FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Norman B. Seney,

 

Complainant

 

 

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,

 

 

Respondents

July 9, 2003

 

 

 

 

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