FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Robert W. Tkacz,

Complainant(s)

against Docket #FIC1996-058

Board of Education, Town of Enfield

and Town Council, Town of Enfield,

Respondent(s) November 20, 1996

The above-captioned matter was heard as a contested case on, June 25, 1996, at which time the complainant and respondent board of education (“board”) appeared and presented testimony, exhibits and argument on the complaint. The respondent town council (“council”) failed to appear.

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 filed with the Commission on February 23, 1996, the complainant alleged that the respondents illegally called and convened an executive session to discuss an Early Retirement Incentive Package (“ERIP”) for the town’s teachers.

3. It is found that on February 5, 1996 (“February meeting”), the respondent town council (“council”) held a special meeting to which the respondent board of education (“board”) was invited.

4. It is found that the agenda for the respondent council’s February meeting listed: “Personnel Matters, Collective Bargaining, Pending Litigation [and] Real Estate Negotiations” as the four items for which an executive session was planned.

5. Section 1-21(a), G.S., states in relevant part that:

[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.

6. It is found, however, that the respondent council’s agenda and minutes for its February meeting failed to adequately or meaningfully provide the public with notice and a record of the nature of the personnel, collective bargaining, pending litigation, or real estate business that was conducted at that meeting as required by §1-21(a), G.S.

7. It is therefore concluded that the respondent council violated the relevant provisions of §1-21(a), G.S., when it failed to adequately state the purpose of the executive session held during the February meeting.

8. Section 1-18a(e), G.S., provides that an executive session may be convened to discuss the:

(1) … 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; (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
until such litigation or claim has been finally adjudicated or otherwise settled;
(3) matters concerning security strategy or the deployment of security personnel,
or devices affecting public security; (4) discussion of the selection of a site or
the lease, sale or purchase of real estate by a political subdivision of the state
when publicity regarding such site, lease, sale, purchase or construction would
cause a likelihood of increased price until such time as all of the property has
been acquired or all proceedings or transactions concerning same have been
terminated or abandoned; 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.

9. It is found that with the exception of collective bargaining, those topics listed on the respondent council’s February meeting agenda, constituted permissible purposes for an executive session pursuant to §1-18a(e), G.S.

10. It is also found that collective bargaining is not listed among the permissible subjects for an executive session under §§1-18a(e) and 1-21(a), G.S.

11. Section 1-18a(b), G.S., provides that “[m]eeting shall not include … strategy or negotiations with respect to collective bargaining ….”

12. The respondent board contends that the existing draft is a record or report “with respect to collective bargaining” under §1-19(b)(9), G.S., and therefore discussion of the ERIP and the existing draft were permitted under §1-18a(e)(5), G.S.

13. Section 1-18a(e)(5), G.S., provides that an executive session may be convened 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.”

14. Section 1-19(b)(9), G.S., in turn, provides that disclosure is not required for “records, reports and statements of strategy or negotiations with respect to collective bargaining.”

15. It is found that the respondent council convened the February executive session at approximately 6:08 p.m., and at approximately 7:05 p.m. a quorum of the respondent board was invited into the council’s executive session, and that a quorum of the respondent board only attended and participated in that portion of the respondent council’s executive session discussions concerning the ERIP and an existing ERIP document from the preceding year (“existing draft”), which had gone into effect May 22, 1995.

16. It is also found that the respondent board had offered an ERIP to the town’s eligible teachers for the first time during budget deliberations the preceding year as a cost saving measure.

17. It is further found that the respondent council and board members met in executive session at the February meeting to again discuss how the ERIP, and specifically how the existing draft that had been used the year before, could become the basis for a new ERIP offering to the teachers’ union as a way of cutting costs in the upcoming budget year.

18. It is also found, however, that at the executive session held as part of the respondent council’s February meeting, the respondent’s discussed strategy with respect to collective bargaining, within the meaning of §1-18a(b), G.S.

19. It is therefore concluded that the respondents violated §§1-18a(e) and 1-21(a), G.S., by not permissibly convening in executive session at the February meeting to discuss strategy with respect to collective bargaining.

20. It is also concluded that because strategy with respect to collective bargaining is not deemed to constitute a meeting under §1-18a(b), G.S., discussion of the ERIP draft in this case does not constitute discussion of records or reports with respect to collective bargaining for purposes of invoking the §1-18a(e)(5), G.S., reason for convening an executive session.

21. It is therefore concluded that the complainant was wrongfully denied his right to attend those portions of the February meeting improperly held in executive session, in violation of §1-21(a), 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 respondents shall strictly comply with the executive session and open meeting requirements set forth in §§1-18a(e) and 1-21, G.S.

Approved by Order of the Freedom of Information Commission at its special meeting of November 20, 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:

Robert W. Tkacz

1300 Enfield Street

Enfield, CT 06082

Board of Education, Town of Enfield

c/o Kevin M. McGlinchey, Esq.

Shipman & Goodwin

One American Row

Hartford, CT 06103

Town Council, Town of Enfield

820 Enfield Street

Enfield, CT 06082

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

FIC1996-058/FD/eal/120496