FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Marc S. Ryan and Waterbury Republican-American,

Complainants

against Docket #FIC 94-23

Waterbury Board of Education's Committee on Grievances,

Respondent January 19, 1995

The above-captioned matter was heard as a contested case on August 29, 1994, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing, the Waterbury Teachers Association's request to intervene as a party was granted.

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

1. The respondent committee on grievances (the "committee") is a public agency within the meaning of 1-18a(a), G.S.

2. By letter of complaint filed January 28, 1994, the complainants appealed to the Commission, alleging that the respondent committee conducted hearings on December 15, 1993 and January 26, 1994, without notice and without giving the complainants an opportunity to attend.

3. It is found that the respondent committee held hearings on two teacher's grievances on December 15, 1993, and a hearing on an administrator's grievance on January 26, 1994.

4. The respondent committee and the Waterbury Teacher's Association (the "WTA") both maintain that, pursuant to 1-21i(b), G.S., the Commission lacks jurisdiction to hear the complaint concerning the December 15, 1993 meeting, which occured more than 30 days before the complaint was filed.

5. Section 1-21i(b), G.S., provides in relevant part:

Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, 1-20a and 1-21 to

Docket #FIC 94-23 Page 2

1-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.

6. It is found that the respondent committee neither filed nor published any public notice of the December 15, 1994 grievance hearings.

7. It is found that the complainants learned at the Waterbury Board of Education's December 6, 1993 meeting that the respondent committee might conduct grievance hearings on December 15, 1993.

8. It is also found that the complainants ascertained from a reliable source that the respondent committee intended to hold grievance hearings.

9. It is also found that the complainants subsequently inquired at the clerk's office but no notice of a December 15, 1993 meeting had been filed.

10. It is also found that the complainants heard rumors between December 15 and December 19, 1993 that the respondent committee had conducted an unnoticed or secret grievance hearing.

11. It is also found that the complainants, after making reasonable inquiry, did not actually ascertain that the December 15, 1993 grievance hearings had occurred until the Board of Education's December 29, 1993 meeting.

12. It is therefore found that the complainants did not have notice in fact of the December 15, 1993 grievance hearings until December 29, 1993.

13. It is therefore concluded that the Commission has jurisdiction to hear the complaint regarding the December 15, 1993 grievance hearings.

14. It is found that the respondent committee did not file notices of its December 15, 1993 and January 26, 1994 grievance hearings.

15. It is found that the December 15, 1993 and January 26, 1994 grievance hearings were not open to the public.

16. The Commission takes administrative notice of its record and final decision in docket #FIC 92-175, Marc S. Ryan, James B. Craig and Waterbury Republican-American against

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Waterbury Board of Education Committee on Grievances, in which the Commission concluded that grievance hearings like the ones at issue in this case were public meetings within the meaning of 1-18a(b), G.S.

17. It is found that the December 15, 1993 and January 26, 1994 grievance hearings were not materially different from the grievance hearings that were the subject of docket #FIC 92-175, and that the underlying facts necessary for a decision in this case are not materially different from the underlying facts in docket #FIC 92-175.

18. The respondents maintain, however, that the case law interpreting 1-18a(b), G.S., has changed since the Commission issued its final decision in docket #FIC 92-175, and urges the Commission to reach a different result in this case.

19. Section 1-18a(b), G.S., provides in relevant part: "'Meeting' shall not include: ... strategy or negotiations with respect to collective bargaining ...."

20. Specifically, the respondents argue that Glastonbury Education Association v. FOIC, 35 Conn. App. 11 (1994) and Town of Fairfield v. IAFF, Local 1426, 6 CSCR 800 (August 1, 1994) together stand for the proposition that grievance hearings between a municipal employer and a union are part of the ongoing collective bargaining process and are not therefore "meetings" within the meaning of 1-18a(b), G.S.

21. The complainants in turn argue that the Commission should be guided by the Appellate Court's recent decision in Bloomfield Education Association v. Frahm, 35 Conn. App. 384 (1994), which the complainants maintain is consistent with the Commission's decision in docket #FIC 92-175.

22. The Commission takes administrative notice of the fact that docket #FIC 92-175 was appealed to the Superior Court, Judicial District of Hartford-New Britain at Hartford and is pending as Waterbury Teachers Association vs. FOIC, docket no. CV93-0704266-S.

23. The Commission also takes administrative notice of the fact that although the plaintiff's motion for a stay was denied in Waterbury Teachers Association vs. FOIC, the case has not yet been heard on the merits and no decision has been issued by the court.

24. It is concluded that it is premature for the Commission essentially to reconsider its decision in docket #FIC 92-175, since that case awaits a decision in the Superior Court.

25. It is therefore concluded that the respondent committee violated 1-21(a), G.S., by failing to file notices of

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the December 15, 1993 and January 26, 1994 grievance hearings, and by failing to open those hearings to the public.

26. The Commission in its discretion declines to impose a civil penalty against the respondent committee.

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

1. Henceforth the respondent committee shall strictly comply with the requirements of 1-18a(b) and 1-21(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 11, 1995.

Debra L. Rembowski

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:

MARC S. RYAN AND WATERBURY REPUBLICAN-AMERICAN

c/o Pamela D. Siemon, Esq. and Thomas G. Parisot, Esq.

Secor, Cassidy & McPartland

41 Church Street

P.O. Box 2818

Waterbury, CT 06723-2818

WATERBURY BOARD OF EDUCATION'S COMMITTEE ON GRIEVANCES

c/o Athan Mihalakos, Esq.

Corporation Counsel's Office

City of Waterbury

236 Grand Street

Waterbury, CT 06702

WATERBURY TEACHERS ASSOCIATION

c/o William J. Dolan, Esq.

CEA, Suite 500

21 Oak Street

Hartford, CT 06106

Debra L. Rembowski

Clerk of the Commission