FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Thom Serrani,
Complainant
against Docket #FIC 92-321
Athanasios Loter, Allen Kaltman, John Marsalisi and Melvin Grove, as Members of the Stamford Board of Ethics, and the Stamford Board of Ethics,
Respondents July 14, 1993
The above-captioned matter was heard as a contested case on April 22, 1993, at which time the complainant and the respondents appeared 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 individual respondents are members of the respondent board and all are public agencies within the meaning of 1-18a(a), G.S.
2. By letter of complaint dated and filed with the Commission on October 14, 1992, the complainant alleged that on September 15, 17 and 22, 1992, the respondents held three special meetings, during the first two of which they improperly convened in executive session to discuss his performance and conduct as mayor regarding the purchase of equipment and services relating to a combined dispatch system, (hereinafter "E911 matter"), in violation of 1-18a(e) and 1-21, G.S.
3. The complainant further alleged that as a result of discussions held in executive session on September 15 and 17, 1992, a vote was taken at the respondent board's publicly held September 22, 1992 meeting, regarding the adoption and issuance of a final decision in the E911 investigation, without any public deliberation by the board.
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4. The complainant requested the imposition of a civil penalty against the individual respondents, and the issuance of an order by the Commission that all action and discussion pertaining to the complainant's involvement in the E911 matter occurring at each of the three meetings be declared null and void.
5. The respondent board claims that as a matter of law it was entitled to hold discussions about the complainant's role in the E911 matter in executive session, pursuant to 1-18a(e)(1), G.S., because it was a personnel matter.
6. Additionally, the respondent board maintains that it attempted to safeguard the complainant's personal privacy interest by holding its September 15 and 17, 1992 discussions in executive session.
7. The Commission takes administrative notice of the case files, records and decisions in its contested cases, docket: #FIC 92-94, Thom Serrani v. Stamford Board of Ethics, and #FIC 91-123, Thom Serrani v. Stamford Board of Ethics.
8. It is found that special meetings were held by the respondent board on September 15, 17 and 22, 1992. Executive sessions were called and convened at the September 15 and 17, 1992 meetings to discusss the complainant's role in the E911 matter.
9. Section 1-18a(e)(1), G.S., states in relevant part that the public may be excluded from a meeting of a public agency at which there is a 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 . . . . [Emphasis added].
10. It is found that although the complainant's term as mayor of the city of Stamford expired on November 30, 1991, the E911 investigation conducted by the respondent board was an investigation into alleged ethical code violations by the complainant during his tenure as mayor.
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11. Therefore, it is concluded that for purposes of the September 15 and 17, 1992 executive sessions convened by the respondent board for discussion and deliberation regarding the E911 investigation, the complainant was a "public officer or employee" within the meaning of 1-18a(e)(1), G.S.
12. It is found that the complainant received copies of the agendas and notices of meeting for the September 15 and 17, 1992 special meetings, which stated that the respondent board would convene an executive session to discuss:
[a]. [p]ending claims and litigation strategy/
negotiation, [and]
[b]. [d]eliberations regarding the [E911 matter].
13. The respondents concede that no action was taken to inform the complainant of his right to object to the board's expressed intention to deliberate in executive session on September 15 and 17, 1992.
14. It is found that the respondent board failed to inform the complainant of his right to have the discussions about his performance in the E911 matter held in a public rather than an executive session, as required by 1-18a(e)(1), G.S.
15. It is therefore concluded that the respondent board failed to provide the complainant with a reasonable opportunity to require the respondent board to conduct its September 15 and 17, 1992 discussions concerning the complainant and the E911 matter in public session, and consequently, those executive sessions held to discuss the complainant's performance were convened in violation of 1-18a(e)(1) and 1-21, G.S.
16. The respondent board also contends that the relationship of pending claims and litigation to consideration of the E911 matter, necessitated that the discussions about the complainant's role in the E911 matter be held in executive session.
