FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Joseph Ferrara and George L. Bozzi, Jr.

 

                        Complainant

 

            against              Docket #FIC 94-163

 

Chairman, Wallingford Board of Education, Chairman, Wallingford Board of

Education Instructional Committee, and Wallingford Board of Education

 

                        Respondent                  December 29, 1994

 

            The above-captioned matter was heard as a contested case on November 28, 1994, at which time the complainants 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 dated May 23, 1994, and filed on May 25, 1994, the complainants appealed to the Commission alleging that the respondent board of education's instructional committee ("committee") convened in executive session at its May 2, 1994 special meeting in violation of the Freedom of Information Act.

 

            3.  In their complaint, the complainants specifically allege that the committee failed to adequately apprise the public of the purpose for the executive session in its notice for the meeting and in its vote to convene in executive session, in violation of 1-21(a), G.S., and that it actually met in executive session for a purpose not permitted under 1-18a(e), G.S.

 

            4.  It is found that the committee, which is a committee of the whole of the respondent board, voted in public session at its May 2, 1994 meeting to convene in executive session "for the purpose of discussing negotiation of a contract and personnel matters."

 

Docket #FIC 94-163                           Page 2

 

            5.  It is also found that on the notice for the May 2, 1994 meeting, the committee listed under the heading of "personnel," that there would be an executive session to cover both "[n]egotiation of a Contract" and "[d]iscussion of Personnel Matters."

 

            6.  It is further found that the complainants had reason to believe that the personnel matter in question exclusively concerned the performance of a certain high school coach.

 

            7.  In material part, 1-21(a), G.S., provides:

 

            A public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.  [Emphasis added].

 

            8.  It is found that the principals and athletic directors of Wallingford's two high schools were present at the executive session in question.

 

            9.  It is concluded that under the circumstances of this case, in which four employees of the respondent board who were subjects of the executive session in question were present at the public portion at the meeting, were observed going into the executive session and were listed in the minutes as present during the executive session, the committee did not adequately apprise the public of the purpose for the executive session in its notice for the meeting and in its vote to convene in executive session, in violation of 1-21(a), G.S.

 

            10.  The respondents claim that the portion of the executive session in question, which is the subject of the complaint herein, was permitted under 1-18a(e)(1), G.S.

 

            11.  In material part, 1-18a(e), G.S., provides:

 

            "Executive sessions" means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (1)  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 . . . and  (5)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.

 

Docket #FIC 94-163                           Page 3

 

            12.  The complainants claim that the committee did not discuss any matter permitted under 1-18a(e), G.S.  In furtherance of this claim, the complainant Bozzi testified that he overheard the discussion in executive session for 49 of the 51 minutes during which the two principals and two athletic directors were present, and that during that time there was no discussion of the appointment, employment, performance, evaluation, health or dismissal of any identified employee of the respondent board, nor was there any discussion of the contents of any such employee's personnel, medical or similar file, within the meaning of 1-18a(e), G.S.

 

            13.  In light of the testimony of complainant Bozzi, as set forth in paragraph 12 above, the respondents moved to dismiss the complaint because complainant Bozzi acted improperly in listening to the dicussion in executive session.  The motion to dismiss was denied.

 

            14.  It is found that during the executive session in question, the committee discussed (a) an employment contract, not here relevant, (b) the performance of the coach referred to in paragraph 6 above, and (c) the performance, including a critique, of the two principals and two athletic directors identified more specifically in paragraph 8 above.

 

            15.  It is therefore concluded that, as it relates to this complaint, the discussion during the executive session in question was for a purpose permitted under 1-18a(e)(1), G.S., and accordingly, it is concluded that the respondents did not violate 1-21(a), G.S., in this regard.

 

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  With respect to that portion of the complaint which alleges that the public was not adequately apprised of the purpose of the executive session in question, the respondent shall henceforth strictly comply with the requirements of 1-21(a), G.S.

 

            2.  With respect to that portion of the complaint which alleges that the committee met in executive session for a purpose not permitted under 1-18a(e), G.S., the complaint is hereby dismissed.

 

Docket #FIC 94-163                           Page 4

 

            3.  The Commission notes that much of the confusion that led to this complaint could have been avoided if the respondents had more clearly apprised the public, including the complainant Ferrera, of the purposes for its executive session.  Likewise, having both sets of principals and athletic directors present during the executive session at the same time, without further explanation, clearly added to the confusion on the part of the complainants.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 28, 1994.

 

                                                                 

                                    Debra L. Rembowski

                                    Clerk of the Commission

 

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 FERRARA

185 South Main Street

Wallingford, CT 06492

 

GEORGE L. BOZZI, JR.

17 Bayberry Drive

Wallingford, CT 06492

 

CHAIRMAN, WALLINGFORD BOARD OF EDUCATION, CHAIRMAN, WALLINGFORD BOARD OF EDUCATION INSTRUCTIONAL COMMITTEE, AND WALLINGFORD BOARD OF EDUCATION

c/o Peter A. Janus, Esq.

Siegel, O'Connor, Schiff & Zangari, P.C.

370 Asylum Street

Hartford, CT 06103

 

                                                                 

                                    Debra L. Rembowski

                                    Clerk of the Commission