents at their March 16, 1992 special meeting violated the Freedom of Information ("FOI") Act in the following respects:
a. by convening in executive session pursuant to 1-18a(e)(2) and 1-18a(g) and (h), G.S., when there was no applicable claim or litigation pending;
b. by impermissibly convening in executive session pursuant to 1-18a(e)(5) and 1-19(b)(1), G.S.;
c. by convening in executive session to discuss a personnel issue without affording the employee discussed the opportunity to require that discussion be in public pursuant to 1-18a(e)(1), G.S.;
d. by permitting persons to attend the executive session when they were not necessary to present testimony or opinion, in violation of 1-21g, G.S.;
e. by discussing items beyond the scope of the notice of the meeting, in violation of 1-21(a), G.S.; and
f. by failing to reflect the complainant's objection to the executive session in the minutes of the meeting.
Docket #FIC 92-118 Page 2
3. The complainant also requested the imposition of civil penalties against the respondents in his complaint, and a declaration that the subject meeting is null and void.
4. At the hearing, the respondents requested the assessment of attorney's fees against the complainant, claiming that the complaint is frivolous.
5. There being no statutory basis for an award of attorney's fees under the FOI Act, the respondents' request is denied.
6. At the hearing, the respondents also requested a postponement of the hearing because the Commission's notice of hearing and order to show cause had been sent in care of the Madison Police Department, which request was denied by the hearing officer.
7. It is found that the respondent board's address is the same as that of the Madison Police Department.
8. It is concluded that the respondents failed to state an adequate basis for postponing the hearing in this matter.
9. It is found that the respondents held a special meeting on March 16, 1992 to discuss the procedures that would govern termination proceedings against the complainant, and to discuss the draft of the charges to be brought against the complainant.
10. It is found that the notice of that meeting stated the following agenda:
Discuss pending litigation and preliminary draft of notice to dismiss from office pursuant to Connecticut General Statutes 7-278*
*Note: The Commission may vote to discuss this matter in Executive Session.
11. It is found that, upon calling the meeting to order at 7:35 p.m., the respondents convened in executive session for the following stated reasons:
First: to discuss pending litigation relating to our consideration of action to enforce or implement legal relief or legal rights pursuant to Connecticut General Statutes, Section 7-278; and
Second: to discuss preliminary draft of Notice of Intent to Dismiss pursuant to Connecticut General Statutes, Section 7-278, it being the determination of this Commission that, until finalized, the public interest in withholding this document clearly outweighs the public interest in disclosure.
Docket #FIC 92-118 Page 3
12. It is found that the respondents reconvened in public session at 9:05 p.m., at which time they voted to adopt charges and present them to the complainant.
13. With respect to the allegation described in paragraph 2.a., above, the respondents maintain that they permissibly convened in executive session for the purpose of discussing their strategy for conducting their termination proceedings in accordance with the demands of the FOI Act and due process.
14. It is found that the respondent board discussed in the latter portion of their executive session such issues as what portions of the termination proceedings could be public or private, whether the proceedings should be recorded, how to accommodate public access, what to do if there was insufficient space to accommodate the public, what procedures to follow in scheduling and continuing hearings, how to handle disruptions, and generally how to assure that the complainant was afforded due process.
15. It is found that the respondent board did not discuss prosecutorial strategy during the executive session.
16. Section 1-18a(e)(2), G.S., provides in pertinent part:
(e) "Executive sessions" means a meeting of a public agency at which the public is excluded for one or more of the folowing purposes: ... (2) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled .... [Emphasis added.]
17. The respondents maintain that they permissibly convened in executive session persuant to 1-18a(e)(2) and 1-18a(g) and (h), G.S., because their discussion in executive session concerned the respondent board's consideration of action to enforce or implement legal relief or a legal right within the meaning of 1-18a(h), G.S.
18. It is found that the repondent board in the contemplated termination proceedings would act in an adjudicative capacity, and not as a party to the dispute.
19. It is concluded that none of the respondents, in their adjudicatory capacities, was a "party" to a pending claim or litigation within the meaning of 1-18a(e)(2), G.S.
20. It is concluded that the respondents violated 1-18a(e)(2), G.S., by convening in executive session to discuss the procedures they would follow as an adjudicative body.
Docket #FIC 92-118 Page 4
21. With respect to the allegation described in paragraph 2.b, above, it is found that the earlier portion of the executive session was devoted to a discussion of the draft charges that were presented by attorney John J. Kelly at that meeting.
22. It is found that the draft of charges presented to the respondents was a preliminary draft within the meaning of 1-19(b)(1), G.S.
