FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by |
FINAL DECISION |
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John Reilly and The Hour Newspapers, |
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Complainant |
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against |
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Docket #FIC 1999-594 |
Board
of Education, |
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Respondents |
May 24, 2000 |
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The above-captioned matter was heard as a contested
case on February 14, 2000, at which time the complainants and the respondent
appeared and presented testimony, exhibits and argument on the complaint.
Mayor F. Esposito and the City of Norwalk were granted intervenor
status.
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 §1-200(1),
G.S. [formerly §1-18a(1),
G.S.].
2.
It is found that on
December 4, 1999, four members of the respondent board, two former members of
the respondent board, and the Mayor of the City of Norwalk met concerning a
dispute over the conduct of the school superintendent (hereinafter “the
December meeting”).
3.
It is found that the
December meeting was not open to the public and that one of the complainants’
reporters was twice ejected from the meeting.
4.
By letter dated
December 11, 1999 and filed on December 14, 1999, the complainants appealed to
the Commission alleging that the respondent violated the Freedom of
Information (“FOI”) Act by improperly entering into executive session at
its December meeting.
5.
At
the hearing on this matter, the respondent argued that the mayor is only an
ex-officio member of the respondent board and is not counted in determining
whether a quorum was present because a quorum must consist of elected members.
The respondent further argued that because the mayor is not counted, no
quorum of respondent board was present at the December meeting, and that the
December meeting was not a meeting of the respondent board, but an
administrative meeting of the mayor.
6.
Section 1-200(2), G.S.
[formerly §1-18a(2), G.S.], provides in relevant part that:
“[m]eeting
means any hearing or other proceeding of a public agency, any convening or
assembly of a quorum of a multimember public agency, and any communication by
or to a quorum of a multimember public agency, whether in person or by means
of electronic equipment, to discuss or act upon a matter over which the public
agency has supervision, control, jurisdiction or advisory power.”
7.
It is found that
pursuant to the code of the City of Norwalk, §1-516, the mayor is ex-officio
chairman of the respondent board and is authorized to preside at all meetings
of the respondent board.
8.
It is also found that
the bylaws of the respondent board provide that five members of the respondent
board shall constitute a quorum for the transaction of business and makes no
distinction between elected members and non-elected members.
9.
It is found that the
mayor, as ex-officio chairman of the respondent board, only votes in order to
break a tie and has rarely called and/or chaired a meeting of the respondent
board.
10.
It is found that the
mayor called for the December meeting via written invitation on his office
letterhead.
11.
Notwithstanding the
findings in paragraphs 9 and 10, above, it is found that a quorum of the
respondent board was present at the December meeting and that the respondent
board held a meeting within the meaning of §1-200(2), G.S. [formerly
§1-18a(2), G.S.].
12.
With respect to the
complainant’s allegation that the respondent improperly entered into
executive session, §1-200(5), G.S. [formerly §1-18a(5), G.S.], provides in
relevant part that “executive sessions means a meeting of a public agency at
which the public is excluded for .
. . [d]iscussion concerning the appointment, employment, performance,
evaluation, health or dismissal of a public officer or employee . . . .”
13.
Further, §1-225(a),
G.S. [formerly §1-21(a), G.S.], provides in relevant part that “[a] public
agency may hold an executive session .
. . 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 . . . .”
14.
It
is found that the respondent board, in effect, held an executive session
within the meaning §1-200(5), G.S. [formerly §1-18a(5), G.S.].
15.
It is also found,
however, that the respondent board did not vote to convene in executive
session in public at its December meeting prior to entering into executive
session, nor was the reason for the such executive session stated in open
session.
16.
It is therefore
concluded that the respondent board violated the executive session provisions
found in §1-225(a), G.S. [formerly §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. Upon receipt of this final decision, the respondent board shall cause a copy of the same to be posted for a period of thirty days in a public place in both its office and the office of the Town Clerk.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 24, 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:
John Reilly and The Hour Newspapers
346 Main Avenue
Norwalk, CT 06851
Board of Education, Norwalk Public Schools
c/o Atty. Thomas Sullivan
Sullivan, Schoen, Campane & Connon, LLC
646 Prospect Avenue
Hartford, CT 06105-4286
Mayor F. Esposito
c/o Atty. M. Jeffry Spahr
Deputy Corporation Counsel
PO Box 798, 125 East Avenue
Norwalk, CT 06856-0798
City of Norwalk
c/o Atty. M. Jeffry Spahr
Deputy Corporation Counsel
PO Box 798, 125 East Avenue
Norwalk, CT 06856-0798
__________________________
Melanie R. Balfour
Acting Clerk of
the Commission
FIC1999-594FD/mrb/05/25/00