FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on August 14, 2003, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The parties submitted post-hearing briefs on August 28, 2003.

 

            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 March 24, 2003, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by voting behind closed doors to designate a “leading candidate” for the position of school superintendent.

 

3.  It is found that the respondent convened in executive session at its special meeting on March 19, 2003, for the purpose of “discussing the Superintendent position.”

 

4.  It is found that the respondent extensively discussed the two finalists for the superintendent position, both of whose identities were known to the public.

 

5.  It is found that, at the conclusion of the executive session, the respondent reconvened in open session and voted to approve the following motion:

 

That the Board of Education’s Chairperson, Mrs. Gladys Cooper, be empowered in conjunction with the Board of Education’s attorney, to enter into an employment agreement discussion with the leading candidate as identified during Executive Session.

 

6.  It is found that a reporter for the respondent News Times in attendance at the meeting requested that the respondent identify the “leading candidate,” but that the respondent declined to do so.

 

7.  The complainants maintain that the respondent violated §1-225(a), G.S., by voting in executive session to identify the leading candidate for the superintendent position.

 

8.  Section 1-225(a), G.S., provides in relevant part that “[t]he votes of each member of any … public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection ….”

 

9.  In Docket #91-206, Bert Bosse v. Lebanon Board of Education, the Commission concluded that a board of education violated the record of votes provision in §1-225(a), G.S., when it conducted a de facto vote in executive session to continue discussions with only one of two finalists for a position as a school principal, and failed to make any record of the votes of each board member.

 

10.  It is found, however, that the respondent in the present case did not conduct a de facto vote in executive session.  While the respondent conducted sufficiently extensive discussions in executive session to make clear to at least some individual members what their respective positions were, the actual vote was conducted publicly.  While the Commission has often found that agencies have conducted de facto votes in executive session in situations where a similar “meeting of the minds” had occurred, the Commission has not made such a finding previously where a subsequent public vote was in fact conducted, and declines to do so in this case.

 

11.  At the hearing, the parties agreed that the issue before the Commission is whether the motion passed by the respondent adequately describes the substance of its vote.

 

12.  In Rose v. FOIC, 221 Conn. 217, 234 (1991), the Supreme Court described the purpose of §1-225(a), G.S:

 

The purpose of the statutory requirements for records of votes and minutes is thus to guarantee that the actions of government agencies will be taken in public so that the public can monitor the performance of its public officials.  “Because of the tremendous increases in governmental agencies and the great impact that their actions have on the individual, it is important that individuals have knowledge of the doings of these bodies.  The provisions of §1-21 [now 1-225] accomplish a salutary objective in this regard by requiring specific and full disclosure of their doings.”  [Emphasis added, internal cite omitted.]

 

13.  The Supreme Court in Rose v. FOIC, above, concluded that statutes protecting the confidentiality of records of teacher performance and evaluation did not permit a board of education to couch a motion recommending disciplinary action in terms that failed to disclose the specific content of the disciplinary actions recommended.

 

14.  It is found that the motion adopted at the respondent’s March 19, 2002 meeting, by omitting the identity of the candidate that the board conditionally intended to offer the superintendent’s position, did not disclose the specific content of the action authorized by its vote.

 

15.  The respondent contends, however, that it provided more information to the public than strictly required by the FOI Act, and that it should not be sanctioned for its efforts to keep the identity of the “leading candidate” confidential until it was sure that the candidate would accept the position on the respondent’s terms.  Specifically, the respondent argues that disclosing the name of the leading candidate would have relegated the other finalist to a perceived “second-best” status, had the leading candidate refused the position.  Additionally, the respondent argues that the FOI Act includes various provisions that permit public agencies to interview and negotiate with candidates before taking a public vote on their appointment.

 

16.  It is found that there is some merit to the respondent’s position.  First, §1-200(2), G.S., provides in relevant part: “‘Meeting’ does not include:  Any meeting of a personnel search committee for executive level employment candidates….”

 

17.  In turn, §1-200(7), G.S.,  provides:

 

“Personnel search committee” means a body appointed by a public agency, whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position.  Members of a “personnel search committee” shall not be considered in determining whether there is a quorum of the appointing or any other public agency.

18.  Additionally, §1-231(a), G.S., provides:

 

      At 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 and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

 

19.  It is found that the respondent did not appoint, or constitute itself to be, a “personnel search committee” within the meaning of §§1-200(2) and (7), G.S.  If it had done so, the gatherings of such a committee would not have been “meetings” pursuant to §1-200(2), G.S., and the respondent would therefore not have been subject to the record of votes provision in §1-225(a), G.S.  See, e.g., Ray Hackett and Norwich Bulletin v. Norwich City Council et al., Docket #FIC 92-340 (“nothing in the FOI Act prohibits a public agency from designating all of its members as a personnel search committee for purposes of §1-18a(f) [now §1-200(7)], G.S.”)

 

20.  It is also found that although the respondent made a good faith effort to inform the public of its doings, it failed to satisfy the requirements of §1-225(a), G.S., for a specific and full disclosure of its doings as a public agency, requirements that are considerably stricter than those imposed on “personnel search committees.”

 

21.  It is therefore concluded that the respondent violated §1-225(a), G.S.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  Henceforth, the respondent shall comply with the Act, shall not take formal or de facto votes in executive session, shall record all votes it does take as required by the Act, and shall ensure that the votes it takes fully and openly disclose the intent of the board by identifying any specific person to which it refers. 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 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:

 

Paul Steinmetz and The News-Times

c/o Ralph G. Elliot, Esq.

Tyler, Cooper & Alcorn, LLP

CityPlace – 35^th floor

Hartford, CT  06103-3488

 

 

Board of Education,

Danbury Public Schools

c/o Thomas Mooney, Esq. and

      Craig S. Meuser, Esq.

Shipman & Goodwin, LLP

One American Row

Hartford, CT  06103-2819

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2003-1095FD/mes/09/25/2003