FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Virginia M. Wickersham,
Complainant
against Docket #FIC 94-43
Bolton Board of Education,
Respondent February 2, 1995
The above-captioned matter was heard as a contested case on June 9, 1994, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Immediately following the hearing, the respondent submitted to the Commission for in camera inspection a copy of the document described in paragraphs 13 and 14 of the findings, below.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed February 14, 1994 and postmarked February 11, 1994, the complainant appealed to the Commission, alleging that the respondent met improperly in executive session on January 13, January 27 and February 10, 1994.
3. It is found that the respondent met and convened in executive session on January 13, January 27 and February 10, 1994.
4. It is found that the agenda for the each of the meetings provided for "Executive Session - Attorney/Client Privilege (Documents)."
5. It is also found that the stated purpose for the executive sessions was "discussion of attorney/client privileged documents."
6. It is found that the respondent, in addition to being the beneficiary of a certain trust that created a scholarship administered by the respondent, also has a contingent beneficial interest in another portion of the trust.
Docket #FIC 94-43 Page 2
7. It is found that another beneficiary under the trust (an heir to the creator of the trust) is seeking dissolution by the Superior Court of a portion of the trust, distribution of that trust principal to her, and asking the respondent to abandon its own contingent interest in the same trust principal.
8. It is found that the respondent's attorney had filed an appearance in Superior Court on behalf of the respondent in connection with the application to dissolve the trust.
9. It is found that discussion at each of the three executive sessions concerned what actions, if any, the respondent would take in response to the request that it abandon its contingent beneficial interest and not oppose an application to dissolve the trust.
10. It is found that the respondent's superintendent expected there to be discussion of attorney/client privileged documents at the January 13, 1994 meeting, but that no such documents were in fact produced by the respondent's attorney at that meeting.
11. It is found that the actual purpose of the January 13, 1994 executive session was to permit the board's attorney to speak to the board confidentially concerning the trust situation, and advise the board as to the options that were available to it in response to the pending application in Superior Court to dissolve the trust.
12. It is therefore concluded that the respondent violated 1-21(a) and 1-18a(e), G.S., by failing to state the proper purpose for the January 13, 1994 executive session.
13. It is also concluded, however, that the discussion in the January 13, 1994 executive session constituted strategy with respect to pending litigation within the meaning of 1-18a(e)(2), G.S.
14. It is found that a dispute arose among the members of the respondent at the January 13 meeting about the propriety of the executive session, and that the superintendent subsequently requested a legal opinion from the board's attorney about that issue.
15. It is found that the board next met on January 27, 1994, at which time the attorney's opinion was circulated among the board members in executive session.
16. It is found that the actual purpose of the January 27, 1994 executive session was to permit the trustee to meet with the respondent and discuss the settlor's intent under the trust,
Docket #FIC 94-43 Page 3
and seek an agreement from the respondent that it would abandon its contingent interest.
17. It is therefore concluded that the respondent violated 1-21(a) and 1-18a(e), G.S., by failing to state the proper purpose for the January 13, 1994 executive session.
18. The respondent maintains that the January 27, 1994 executive session was proper as a discussion of legal advice privileged by the attorney-client relationship.
19. Section 1-18a(e)(5) permits an executive session to discuss "any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19."
20. In turn, Section 1-19(b)(10) permits an agency to keep confidenial "communications privileged by the attorney-client relationship."
21. The respondent maintains that the communication was privileged because the superintendent sought legal advice, and the superintendent and the respondent's counsel understood that that advice was to remain confidential.
22. It is found, however, that neither the superintendent nor any member of the respondent communicated anything confidential to the attorney.
23. It is also found that the document examined in camera discloses no confidential facts.
24. It is therefore concluded that the attorney's opinion was not privileged.
25. It is further concluded that the respondent violated 1-18a(e)(5) and 1-19(b)(10), G.S., with respect to any portion of executive session at which the attorney's opinion was discussed.
26. It is found that most of the January 27, 1994 executive session consisted of the trustee's presentation to the board, and the board's consideration of her request concerning the pending application to dissolve the trust and the respondent's position in response to that application.
27. It is concluded that the portion of the January 27, 1994 executive session described in paragraph 25, above, constituted negotiation with respect to pending litigation within the meaning of 1-18a(e)(2), G.S.
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28. The board next met on February 10, 1994 and convened in executive session for the stated purpose of "attorney/client documents and negotiation strategy."
29. It is found that the actual purpose of the February 10, 1994 executive session was for the board to discuss its legal options in response to the pending application to dissolve the trust.
30. It is therefore concluded that the respondent violated 1-21(a) and 1-18a(e), G.S., by failing to state the proper purpose for the February 10, 1994 executive session.
31. It is also concluded, however, that the respondent's discussion with its attorney of its options with regard to the pending application to dissolve the trust constituted strategy and negotiation with respect to pending litigation within the meaning of 1-18a(e)(3), G.S.
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 requirements of 1-18a(e) and 1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 25, 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:
VIRGINIA M. WICKERSHAM
4 Dimock Lane
Bolton, CT 06043
BOLTON BOARD OF EDUCATION
c/o Richard A. Mills, Jr., Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819
Debra L. Rembowski
Clerk of the Commission