FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by |
FINAL DECISION |
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Norman B. Seney, |
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Complainant |
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against |
Docket #FIC 2002-315 | |
Daniel
S. Rovero, Mayor, Town of Putnam; Douglas
Cutler, Town Administrator, Town of
Putnam; and Board of Selectmen, Town of Putnam, |
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Respondents |
July 9, 2003 | |
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The above-captioned matter was heard as a contested
case on October 29, 2002, at which time the complainant and the respondents
appeared and presented testimony, exhibits and argument on the complaint.
For purposes of hearing, the above-captioned matter was consolidated
with Docket #FIC 2002-357; Norman B. Seney v. Mayor, Town of Putnam; Deputy
Mayor, Town of Putnam; and Board of Selectmen, Town of Putnam.
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.
2.
By letter dated July
15, 2002 and filed on July 16, 2002, the complainant appealed to this
Commission alleging that the respondents violated the Freedom of Information (“FOI”)
Act as follows:
a.
“ [moved] to go
into executive session to discuss a letter from Bacon & Edge (auditors);
b.
that the contents of
the letter from Bacon & Edge, the town auditors, is public unless
otherwise stated;
c.
no reason was given
for the executive session that would adhere to state statutes;
d.
the town
administrator, Douglas Cutler, was a participant in the executive session . .
.;
e.
the executive session
was called to discuss the allegations against the Water & Sewer Director,
William Trayner and that Mr. Trayner was not advised by the Board prior to the
executive session . . .;
f.
the Water & Sewer
department pays for their own audit with user fees and this motion wasn’t
made available to this board. (Re:
Putnam Town Charter Sec. 16 Water & Sewer Authority);
g.
the director can only
be removed by the WPCA board with the consent of the selectmen;
h.
the letter should
have been addressed to the WPCA chairman not to the town administrator;
i.
the letter was
discussed at the regular monthly WPCA meeting in open session and the chairman
had to request a copy of the letter from the auditor.”
The
complainant also requested the imposition of civil penalties against the
respondents.
3.
With respect to the
claims in paragraphs 2b and 2f through 2i, above, it is found that the
complainant has not alleged a violation of the FOI Act, therefore the
Commission lacks jurisdiction over such claims and they will not be addressed
herein.
4.
With respect to the
allegations in paragraph 2a and 2c through 2e, above, it is found that Bacon
and Edge was hired by the town of Putnam to conduct an audit of the town’s
agencies.
5.
It is found that
during the performance of Bacon and Edge’s audit planning procedures, a
certain cash disbursement was reviewed and after discussions with the town’s
director of the Water Pollution Control Authority, Bill Trayner, and other
town employees, Bacon and Edge brought the matter to the respondent town
administrator’s (hereinafter
“respondent Cutler”) attention by letter dated June 17, 2002.
6.
It is found that the
June 17, 2002 letter summarized the details of the transaction, suggested that
Mr. Trayner failed to follow town policy and procedure during the course of
the transaction, and suggested that town management review the matter further.
7.
It is found that
respondent Cutler thought it appropriate to bring the letter to the respondent
board’s immediate attention and when he presented it to the respondent board
at its June 17, 2002 regular meeting, the respondent mayor stated that the
letter “should be discussed in executive session as far as personalities . .
. .”
8.
It is found that
during the respondent board’s regular meeting of June 17, 2002, it voted to
go into executive session to discuss the June 17, 2002 letter.
9.
At the hearing on
this matter the respondents argued that in view of the fact that the letter
from Bacon and Edge contained serious allegations that were not substantiated
beyond the letter, it was appropriate to go into executive session for a
personnel matter or rather “personalities” as the respondent mayor phrased
it. The respondents also argued
that because the session was limited to “the procedural purpose of
determining the next step” to be taken by the town, they did not feel that
notice to Mr. Trayner was required.
10.
Section 1-225(a), G.S.,
provides in relevant part that “[t]he meetings of all public agencies, except
executive sessions, as defined in subdivision (6) of section 1-200, shall
be open to the public . . . .”
11.
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;
12.
It is found that
during the executive session, the respondents discussed what actions should be
taken in response to the information provided by Bacon and Edge and what
directive should be given to respondent Cutler in that regard.
13.
It is also found that
neither Mr. Trayner’s performance in general nor as it pertained to the
transaction at issue, was discussed during the executive session.
14.
It is found that the
purpose for which the respondent board entered into executive session was not
to discuss the appointment, employment, performance, evaluation, health or
dismissal of a public officer or employee within the meaning of §1-200(6),
G.S.
15.
It is found that the
respondent mayor and board of selectmen convened in executive session for an
impermissible purpose and it is concluded, therefore, that the respondents
violated §1-225(a), G.S.
16.
It is also found that
the respondent Cutler was not responsible for the convening of the executive
session and it is concluded that he did not violate the FOI Act.
17.
Notwithstanding the
conclusion in paragraph 15, above, the Commission declines to consider the
imposition of civil penalties in this matter.
The following order
by the Commission is hereby recommended on the basis of the record concerning
the above-captioned complaint.
1. Henceforth the respondents shall strictly comply with the executive session and the open meetings provisions of §§1-200(6) and 1-225(a), G.S.
2. The complaint against the respondent Cutler is dismissed, since there is no showing that he is a member of the respondent board.
Approved by Order of the Freedom of Information Commission at its regular meeting of
July 9, 2003.
___________________________________
Ann B. Gimmartino
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:
Norman B. Seney
171 Elmwood Hill Road
Thompson, CT 06277
Daniel
S. Rovero, Mayor, Town of Putnam;
Douglas
Cutler, Town Administrator, Town of
Putnam;
and Board of Selectmen, Town of Putnam
c/o
William St. Onge, Esq.
Boland,
St. Onge & Brouillard
PO
Box 550
Putnam, CT 06260-0550
___________________________________
Ann B. Gimmartino
Acting Clerk of the Commission
FIC/2002-315FD/abg/07/11/2003