23. It is found that respondents' motion to convene in executive session, which was unanimously approved by the respondent board, recited that it was the determination of the respondent board that the public interest in withholding the draft of the Notice of Intent to Dismiss clearly outweighed the public interest in its disclosure.
24. It is found that the respondent board's determination was based on the advice of counsel.
25. It is found that the advice of the respondent board's counsel was rational and in good faith.
26. It is found that the portion of the respondent board's discussion in executive session that concerned the draft of the Notice of Intent to Dismiss would, if held in public, have resulted in the disclosure of information contained in a record exempt pursuant to 1-19(b)(1), G.S.
27. It is therefore concluded that the respondents permissibly convened in executive session pursuant to 1-18a(e)(5), G.S., for that portion of their discussion that concerned the draft of the Notice of Intent to Dismiss.
28. With respect to that portion of the complaint described in paragraph 2.c, above, the respondents maintain that the personnel aspect of the termination proceedings had concluded with their directive to attorney Kelly to draft a Notice of Intent to Dismiss.
29. The respondents also maintain that since they only discussed the procedures they would follow, and not the merits of the charges against the complainant, their discussion did not fall within the ambit of 1-18a(e)(1), G.S.
30. The complainant maintains, however, that the respondents' discussion of the draft Notice of Intent to Dismiss and of the procedures they would follow in a termination proceeding all were discussion concerning the dismissal of a public officer or employee within the meaning of 1-18a(e)(1), G.S., and that the complainant was therefore entitled to notice that his dismissal would be discussed, as well as the right to require that discussion to be held in public.
Docket #FIC 92-118 Page 5
31. It is found that the decision to commence termination proceedings against the complainant had been made on December 11, 1991, before the meeting at issue in this case.
32. With respect to the respondent's discussion of its draft Notice of Intent to Dismiss, it is concluded that, since the respondent permissibly convened in executive session pursuant to 1-18a(e)(5), G.S., the respondent was not required to notify the complainant of its intent to do so, or to give the complainant an opportunity to require such discussion to be in public.
33. With respect to the respondent's discussion of its own adjudicative procedures, it is found that the respondent was invoking these particular procedures for the first time, that the procedures discussed concerned the issue of dismissal procedures generally, and would be applicable to any comparable employee, not just the complainant.
34. It is also found that no issues were discussed in executive session that implicated the personal privacy rights of the complainant.
35. It is therefore concluded that the respondent did not violate 1-18a(e)(1), G.S., by failing to notify the complainant that it would discuss termination procedures; although, as concluded in paragraph 20, above, such discussion was not permissibly held in executive session.
36. With respect to the allegation described in paragraph 2.d., above, it is found that the March 16 executive session was attended in its entirety by, in addition to members of the respondent board, attorney John J. Kelly, Attorney Michael Williams, and attorney Floyd Dugas.
37. It is found that attorney Dugas's firm was the existing counsel for the respondents generally; that attorney Kelly had been specifically retained to represent the respondents in their prosecutorial capacity; and that attorney Williams had been specifically retained to represent the respondents in their adjudicative capacity.
38. It is found that each of the attorneys was asked throughout the executive session to provide opinion pertinent to the matters before the respondents.
39. It is also found that the presence of the three attorneys during the entirety of the executive session was necessary for them to provide answers to the questions they were asked at various points.
40. It is therefore concluded that the presence of the three attorneys during the executive session did not violate 1-21g(a), G.S.
Docket #FIC 92-118 Page 6
41. With respect to the allegation described in paragraph 2.e, above, it is found that the notice described in paragraph 10, above, references a statutory termination procedure applicable only to chiefs of police, and a preliminary draft of a notice to terminate.
42. It is found that the termination procedure and the draft notice were the only business taken up at the meeting.
43. It is therefore concluded that the notice described in paragraph 10, above, reasonably apprised the public of the business to be transacted at the meeting.
44. With respect to the allegation described in paragraph 2.f, above, it is concluded that the complainant has failed to allege a violation of the FOI Act.
44. The Commission in its discretion declines to order the relief requested by complainant, as described in paragraph 3, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. With respect to the allegation described in paragraph 2.a of the findings, above, henceforth the respondents shall strictly comply with the requirements of 1-18a(e)(2) and 1-21(a), G.S.
2. With respect to the remainder of the allegations described in paragraph 2 of the findings, above, the complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 27, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-118 Page 7
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:
Dennis Anziano
c/o Attorney Ralph E. Wilson
210 South Main Street
Middletown, CT 06457
Robert Wigham, James Mitchell, William Tuthill, June Hearrell and Madison Board of Police Commissioners
c/o Attorney Floyd J. Dugas
Berchem, Moses & Devlin, P.C.
75 Broad Street
Milford, CT 06460
Debra L. Rembowski
Acting Clerk of the Commission