The above-captioned matter was heard as a contested case on January 15, 1997, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of § 1-18a(a), G.S.

        2. By letter dated November 6, 1997, and filed with the Commission on November 10, 1997, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information Act by "holding an illegal executive session on Oct. 29, 1997".

        3. Section 1-21(a), G.S., states in pertinent part:

The meetings of all public agencies, except executive sessions as defined in subsection (6) of section 1-18a, shall be open to the public.

        4. Section 1-18a(6), G.S., defines permitted "executive sessions" in pertinent part as:

a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) 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…. [emphasis added]

        5. The complainants contend that the executive session held at the October 29, 1997 meeting of the respondent Board (sometimes herein "the October 29, 1997 meeting") was for the purpose of creating the evaluation form for the position of Chief of Police.

        6. Conversely, the respondents contend that the discussion of the evaluation form and the actual evaluation are so inextricably intertwined that the executive session held at the October 29, 1997 meeting was lawful for the discussion of both subjects.

        7. It is found that a series of meetings of the respondent Board before October 29, 1997 had considered the evaluation form, and that, except for rating levels indicated, the form considered at the October 29, 1997 meeting was the same as the form that had been considered at the October 9, 1997 meeting of the respondent Board.

        8. It is found that the agenda for the October 29, 1997 meeting listed as an item to be considered at the executive session "Personnel Evaluation Form-Chief’s Position", and that the form was, in fact, approved for implementation at the October 29, 1997 meeting.

        9. It is found that the respondent Board was pursuing a schedule and method of informing the Chief of Police ("the Chief") in October 1997 concerning the criteria and form that would be used for the evaluation of his performance during the upcoming year, with a view toward the completion of the form by members of the respondent Board in November 1998.

        10. It is also found, however, that, while reviewing each category of performance with the Chief, the respondent Board included express discussion of areas where the Chief had been performing well and other areas where he could improve his past performance. This aspect of the discussion held with reference to the various criteria on the form expressed opinions about the Chief’s past performance and constituted an evaluation of his performance.

        11. Accordingly, it is concluded that the executive session held at the October 29, 1997 meeting was conducted lawfully, pursuant to the provisions of § 1-18a(6), G.S., and that there was no 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. The complaint is hereby dismissed.

        2. Because the complainants (unless so informed by a member of the respondent Board) would have no appropriate means to know even the general nature of the discussion during the executive session at the October 29, 1997 meeting, their decision to bring the present complaint was reasonable. Only the testimony under oath of the respondent Chairman at the Commission’s hearing provided the complainants with the best relevant evidence, which evidence leads the Commission to conclude that the executive session was lawful.

        Approved by Order of the Freedom of Information Commission at its regular meeting of March 11, 1998.

_________________________
Doris V. Luetjen
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:
Joe Wojtas and The Day
P.O. Box 1231
New London, CT 06320-1231

Chairman, Board of Police Commissioners, Town of Stonington; and Board of Police Commissioners, Town of Stonington
c/o Atty. Thomas J. Londregan
Conway & Londregan
38 Huntington Street
P.O. Box 1351
New London, CT 06320-1351

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-358/FD/tcg/03131998