FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Kevin H. Hayes,

 

Complainants

 

 

against

Docket #FIC 2001-377

Board of Public Safety,
City of Torrington,

 

 

Respondents

December 12, 2001

 

 

 

 

The above-captioned matter was heard as a contested case on September 21, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned complaint was consolidated with Docket #FIC 2001-376, Joseph A. McElroy v. Board of Public Safety, City of Torrington.

 

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.      By letter filed on August 10, 2001 the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by improperly conducting an executive session during its July 11, 2001 meeting.

 

3.      At the hearing on this matter, the respondent moved to dismiss the complaint on the ground that this Commission lacks jurisdiction because the complaint was filed via fax.  In support of its motion, the respondent cited §1-21j-22 of the Regulations of Connecticut State Agencies and claimed that because the superior court does not accept faxed complaints, this Commission is precluded from accepting such complaints.

 

4.      Section 1-21j-22 of the Regulations of Connecticut State Agencies provides in relevant part that: “the [FOI] commission shall accept papers and other recorded information transmitted by electronic mail or fax to the same extent permitted by the rules of the superior court in civil actions.”

 

5.      It is found that the complaint in this matter was filed with this Commission via fax transmittal on August 10, 2001.

 

6.      It is found that pursuant to the Connecticut Practice Book the superior court does not accept filings via fax transmittal.

 

7.      However, §1-21j-13 of the Regulations of Connecticut State Agencies provides in relevant part that “[w]here good cause appears, the commission or any presiding officer may permit deviation from sections 1-21j-1 to 1-21j-57, inclusive, of the Regulations of Connecticut State Agencies, except where precluded by statute.”

 

8.      It is found that the complaint in this matter was filed by fax within the statutory period required for filing complaints; the respondent did not submit it’s motion to dismiss until the hearing on this matter, although it had at least two weeks prior to the hearing within which to file such motion; and all parties were present at the hearing on this matter prepared to proceed on the merits of the case. 

 

9.      Consequently, it is found that good cause appears to warrant deviation from §1-21j-22 of the Regulations of Connecticut State Agencies and the respondent’s motion to dismiss the complaint is accordingly denied.

 

10.  With respect to the complainant’s allegation described in paragraph 2, above, it is found that the respondent held a meeting on July 11, 2001 during which it entered into executive session, without any objection from the complainant, who was in attendance at such meeting, to discuss the top four eligible candidates for promotion from lieutenant to captain in the city of Torrington’s Department of Fire Service.

 

11.  It is found that the top four candidates, from highest to lowest, as determined by their promotional examination scores included a Mr. McElroy; Mr. Hayes, the complainant; a Mr. Smith; and a Mr. Starr.

 

12.  It is found that during the July 11, 2001 executive session the respondent reviewed and discussed each of the candidate’s portfolios, which contained information regarding their performance in their present and past positions.

 

13.  It is found that during the July 11, 2001 executive session, the respondent invited the chief and deputy chief into said session and each presented testimony and opinion with respect to the candidates for promotion.

 

14.  It is found that at the conclusion of the July 11, 2001 executive session, the respondent convened in open session, announced and voted to promote Smith and Starr.

 

15.  At the hearing on this matter, the complainant claimed that the respondent’s practice in awarding promotions had been to enter into executive session, review only the names and scores of the top four candidates and promote the top scoring candidate or candidates depending on the number of available positions.  The complainant claimed that in years that he has witnessed the respondent’s promotion process, it never deviated from that practice.  He further claimed that had he been aware that the respondent would deviate from its practice and hold an in depth discussion regarding his performance, which included an inspection of his portfolio and consideration of his superior officers’ opinions, he would have objected to the executive session and required that the discussion be held in open session.

 

16.  Section 1-200(6), G.S., provides in relevant part that:

 

"Executive sessions" means 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 . . . .

 

17.  Section 1-231(a), G.S., provides in relevant part that:

 

[a]t an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion . . . .

 

18.  It is found that the complainant was present at the July 11, 2001 meeting and was present when the respondent board voted and entered into the July 11, 2001 executive session.

 

19.  It is found that the complainant was aware, prior to the July 11, 2001 meeting, that he was one of the top four eligible candidates and that his name and score on the promotional examination would be submitted to the respondent for review during the July 11, 2001 executive session. 

 

20.  It is found that the complainant was not aware that the respondent was permitted under the FOI Act, or that the respondent intended, to have an in depth discussion of his performance during the July 11, 2001 executive session, as described in paragraph 12, above.

 

21.  It is found that while the respondent could have made it clear to the complainant that it would to hold a more in depth discussion regarding the promotions than it had in the past, the respondent is under no legal obligation to provide notice to the complainant of the intended depth of its discussion. 

 

22.  It is concluded therefore that the respondent did not violate the provisions of §1-200(6), 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.

 

                                                                                   

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 2001.

 

 

_______________________________________

Petrea A. Jones

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:

 

Kevin H. Hayes

345 Funston Avenue

Torrington, CT 06790

 

Board of Public Safety,

City of Torrington

c/o Albert G. Vasko, Esq.

Corporation Counsel

City of Torrington

140 Main Street

Torrington, CT 06790

 

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-377/FD/paj/12/17/2001