FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 31, 2007, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2007-002, Bradshaw Smith v. Elizabeth E. Feser, Superintendent of Schools, Windsor Public Schools; Patricia M. Digore, John C. Eichner, David P. Gay, Adam Gutcheon, Paul J. Panos, Milo W. Peck, Jr., Doreen E. Richardson, Christopher Watts, and Paula A. Zeiner, as members, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools.

 

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 December 29, 2006 and filed on January 3, 2007, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by convening in executive session, at their December 19, 2006 meeting, to discuss “personnel matters” which, as alleged by the complainant, is not permissible under the FOI Act.  The complainant requested the imposition of a civil penalty against the respondents and an order that the respondents “comply fervently” with the FOI Act.

 

3.      Section 1-225 G.S., provides in relevant part that:

 

(a)    The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be public . . .

 

(b)   [t]he 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 . . . .

 

4.      Section 1-200, G.S., in relevant part, provides:

 

(6) “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 . . .

 

5.      Section 1-225(f), G.S., further provides that:

 

A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.

 

6.      It is found that the respondent board held a meeting on December 19, 2006, the agenda for which provided in relevant part as follows:

 

Employee Personnel Matters

It is proposed that the Board of Education go into Executive

Session to discuss personnel matters.  It is possible that the

Board of Education will take action in the public portion of

the meeting.

 

7.      It is found that the respondent board convened in executive session during its December 19, 2006 meeting to discuss the performance of, and compensation package for, Windsor Public Schools’ non-affiliate employees, who are employees that are not part of a collective bargaining unit.

 

8.      It is found that each individual non-affiliate employee was notified prior to the December 19, 2006 meeting that his or her individual performance and compensation package would be discussed during executive session and were given the opportunity to request that the discussion be held in an open session. 

 

9.      It is found that the respondent discussed each non-affiliate employee’s performance and compensation package individually during the executive session described in paragraph 7, above.

 

10.   Consequently, it is concluded that the respondents’ discussion during the executive session described in paragraph 7, above, was a discussion concerning the employment, performance and evaluation of public employees within the meaning of §1-200(6)(A), G.S. 

 

11.   At the hearing on this matter, the complainant explained that his complaint, while perhaps not worded precisely, was that the respondents’ use of the phrase “personnel matters” on the agenda for its December 19, 2006 meeting was not specific enough to fairly apprise the public of the business to be transacted at that meeting.  The complainant contended that the agenda should include more than “personnel matters” whether it be the name of the employee or some other identifying information.  The complainant contended that while there was no specific statutory provision in this regard in the FOI Act, this Commission has decisions that support his contention. 

 

12.   This Commission determined, in contested case Docket #FIC 1990-048; Trenton Wright, Jr. v. First Selectman, Town of Windham, that the phrase “executive session – personnel matters” was too vague to communicate to the public the business to be transacted.

 

13.   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.

 

14.   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 apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

15.   This Commission has repeatedly stated that in order for the public to be fairly apprised of the reason for an executive session, the public agency must give some indication of the specific topic to be addressed, prior to convening such session.  Therefore, descriptions such as “personnel”, “personnel matters,” “legal” or even “the appointment, employment, performance, evaluation, health, dismissal of a public officer or employee” are inadequate and do not state the reason for convening in executive session, within the meaning of §1-225(f), G.S.

 

16.   It is found that the respondent board did not identify on its agenda or during the public portion of its December 19, 2006 meeting the personnel matter that was discussed during the executive session prior to convening such session.

 

17.   Consequently, it is concluded that the respondents did not sufficiently state the reason for the December 19, 2006 executive session, within the meaning of §1-225(f), G.S., and therefore, violated such provision.

 

18.   Notwithstanding the conclusion in paragraph 17, above, the Commission declines to consider the complainant’s request for civil penalties.

 

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 provisions of §1-225(f), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 2007.

 

 

_______________________________

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:

 

Bradshaw Smith

23 Ludlow Road

Windsor, CT 06095

 

Milo W. Peck, Jr., member, Board

of Education, Windsor Public Schools;

and Board of Education, Windsor

Public Schools,

c/o Thomas B. Mooney, Esq. and

Gary Brochu, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103-1919

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-003FD/paj/8/17/2007