17. Specifically, the respondent board maintains that in Reilly v. City of Stamford, Super. Ct. J.D. Stamford/Norwalk at Stamford, No. CV 91 0116258 S (Mottolese, J), hearings were held on June 5, 1991 and September 26, 1991, and a permanent injunction was issued against the board which affected the respondent board's deliberations on September 15 and 17, 1992, and therefore the E911 deliberations relative to the injunction constituted "strategy and negotiations with respect to pending claims or pending litigation" for purposes of triggering 1-18a(e)(2), G.S.
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18. It is found that the permanent injunction that was issued against the board in Reilly v. City of Stamford, concerning the board's proceedings against the complainant and others for alleged ethics code violations restricted the board's inquiry to patterns or collective practices of ethics code violations.
19. Section 1-18a(e)(2), G.S., states in relevant part that an executive session is permissible to discuss 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; . . .
20. It is found that while the court in Reilly indicated that it would retain jurisdiction in the event that future clarification of the injunction was necessary, and in fact the parties sought an order of clarification of the injunction in September of 1991, the respondents failed to prove that at the time of the subject 1992 meetings there was any litigation "pending" either in Reilly, or any other matter, which was discussed as part of the respondent board's E911 deliberations.
21. The Commission is also unpersuaded that any claim was pending at the time of the subject 1992 meetings to which the respondent board, or any member thereof, was a party for purposes of triggering 1-18a(e)(2), G.S., on either September 15 or 17, 1992.
22. It is therefore concluded that the respondent board unlawfully convened in executive session at its September 15 and 17, 1992 meeting under the provisions of 1-18a(e)(2), G.S.
23. It is found that at the respondent board's publicly held September 22, 1992 meeting, a copy of the board's draft findings and opinion regarding the complainant's role in the E911 matter was read, and a motion and vote to adopt the draft findings as the board's final decision followed.
24. It is found that the notice of meeting and agenda for the September 22, 1992 meeting stated that as part of its public session the respondent board would have "[d]eliberations and a vote . . . [regarding] the [E911 matter]."
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25. It is found that although the agenda indicated that additional deliberations concerning the complainant's role in the E911 matter would take place, the respondents failed to prove that any additional deliberations actually occurred before the board's vote to adopt the draft findings.
26. It is concluded, therefore, that the respondent board's motion regarding its draft opinion, and the board's final decision regarding the complainant's role in the E911 matter directly resulted from discussions about the complainant's performance which were improperly held in executive session at the respondent board's September 15 and 17, 1992 meetings.
27. The Commission finds that the respondent board has continued in a disturbing pattern of open meetings law violations, and has failed to heed the warning given in the Commission's order in docket #FIC 91-123, to " . . . comply carefully with 1-21, G.S. . . ."
28. It is found that in light of the Commission's earlier decisions in #FIC 92-94 and #FIC 91-123, the respondents' violations of 1-18a(e)(1) and 1-21, G.S., in this case were without reasonable grounds.
The following order by the Commission is hereby recommended
on the basis of the record concerning the above-captioned complaint:
1. All actions concerning the complainant and the E911 matter, taken by the respondents at their September 15, 17 and 22, 1992 meetings are hereby declared null and void.
2. The Commission imposes a civil penalty against the individual respondents, collectively, in the amount of five hundred dollars ($500.00). The aforementioned civil penalty shall be remitted to the Commission within forty-five days of the date of mailing of the notice of final decision in this case.
3. The Commission advises the respondents that the right to demand a public session, which is expressly given under 1-18a(e)(1), G.S., is given to the individual who is the subject of the discussion. Therefore, the prerogative to exercise that right belongs to the subject of the discussion who
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must be afforded a meaningful opportunity to invoke his or her preference for an open session.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 14, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
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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:
Thom Serrani
c/o Atty. Carolyn Alexander
Epsten & Fogarty
733 Summer Street
Stamford, CT 06901-1093
Athanasios Loter, Allen Kaltman, John Marsalisi and Melvin Grove, as Members of the Stamford Board of Ethics, and the Stamford Board of Ethics
c/o Atty. Laura O'Connor
Marsh, Day & Calhoun
2507 Post Road
Southport, CT 06490
Debra L. Rembowski
Acting Clerk of the Commission