FIC2000-395

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
David Royce,
		Complainant
	against		Docket #FIC 2000-395
Board of Finance, Town of Westport,
		Respondents	October 11, 2000

The above-captioned matter was heard as a contested case on August 17, 2000, 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 §1-200(1), G.S.

2. The complainant, by letter dated July 20, 2000 and filed on July 25, 2000, appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by holding an illegal executive session on June 30, 2000. Specifically, the complainant alleges in his July 20, 2000 letter that the executive session was improper because it:

a. was held for the purpose of discussing a vacancy on an elected board;

b. was not approved by two-thirds of the members of the board at a prior public meeting;

c. was held without giving the persons discussed an opportunity to have the discussion in public.

The complainant requests a null and void remedy, and also that a written warning be issued to all elected bodies in the town of Wesport (“town”) indicating that discussions concerning the filling of vacancies on elected boards are inappropriate for executive session.

3. It is found that the respondent held an executive session on June 30, 2000 during which it discussed candidates in connection with filling a vacancy on its board (“executive session”).

4. With respect to the allegation, as described in paragraph 2a, above, it is found that pursuant to §7-343, G.S. and §C40-3 of the town charter, any vacancy on the respondent is to be filled by appointment by the remaining members. Section 7-343, G.S., provides, in relevant part:

In case of a vacancy in the membership of the board of finance, unless otherwise provided by charter or special act, the remaining members of the board shall, at a special meeting called by the chairman for that purpose, by a majority vote, appoint a successor….

5. Section C40-3 of the town charter provides, in relevant part: “[A]ny …vacancy in any elected board shall be filled by appointment by the remaining members thereof for the unexpired portion of the term.”

6. The complainant essentially contends that an executive session discussion concerning the appointment to the respondent is not permissible within the meaning of §1-200(6)(A), G.S., because the members of the respondent board are not “public officers” within the meaning of that provision. Section 1-200(6)(A), G.S., permits an executive session for: “[D]iscussion concerning the appointment … of a public officer or employee, provided that such individual may require that discussion be held at an open meeting….” [Emphasis added.]

7. It is concluded that the underlying legal question being presented by the complainant has long been settled by the Court in Board of Education v. Freedom of Information Commission, 213 Conn. 216 (1989). There, the Court concluded that a discussion concerning filling of a vacancy on an elected board falls within the purview of §1-200(6)(A), G.S. To have arrived at that conclusion, the Court necessarily concluded that members of the Board of Education in that case, were “public officers” within the meaning of §1-200(6)(A), G.S. The Commission does not have the option of ignoring such court precedent, but must abide by it. Consequently, it is concluded that the respondent’s discussion of the vacancy on its board was an appropriate purpose within the meaning of §1-200(6)(A), G.S., and Board of Education, supra.

8. With respect to the allegation as described in paragraph 2b, above, §1-225(a), G.S., provides, in relevant part: “[A] public agency may hold an executive session as defined in subdivision (6) of section 1-200, 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.

9. It is found that the respondent obtained a unanimous vote before convening in executive session. It is also found that such vote was taken during a publicly conducted meeting. Further, it is found that the respondent stated the reason for the executive session in a June 28, 2000 notice filed with the town clerk’s office.

10. With respect to the allegation as described in paragraph 2c, above, it is concluded that §1-200(6)(A), G.S., provides the individual being discussed in executive session the right to have such discussion at an open meeting, and therefore, the right to appeal any denial of that right. The complainant is not one of the individuals who were discussed during the executive session and therefore, lacks standing to assert any claim that those individuals may have.

11. Based on the foregoing, it is concluded that the respondent did not violate the FOI Act as alleged in the complaint.

12. The complainant’s post-hearing Request to Present Rebuttal Evidence dated September 1, 2000, is denied. Even if the evidence proffered by the complainant in such request were to be included in the record it would not be relevant in the determination of the three allegations brought by the complainant in his complaint, and over which the Commission has jurisdiction, namely, a) was the discussion of the vacancy an appropriate purpose for executive session; b) did two-thirds of the respondent members vote to go into the executive session; and c) were the persons discussed during the executive session provided an opportunity to have the discussion in public.

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.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 11, 2000.

_________________________

Dolores E. Tarnowski

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:

David Royce

387 Main Street

Westport, CT 06880

Board of Finance,

Town of Westport

c/o Ira W. Bloom, Esq.

Wake, See, Dimes & Bryniczka

27 Imperial Avenue

PO Box 777

Westport, CT 06881-0777

__________________________

Dolores E. Tarnowski

Clerk of the Commission

FIC2000-395FD/mes10162000