FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Lisa Burgess,
Complainant,
against Docket
#FIC 1996-122
Board of Directors, Candlewood Point
Homeowners Tax District,
Respondent November
13, 1996
The above-captioned
matter was heard as a contested case on July 31, 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 April 11, 1996
and filed on April 15, 1996, the complainant appealed to the Commission
alleging that the respondent violated the Freedom of Information (“FOI”) Act in
several respects. Specifically, the
complainant alleged that:
a. with respect to the respondent’s March 21,
1996 meeting, the respondent:
i.
convened in executive session without proper notice and without stating the
purpose;
ii.
failed to take a vote prior to convening in the executive session;
iii.
improperly directed the complainant not to attend the executive session;
iv.
discussed in the executive session, the hiring of a firm to assume the
complainant’s responsibilities as treasurer of the respondent; and that
Docket
#FIC 1996-122 Page
2
b.
the respondent intended to convene in executive session without posting proper
notice of the meeting or giving the complainant proper notice the intended
executive session.
3. It is found that on March 21, 1996 the
respondent held a regular meeting during which it convened in executive session
and discussed a new property manager position for the Candlewood Point
Homeowners Tax District, (hereinafter “district”).
4. Section 1-21(a), G.S., provides 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.”
5. Section 1-18a(e), G.S., provides in relevant
part that: "Executive sessions"
means a meeting of a public agency at which the public is excluded for one or
more of the following purposes:
(1) Discussion concerning the
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.
6. It is found that the minutes of the March
21, 1996 meeting indicate that a motion was made and approved for the
respondent to convene in executive session, but do not state whether such
approval was by a two-thirds vote of those members present and voting.
7.
It is also found that the purpose for the March 21, 1996 executive
session was not publicly stated.
8. With respect to the allegations, described
in paragraphs 2.a.i. and ii., above, it is therefore concluded that the
respondent violated the provisions of §1-21(a),
G.S.
9. With respect to the allegations, described
in paragraphs 2.a.iii. and 2.a.iv., above, it is found that the respondent met
on March 21, 1996 to discuss the property manager position in executive
session.
10. It is also found that the discussion of the
property manager position at the March 21, 1996 executive session, implicated
the complainant’s employment because she serves as the treasurer and the tax
collector for the district, and if a property manager position were created,
the tax collection function would be performed by the property manager.
Docket #FIC 1996-122 Page
3
11. It is therefore, concluded that the
respondent discussed the complainant’s “employment” within the meaning of §1-18a(e)(1),
G.S., during the March 21, 1996 executive session, without giving her
meaningful notice of such executive session so that she could exercise her
right to have the discussion concerning her employment in open session.
12. With respect to the allegation, described in
paragraph 2.b., above, it is found that the respondent held a special meeting
on April 17, 1996, during which it attempted to convene in executive session
but failed to do so because the session was disrupted.
13. It is therefore, concluded that no violation
of §1-21(a),
G.S., occurred at the April 17, 1996 meeting.
14. The parties are in disagreement as to
whether the complainant is a “member” of the respondent. The respondent contends that the complainant
was excluded from the March 21, 1996 executive session, and would have been
excluded from the April 17, 1996 executive session, if it had been held,
because the complainant is not a “member” of the respondent within the meaning
of §7-327(b),
G.S. The complainant contends that she
is a “member” of the respondent.
15. It is found that this Commission has no
jurisdiction to determine whether the complainant is, or is not, a “member” of
the respondent within the meaning of §7-327(b),
G.S., as such provision falls outside the scope of the FOI Act.
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 executive session and open meeting provisions of §§1-18a(e)
and 1-21(a), G.S.
Approved by Order of the Freedom of Information
Commission at its regular meeting of November 13, 1996.
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission
Docket # FIC 1996-122 Page
4
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:
Lisa Burgess
32 Sherry Lane
New Milford, CT 06776
Board of Directors, Candlewood Point Homeowners
Tax District
c/o John
Campbell, President
57 Sherry Lane
New Milford, CT 06776
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission
FIC 1996-122/FD/eal/112296