FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 5, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

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 April 23, 2008 and filed April 22, 2008 [sic], the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOI Act”) by convening in executive session for an impermissible purpose during the respondent board’s March 25, 2008 regular meeting (the “March meeting”).

 

3.      It is found that the complainant, on behalf of Student Transportation of America, Inc., submitted a bid proposal in response to the respondent’s invitation for bids to provide school transportation for special needs students (the “transportation contract”).  It is found that the complainant was one of four vendors bidding for the transportation contract.

4.      It is further found that, prior to the March meeting, the respondent had not awarded the transportation contract to a vendor.

 

5.      It is found that the respondent went into executive session at the March meeting.  It is further found that the respondent’s stated purpose for entering into executive session was to review the bid proposals for the transportation contract.  It is further found that, before entering into executive session, the respondent stated that it hoped to review the bid proposals, and then reconvene in open session and vote on a vendor.  It is further found that, when the respondent reconvened the March meeting in open session, it voted unanimously to award the transportation contract to First Student Transportation, one of the other vendors that had submitted a bid proposal.

 

6.      At the hearing, the respondent contended that it appropriately convened in executive session at its March meeting to discuss pending litigation. 

 

7.      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.”

 

8.      Section 1-200(6)(B), 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. . . .(B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled. . . .

 

9.      Sections 1-200(8) and 1-200(9), G.S., provide that:

 

(8) “Pending claim” means a written notice to an agency which sets for a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.

 

(9) “Pending litigation” means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

 

10.   It is found that, prior to the March meeting, the respondent received a letter from the complainant, in which he stated that he was “surprised” to learn that his company’s bid proposal might not be selected for the transportation contract, and requested an opportunity to meet with the respondent to discuss the bid proposal. 

11.   It is found that the respondent met with the complainant on February 25, 2008 to discuss some of the details in the complainant’s bid proposal. 

12.   It is further found that, prior to the March meeting and after the February 25, 2008 meeting with the complainant, the respondent received a letter from First Student Transportation, in which it was stated that permitting the complainant to change its bid proposal in an effort to comply with the bid specifications would be a kin to allowing the complainant “a second bite at the apple.”  

 

13.   It is found that, at the time of the March meeting, the respondent had not received notice of a pending claim and had not been served with a complaint within the meaning of §§1-200(8) and (9), G.S., respectively.

 

14.   It is also found that, at the time of the March meeting, the respondent was not considering an “action to enforce or implement legal relief or a legal right” within the meaning of §1-200(9)(c), G.S.

 

15.   At the hearing, the respondent contended that as a result of its concern for potential litigation in connection with the correspondence described in paragraph 12, above, it sought legal advice from its counsel.  The respondent testified that its counsel responded to its request for legal advice in the form of two written memorandums.  The respondent further testified that an alternate reason for its executive session during the March meeting was to discuss its attorney’s written advice.

 

16.   Section 1-200(6)(E), G.S., permits a public agency to discuss in executive session “any matter which would result in the disclosure of public records or information contained therein described in subsection (b) of section 1-210.” 

 

17.   Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of “communication privileged by the attorney-client relationship.”

 

18.   Section 1-225(a), G.S., states, however, that: 

 

A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon 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. . . .

 

19.   It is found that even if the respondent did in fact convene in executive session to discuss its counsel’s written legal advice, the respondent board failed to state that this was the purpose of its executive session, pursuant to §1-225(a), G.S.

20.   It is concluded that the respondent improperly convened in executive session and thereby violated the open meeting provision of §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 strictly comply with the open meetings provision of §1-225(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 2008.

 

 

________________________________

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:

 

John H. Spang, Jr.

Student Transportation of America

80 Tower Avenue

Groton, CT 06340

 

Board of Education,

Norwich Public Schools

c/o Michael E. Driscoll, Esq.

Brown Jacobson P.C.

Uncas-Merchants National Bank Bldg.

22 Courthouse Square

PO Box 391

Norwich, CT 06360-0391

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-286FD/paj/10/27/2008