Freedom of Information Commission

of the State of Connecticut

In the Matter of a Complaint by Final Decision

Joan Coe,

Complainant

against Docket #FIC 1995-371

Carl D. Eisenman, Chairman,

Simsbury Police Commission,

Respondent September 11, 1996

The above-captioned matter was heard as a contested case on May 29, 1996, 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 October 19, 1995, and filed with the Commission on October 23, 1995, the complainant alleged that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by permitting non-agency members to attend an executive session of the Simsbury Police Commission (hereinafter “SPC”). In addition, the complainant requested the imposition of civil penalties against the respondent.

3. It is found that on October 18, 1995, the SPC held a special meeting and voted to convene in executive session to discuss its defense strategy with respect to a lawsuit pending in federal court against the SPC, its individual members, several law enforcement officers and other officials of the town of Simsbury, Gary Mihalick v. Town of Simsbury, et al, case number 395CV01822 (hereinafter “lawsuit”).

4. It is found that the SPC invited all defendants named in the lawsuit to attend the subject executive session to offer their testimony and opinion concerning a collective defense strategy.

5. It is further found that at the request of Carolyn Clement, former SPC member and a named defendant in the lawsuit, the SPC invited her husband and personal lawyer, Paul Gilmore, to attend the executive session.

6. The complainant does not contest the validity of the executive session in question, but specifically alleges that the respondent violated §1-21g(a), G.S., by permitting Mr. Gilmore to attend the session.

7. Section 1-18a(e)(2), G.S., permits an agency to convene in executive session to discuss strategy with respect to pending litigation.

8. Section 1-21g(a), G.S., provides, in pertinent part:

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body …”

9. It is found that the SPC invited Mr. Gilmore to attend the executive session in his capacity as counsel to Ms. Clement, so that he might present testimony or opinion with respect to the defendants’ collective strategy in the lawsuit.

10. Under the facts and circumstances of this case, it is concluded that the respondent did not violate §1-21g(a), G.S., by allowing Mr. Gilmore to attend the subject executive session.

11. At the hearing on this matter, the respondent requested the imposition of civil penalties against the complainant for the filing of a frivolous appeal pursuant to §1-21i(b)(2), G.S.

12. It is found that the complainant’s appeal was not filed frivolously, without reasonable grounds and solely for the purpose of harassing the respondent. Accordingly, the respondent’s request described in paragraph 11, above, is denied.

13. In her post-hearing brief, the complainant requested the imposition of civil penalties against Mr. Gilmore and the respondent’s attorney.

14. It is found, however, that the Commission lacks jurisdiction to consider the imposition of civil penalties against Mr. Gilmore and the respondent’s attorney, who are neither parties to this appeal, nor public agencies. Accordingly, the complainant’s request is denied.

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

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 1996.

__________________________

Elizabeth A. Leifert

Acting 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:

Joan Coe

26 Whitcomb Drive

Simsbury, CT 06070

Carl D. Eisenman, Chairman, Simsbury Police Commission

c/o William K. Eisenman, Esq.

Witherspoon Law Office

Farmington Commons

790 Farmington Avenue

Farmington, CT 06032

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission