FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 10, 2006 and April 24, 2006, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purpose of hearing, this matter was consolidated with docket #FIC 2005-489, North Branford Federation of Teachers v. Board of Education, North Branford Public Schools; and docket #FIC 2005-490, Michael Doody, Mayor, Town of North Branford v. Board of Education, North Branford Public Schools.  The Commission takes administrative notice of the testimony, evidence, and argument present in the aforementioned dockets.

 

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 dated October 11, 2005 and filed on October 13, 2005, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by conducting business at its September 15, 2005 regular meeting that was not noticed on the agenda for that meeting.   The complainant also alleged that the respondent failed to vote to add the discussion and vote to the agenda for that meeting.  The complainant requested that the respondent’s actions taken at the September 15, 2005 regular meeting, with respect to the superintendent’s contract, be declared null and void.

 

3.      It is found that the respondent held a regular meeting on September 15, 2005, at which it discussed and voted unanimously to extend the employment contract of the superintendent of schools by one year.  

 

4.      It is found that the complainant believed that the respondent’s agenda for its September 15, 2005 regular meeting was a two-page document (hereinafter “the two-page document”), which did not include the discussion and vote on the superintendent’s contract as an item of business.

 

5.      At the hearing on this matter, the respondent claimed that a certain 56 page document compiled in a three ringed binder, divided respectively by 5 tabs (hereinafter “exhibit 1”), constituted the agenda for its September 15, 2005 regular meeting.  The respondent claimed that the two-page document served only as the table of contents and that notice to the public regarding the discussion and vote of the superintendent’s contract was provided on page 55 of exhibit 1, which is the first page after the fifth tab.  The respondent claimed that the superintendent is employed pursuant to an “unaffiliated contract” and that the discussion and vote on his contract was appropriately held under the agenda item “discussion and action regarding unaffiliated contracts.” 

 

6.      Section 1-225(c), G.S., provides in relevant part that:

 

The agenda of the regular meetings of every public agency . . . shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business . . . Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.

 

7.      In contested case Docket #FIC 1990-048; Trenton E. Wright, Jr. v. First Selectman, Town of Windham, the Commission found that the phrase "executive session - personnel matters" was too vague to communicate to the public the business to be transacted.

 

8.      In Durham Middlefield Interlocal Agreement Advisory Board v. FOIC et al., Superior Court, Docket No. CV 96 0080435, Judicial District of Middletown, Memorandum of Decision dated August 12, 1997 (McWeeny, J.), the court concluded that it was reasonable for the Commission to require something more detailed than "Executive Session Re: Possible Litigation" in a special meeting notice.

 

9.      In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda "is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views," and that "[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing."

 

10.   It is found that page 55 of exhibit 1 provides in relevant part as follows:

                       

COMMITTEE REPORTS

            The Board of Education will review and take possible action on committee reports.

1.      Negotiations

Discussion and action regarding unaffiliated contracts.

 

11.   It is found that unaffiliated contracts, as defined by the respondent, are non-bargaining unit contracts.  It is found that nine individuals, one of whom is the superintendent, are employed by the respondent pursuant to unaffiliated contracts. 

 

12.   It is found that the public would have had to have special knowledge of the meaning of the term “unaffiliated contract” and would have had to guess which contract or contracts would be discussed under that item of business.

 

13.   It is found that the mayor, who is the complainant in docket #FIC2005-490; Michael Doody, Mayor, Town of North Branford v. Board of Education, North Branford Public Schools and a life long resident of the town of North Branford, did not know the meaning of the term “unaffiliated contract” and would not have been aware that the superintendent’s contract would be discussed and voted on at the respondent’s September 15, 2005 regular meeting after reading page 55 of exhibit 1.

 

14.   It is also found that, even though the superintendent drafted the agenda, he was not aware that his contract would be discussed and voted on at the September 15, 2005 regular meeting.

 

15.   It is found that “discussion and action regarding unaffiliated contracts” does not identify the business to be discussed or acted upon with sufficient specificity.

 

16.   Furthermore, the item is buried on the second to last page of a 56 page document that includes charts, letters, and status reports.

 

17.   It is found that the item is after the first two pages of exhibit 1 (which is the document described in paragraph 4, above) which in relevant part provides as follows:

 

North Branford Board of Education

Totoket Valley Elementary School

Northford, Connecticut 06472

 

BOARD OF EDUCATION MEETING

AGENDA

 

 

18.    It is found that the respondent’s agenda did not fairly apprise the public of the business to be transacted under that item of business.

 

19.   It is therefore found that the discussion and vote regarding the superintendent’s contract was subsequent business not included on the agenda and consequently, should have been considered only after a two-thirds vote to add that business to the agenda, in accordance with §1-225(c), G.S.

 

20.   It is found that the respondent did not obtain an affirmative vote of two-thirds of its members present and voting to add the discussion and vote regarding the superintendent’s contract to its agenda and it is concluded, therefore, that the respondent violated §1-225(c), G.S., in that regard.

 

21.   Notwithstanding the findings and conclusion above, the Commission declines to null and void the actions taken by the respondent at its September 15, 2005 regular meeting.

 

 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 strictly comply with the provision of §1-225(c), G.S.

2.  The Commission strongly encourages the respondent to modify its “agenda” to a more conventional format which would be more like the two-page document described in paragraph 4 and 17, of the findings above.  The respondent should refer to Commission decisions for guidance regarding the detail and specificity required for agendas, including the decisions cited in paragraphs 7, 8 and 9, of the findings above. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 27, 2006.

 

________________________________

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:

 

Concerned Citizens Coalition

of North Branford

c/o Michael Doody 

PO Box 287

North Branford, CT 06471

 

Board of Education,

North Branford Public Schools

c/o William R. Connon, Esq.

646 Prospect Avenue

Hartford, CT 06105-4286

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-491FD/paj/10/2/2006