FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Joseph Calve and The Connecticut Law Tribune,

Complainants

against Docket #FIC 93-309

State of Connecticut Criminal Justice Commission,

Respondent August 10, 1994

The above-captioned matter was heard as a contested case on March 1, 1994, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint. Records reviewed by the respondent during its closed session of November 3, 1993, were taken under seal by this Commission for an in camera inspection.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. By letter of complaint filed with this Commission on November 10, 1993, the complainants alleged that the respondent violated the provisions of the FOI Act by conducting an improper executive session on November 3, 1993. They also alleged that the respondent's actions of November 3, 1993 were at odds with Opinion 86-086 of the Attorney General's office concerning procedure with respect to the discipline of an assistant state's attorney.

2. It is found that on November 3, 1993, the respondent met to consider a complaint filed by Mr. Woody Allen's attorneys against Litchfield State's Attorney Frank Maco concerning the propriety of Mr. Maco's public comments after the final decision to forego any prosecution of Mr. Allen was made.

3. The respondent claims that its November 3, 1993 meeting was not a meeting of a public agency pursuant to 1-19c, G.S., which provides that "... the division of criminal justice shall not be deemed to be a public agency except in respect to its administrative functions."

4. It is found that the respondent commission, which is part of the division of criminal justice, has among its powers the following:

to hire all prosecutors in Connecticut;

Docket #FIC 93-309 Page 2

to generally supervise the chief state's attorney and states' attorneys subject to their collective bargaining agreements;

to review complaints lodged against states' attorneys and the chief state's attorney;

to appoint states' attorneys and the chief state's attorney; and

to remove and discipline states' attorneys and the chief state's attorneys.

5. It is found that although state's attorney Maco's investigation and decisional process to decline to prosecute Mr. Allen was a prosecutorial function, the respondent's after-the-fact review of Mr. Maco's employment performance is administrative in nature.

6. It is accordingly concluded that under the discrete facts of this case, the respondent is a public agency within the meaning of 1-18a(a) and 1-19c, G.S.

7. It is also concluded that the meeting of the respondent on November 3, 1993 was a meeting within the meaning of 1-18a(b), G.S.

8. It is found that during its November 3, 1993 meeting, the respondent entered executive session to evaluate state's attorney Maco's employment performance.

9. It is also found that Mr. Maco was asked by the respondent whether he wanted this discussion to be held in public session, which offer Mr. Maco declined.

10. It is concluded that the respondent entered executive session for a permissible purpose pursuant to 1-18a(e)(1), G.S.

11. It is also found that the respondent invited Mr. Maco as well as four attorneys for their opinions pursuant to 1-21g(a), G.S.

12. It is also found, however, that at the outset of the executive session at issue, the respondent conducted a brief discussion of how it would organize the ensuing evaluation procedurally.

13. This Commission takes administrative notice of its record and final decision in contested case docket #FIC 93-213.

14. It is concluded that the procedural discussion conducted by the respondent in its executive session of November 3, 1993 was not properly closed to the public pursuant to 1-18a(e)(1), G.S.

Docket #FIC 93-309 Page 3

15. It is also concluded that the respondent's claim of a proper executive session pursuant to 1-18a(e)(5), G.S., is inapplicable to the respondent's brief organizational discussion at the outset of its executive session.

16. It is accordingly concluded that for a brief period at the outset of its otherwise permissible executive session, the respondent violated the provisions of 1-21(a), G.S., when it discussed the procedure it would follow during its ensuing evaluation of Mr. Maco's employment performance.

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 provisions of 1-21(a), G.S., when conducting those meetings governed by the FOI Act.

2. That portion of the complaint relating to alleged non-compliance by the respondent with Opinion 86-086 of the Attorney General's office is hereby dismissed for lack of subject matter jurisdiction.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 10, 1994.

Debra L. Rembowski

Clerk of the Commission

Docket #FIC 93-309 Page 4

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:

JOSEPH CALVE and THE CONNECTICUT LAW TRIBUNE

One Post Road

Suite 100

Fairfield, CT 064300

STATE OF CONNECTICUT, CRIMINAL JUSTICE COMMISSION

c/o Laurie Adler, Esq.

Assistant Attorney General

P.O. Box 120

Hartford, CT 06141-0120

Debra L. Rembowski

Clerk of the Commission