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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Richard A. Labas, |
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Complainants |
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against
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Docket
#FIC 1999-603 |
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Superintendent of Schools, East Hampton Public |
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Respondents |
February
23, 2000 |
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The above-captioned matter was heard as a contested case on February 8,
2000, at which time the complainant and the respondents appeared and presented
testimony, exhibits and argument on the complaint. At the hearing, the East
Hampton Education Association was granted party status, and the caption above
has been accordingly amended.
After consideration of the entire record, the following facts are found
and conclusions of law are reached:
1. By letter dated December 1, 1999, the complainant requested that the respondent Superintendent of Schools allow him to inspect and receive copies of “the last and best offers of the Board of Education and the last and best offer of the East Hampton Administrators Association and the last and best offer of the East Hampton Education Association” (the “requested records”).
2. By letter dated and filed with the Commission on December 17, 1999, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information Act (“FOIA”) by failing to allow inspection and provide copies of the requested records, and also by conducting “a closed or secret meeting” which arrived at a “consensus” of the respondent Board of Education that, in effect, constituted a vote taken in executive session.
3. Section 1-210(b)(9), G.S., exempts from mandatory disclosure: “records, reports and statements of strategy or negotiations with respect to collective bargaining”. Section 1-200(2), G.S., contains parallel language for meetings, stating: “’Meeting’ shall not include…strategy or negotiations with respect to collective bargaining”. Moreover, §1-200(6), G.S., authorizes executive sessions for the purpose of “discussion of any matter which would result in the disclosure of public records or the information contained therein described in” the provisions exempting certain records from mandatory public disclosure.
4. The Connecticut Supreme Court has considered the applicability of the FOIA to compulsory arbitration proceedings pursuant to the Teacher Negotiation Act in Glastonbury Education Association v. FOIC, 234 Conn. 704 (1995), indicating that “executive sessions for discussion and argument about the contents of the parties’ last best offers” are permitted. Id. at p. 718. See also Waterbury Teachers Association v. FOIC, 240 Conn. 835 (1997). Moreover, the Commission has a long history of recognizing that proposals or offers in the arbitration process are exempt from disclosure. Radford v. Town of Trumbell, Docket #FIC 79-246, cited with approval by the Appellate Court in Bloomfield Education Association v. Frahm, 35 Conn. App. 384, 388; McHale v. Superintendent of Schools, Watertown Public Schools, Docket #FIC 94-390.
5. It is found that minutes were kept of the November 8, 1999
executive session of the respondent Board of Education, which report on the
status of the negotiation until November 8, 1999 and set forth a going forward
strategy for the respondent Board. It is also found that the minutes
constitute records within the scope of the request detailed at paragraph 1,
above, and that the respondents declined to furnish such requested records to
the complainant following his request also detailed at paragraph 1, above.
6. It is found that, by the time of the November 8, 1999 meeting
of the respondent Board of Education, the process of forming contracts for
educators had reached the stage of arbitration pursuant to the Teacher
Negotiation Act. This mediated
arbitration process is designed to encourage each party to formulate detailed
proposals, to narrow the differences between parties, and to find agreement
where possible. However, the arbitrator makes the award after the parties have
been unable to agree to a complete contract. Accordingly, there was no final
contract before the respondent Board of Education on November 8, 1999
concerning which the respondent Board of Education could take formal action.
7. It is further found that the executive session at the November 8, 1999 meeting of the respondent Board of Education involved an exchange of views between the full Board and its Personnel Committee, which constituted its negotiating team. The Personnel Committee informed the Board of the status of the arbitration negotiations, and each Board member was allowed to give his opinions and recommendations concerning the strategy that the Board of Education should pursue. It is found that, while some consensus of views was apparent based upon the comments of members presented serially (consensus being a result encouraged by the mediated arbitration process), there was no vote or polling of the respondent Board of Education at the executive session on November 8, 1999.
8. It is concluded that, because the requested records report on the status of the negotiation until November 8, 1999 and set forth a going forward strategy for the respondent Board, the requested records described at paragraphs 1 and 5, above, are records of both strategy and negotiation with respect to collective bargaining, as those terms are used in §1-210(b)(9), G.S. Therefore, the requested records are exempt from mandatory disclosure pursuant to §1-210(a), G.S.
9. It is also concluded that the executive session at November 8, 1999 meeting of the respondent Board of Education was a discussion of “strategy… with respect to collective bargaining” as that term is used in §1-200(2), G.S., and therefore was not a “meeting” subject to the FOIA. Accordingly, this discussion was entirely exempt from all openness requirements of §1-225, G.S. (including the recording of votes).
10. Moreover, because the executive session involved discussion of matters which would have resulted in the disclosure of information contained in records that were exempt from mandatory public disclosure (the requested records discussed at paragraphs 1, 5 and 8, above), it is concluded that the executive session was held for a lawful purpose pursuant to §1-200(6), G.S.
11. It is finally concluded that, based upon the record in this
matter, the respondents did not violate any provisions of the FOIA.
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.
The Commission believes that the
complainant’s position contravenes well established law, and that he is
raising a policy position which would be more appropriately presented to the
General Assembly.
Approved by Order of the Freedom of Information Commission at its regular meeting of
February 23, 2000.
_________________________
Melanie R. Balfour
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:
Richard
A. Labas
63 Barton Hill Street
East Hampton, CT 06424
Superintendent of Schools, East Hampton Public Schools; Peter Strickland, Chairman, Board of Education, East Hampton Public Schools; Carl Sundell; Raymond P. Krupa; Christopher J. Goff; Thomas Donnelly; Donald Coolican; Greg Pugatch; Richard Trojanoski; Karen Hitchcock, as members, Board of Education, East Hampton Public Schools; Board of Education, East Hampton Public Schools; and East Hampton Education Association
c/o Atty. Victor Schoen
Sullivan, Schoen, Campane and Connon, LLC
646 Prospect Avenue
Hartford, CT 06105-4286
and
c/o Atty. William J. Dolan
21 Oak Street, Suite 500
Hartford, CT 06106
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-603FD/mrb/02/29/00