FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Peggy Messina,
Complainant
against Docket
#FIC 95-80
Seymour Board of Selectmen,
Respondent December 13, 1995
The above-captioned matter was heard as a contested
case on October 2, 1995, at which time the complainant and the respondent
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
respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter
of complaint dated March 24, 1995 and filed with the Commission on March 27,
1995, the complainant, through counsel, appealed to the Commission alleging
that the respondent violated the Freedom of Information Act by:
a.
convening in executive session on March 7, 1995 for the purpose of
developing a response to grievances filed by the complainant in violation of
1-18a(e) and 1-21(a), G.S.;
b.
denying the complainant's request to discuss the grievances in open
session at the March 7, 1995 meeting in violation of 1-18a(e)(1) and
1-21(a), G.S.; and
c.
failing to vote on the grievances in open session on March 7, 1995, to
reduce its votes to writing, to make its votes available for public inspection
within forty-eight hours and to record its votes in its March 7, 1995 meeting
minutes.
Docket #FIC 95-80 Page
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3. The
complainant requested the imposition of civil penalties for the alleged
violations as set forth in paragraph 2, above, and that the action of the
respondent denying the complainant's grievances be declared null and void.
4. It is
found that the complainant was an employee of the Town of Seymour who lost her
position in the town's finance department.
5. It is
found that the complainant filed three grievances with the respondent on
January 24, 1995 seeking reinstatement and backpay (hereinafter
"grievances").
6. It is
found that the respondent held a regular meeting on March 7, 1995, during which
it went into executive session with labor counsel present, for the purpose of
developing a response to "step two of the grievance (hereinafter
"executive session")."
7. It is found
that, prior to the respondent convening in executive session, the complainant's
collective bargaining representative informed the respondent that the
complainant wished to have her grievances heard in open session.
8. It is
found that at its March 7, 1995 meeting, the respondent held a hearing on the
complainant's grievances in open session prior to convening in executive
session.
9. It is
found that following the executive session, the respondent informed the
complainant that she would be notified of the respondent's decision regarding
the grievances.
10. It is
found that it was decided in executive session to deny the complainant's
grievance and the complainant was so informed by letter dated March 8, 1995.
11. The
respondent contends that the executive session in question was permissible
under 1-18a(e)(2), G.S.
12. The
respondent further contends that it did not violate 1-21(a), G.S.,
because, even though a decision was made in executive session, no votes were
taken.
13.
1-18a(e)(2), G.S., states in pertinent part:
"'Executive sessions' means a meeting of a
public agency at which the public is excluded for . . . (2) 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 ...."
Docket #FIC 95-80 Page
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14.
1-18a(g), G.S., states in pertinent part:
"Pending claim" means a written notice to
an agency which sets forth a demand for legal relief or which asserts a legal
right stating the intention to institute an action in an appropriate forum if
such relief or right is not granted by the agency;"
15. It is
found that because the grievances in question set forth a claim for
reinstatement and backpay, they are pending claims as defined in 1-18(a)g,
G.S.
16. It is
found that the grievances in question are subject to the grievance procedure as
set forth in Article XI, section 11.1 of the Areement between The Town of
Seymour and Local 1303-240 of Council 4 AFSCME, AFL-CIO
("Agreement").
17. It is
found that the Agreement, in material part, calls for a three-step process for
the filing of a grievance:
a. In step
one, a grievance is filed with the chief executive officer of the Town of
Seymour (i.e., the first selectman) who reviews the grievance with the head of
the appropriate department and together they decide the appropriate
action. At step one, the first
selectman and department head are to "make an effort to resolve the
grievance."
b. In step
two, the grievance may be appealed to the respondent, which sits as an
adjudicative body, considers the grievance and renders a written answer.
c. In step
three, there is a right to appeal from the decision of the respondent to the
State Board of Mediation and Arbitration for arbitration.
18. It is
found that the respondent (including the first selectman as one member of the
respondent) was not a party to the grievances, within the meaning of
1-18a(e)(2), G.S., but rather it was the first selectman, in his capacity
as the town's chief executive officer, and the head of the town's finance
department who, along with the complainant, were the parties to the grievances.
19. It is
also found that neither "strategy" nor "negotiations" was
the reason for the executive session in question, rather the reason for the
executive session was so that the respondent could deliberate its
quasi-judicial decision on the merits of those grievances.
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20.
Consequently, it is concluded that the respondent failed to prove that
1-18a(e)(2), G.S., was an applicable purpose for the executive session in
question.
21. It is
therefore further concluded that the respondent violated 1-18a(e) and
1-21(a), G.S., by convening in executive session for an improper purpose at its
March 7, 1995 meeting.
22. It is
also concluded that the respondents violated 1-21(a), G.S., by failing to
vote on the grievances in the public portion of its March 7, 1995 meeting, to
reduce its votes at such meeting to writing, to make such votes available for
public inspection within forty-eight hours and to record its votes in its March
7, 1995 meeting minutes.
23. In
addition, it is found that the respondent's violations 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. The
respondent shall henceforth comply with the provisions of
1-18(a)(e)and 1-21(a), G.S.
2. The
Commission, in its discretion, declines to impose a civil penalty.
Approved by Order of the
Freedom of Information Commission at its regular meeting of December 13, 1995.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-80 Page
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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:
Peggy Messina
c/o Carolyn W. Kone, Esq.
Fabiani & Kone, P.C.
714 State Street
New Haven, CT 06511
Seymour Board of Selectmen
c/o Colleen D. Fries, Esq.
Town Counsel
Bai, Pollock & Dunnigan,
P.C.
Bridgeport, CT 06604
Elizabeth A. Leifert
Acting Clerk of the
Commission