FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by
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FINAL DECISION
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Warren L. Pitcher, |
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Complainant
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against
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Docket #FIC 1999-561
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First Selectman, Town of Sherman; and
Board of Selectmen, Town of Sherman, |
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Respondents
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June 28, 2000
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The above-captioned matter was
heard as a contested case on February 9, 2000, at which time the complainant
and the respondents appeared, stipulated to certain facts and presented
testimony, exhibits and argument on the complaint. For purposes of hearing, the above-captioned matter was
consolidated with contested case docket #FIC 1999-564, Donna Accosta v.
First Selectman, Town of Sherman; and Board of Selectmen, Town of Sherman
and contested case docket #FIC 1999-574, Frances Murray, Natalie Sirkin and
Thomas Piel v. First Selectman, Town of Sherman; and Second Selectman, Town of
Sherman.
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 §1-200(1),
G.S., [formerly §1-18a(1),
G.S.].
2. By letter dated November 17, 1999 and filed on November 18,
1999, the complainant appealed to the Commission alleging that the respondents
violated the Freedom of Information (“FOI”) Act by:
a.
improperly warning the respondent board’s meeting of November 12,
1999; and
b.
untimely providing access to certain employee records pertaining to
the complainant.
3.
By letter dated and filed with the Commission on December 2, 1999, the
complainant, amended his complaint, by:
a.
withdrawing the complaint with respect to the allegation described
in paragraph 2b, above;
b.
requesting that all actions taken at the November 12, 1999 meeting
be declared null and void; and
c.
requesting that a civil penalty in the amount of $1000 be imposed
upon the respondent first selectman
4.
Consequently, the issues before the Commission are those as described
in paragraphs 2a, 3b, and 3c, above.
5.
With respect to the allegation described in paragraph 2a, above, it is
found that the respondent board held a special meeting on November 12, 1999,
and at that time terminated the employment of the complainant (hereinafter “
special meeting”).
6.
Section 1-225(a), G.S. [formerly §1-21(a), G.S.] provides, in relevant
part:
"Notice of each
special meeting of every public agency … shall be given not less than
twenty-four hours prior to the time of such meeting by filing a notice of the
time and place thereof … in the office of the clerk of such subdivision for
any public agency of a political subdivision of the state ….
The secretary or clerk shall cause any notice received under this
section to be posted in his office. Such
notice shall be given not less than twenty-four hours prior to the time of the
special meeting… The notice shall specify the time and place of the
special meeting and the business to be transacted.
No other business shall be considered at such meetings by such public
agency." [Emphasis
added.]
7.
It is found that the notice of the special meeting indicates the
following with respect to the business to be transacted:
To review
correspondence for discussion and possible action.
1.
Grant Request- dated deadline
2.
Correspondence related to personnel
8.
It is found that the notice as described in paragraph 7, above, did not
specify the business to be transacted with respect to the termination issue,
within the meaning of §1-225(a), G.S. [formerly §1-21(a), G.S.].
9.
Further, it is found that the termination issue arose after the
notice of the meeting had been filed on November 10, 1999, and accordingly,
such issue constitutes “other business” precluded from being addressed at
the meeting, within the meaning of §1-225(a), G.S. [formerly §1-21(a), G.S.].
10. It is found that members of the community, who would have
attended the meeting had they had notice that the termination issue would be
addressed, were caught by surprise when they became aware that the decision to
terminate had been made at the meeting.
11.
It is concluded that the respondent board violated §1-225, G.S.
[formerly §1-21-(a), G.S.] when it failed to specify on the notice of the
special meeting the business to be transacted.
12. With respect to the requests for remedies described in
paragraph 3b and 3c, above, §1-206(b)(2), G.S. [formerly §1-21i(b)(2), G.S.]
provides, in relevant part:
"The
commission may declare null and void any action taken at any meeting which
a person was denied the right to attend and may require the production or
copying of any public record. In
addition, upon the finding that a denial of any right created by the
Freedom of Information Act was without reasonable grounds and after the
custodian or other official directly responsible for the denial has been
given an opportunity to be heard at a hearing conducted in accordance with
sections 4-176e to 4-184, inclusive, the commission may, in its
discretion, impose against the custodian or other official a civil penalty
of not less than twenty dollars nor more than one thousand dollars."
13.
It is found that interested members of the community were denied the
right to proper notification that the termination issue would be addressed at
the special meeting of November 12, 1999, and therefore, denied the right to
attend such meeting, within the meaning of §1-206(b)(2), G.S. [formerly
§1-21i(b)(2), G.S.].
14.
Further, it is found that the denial of the right to attend the meeting
was without reasonable grounds, within the meaning of §1-206(b)(2), G.S.
[formerly §1-21i(b)(2), G.S.].
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1.
The respondent board’s decision to terminate the employment of the
complainant taken at the special meeting of November 12, 1999 is hereby
declared null and void.
2.
The following members of the respondent board shall immediately remit
to this Commission civil penalty amounts as follows:
First Selectman Tuck $150.00, Selectman McGoldrick $100.00.
3.
Henceforth, the respondents shall strictly comply with the notice of
special meeting requirements.
4.
A copy of the Final Decision in this matter shall be posted in a public
and conspicuous place at the Sherman Town Hall for a period of not less than
one month from the date of the Notice of the Final Decision.
Approved by Order of the Freedom of Information
Commission at its regular meeting of
June 28, 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:
First Selectman, Town of Sherman; and Board of Selectmen,
Town of Sherman
c/o Atty. D. Randall DiBella
Cramer & Anderson
51 Main Street, PO Box 330
New Milford, CT 06776-0330
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-561FD/mrb/07/06/00