FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 30, 2010, 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.         It is found that by letter filed April 15, 2010, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by improperly convening in executive session on April 6, 2010.  Specifically, the complainant alleged that the respondent:

 

a.        convened in executive session for an improper purpose;

 

b.        failed to limit attendance at the executive session to such persons whose presence was necessary to present testimony or opinion; and

 

c.        failed to provide adequate notice of the topic discussed in executive session on the meeting’s agenda. 

 

3.         Section 1-225(a), G.S., provides, in relevant part:  “The meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public….

 

4.         Section 1-200(6), G.S., provides in relevant part:

 

“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., provides: “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.         Section 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...

 

7.         Section 1-225(c), G.S., provides:  The agenda of the regular meeting 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…”

 

8.         It is found that the respondent held a regular meeting on April 6, 2010. 

 

9.         It is found that the complainant is a member of the respondent board.

 

10.     It is found that “Item 7” of the Revised Agenda for the April 6, 2010 meeting stated “Executive Session:  Negotiations, Personnel, Board Self-Evaluation.”

 

11.     It is found that the respondent voted unanimously to enter executive session for the reasons stated on the agenda, described in paragraph 10, above.

 

12.     The complainant claims that what was called “Board Self-Evaluation” on the agenda was instead a criticism of her performance as a member of the respondent board mostly by two of her fellow board members.  It is found that the complainant was surprised by the discussion, having anticipated from the agenda that the executive session would pertain to the board in its entirety.

 

13.     The respondent contends that the discussion in executive session was a “self-evaluation,” in that the purpose was to remind members that the board had agreed at a retreat last year that the voice of the board to the press and the public should be solely the chair or the vice-chair and that minority members on a voted and decided issue should “get behind” the vote and support it publicly.

 

14.     It is found that the respondent’s purpose in convening in executive session was, in part, as described in paragraph 13, above.  It is also found that the complainant was the specific target of much of the criticism by two members, who believed that the complainant did not publicly support decisions of the board and did not defer to the chair as the voice of the board to the public and the press.

 

15.     The respondent cites Docket #FIC 1991-035; Eliot C. White , William H. Watson and Record-Journal v. Wallingford Board of Education, which concluded that a “self-evaluation retreat” to discuss “interpersonal relationships” was a proper reason for an executive session.

 

16.     The conclusion in White v. Wallingford Board of Education, supra, however, is limited to an executive session held “only for the purpose of discussing interpersonal board relationships.” (Emphasis added.)  Cf.,  Docket #FIC 1988-447; Mark Pazniokas and the Hartford Court v. Mayor's Commission on Crime, Board of Education and City Council of the City of Hartford (retreat to “encourage communication and develop trust” is meeting to which public has right of access); Docket #FIC 1996-247; Edward Peruta v. J. A. Camille Vatour, Superintendent, of Schools, Rocky Hill Public Schools , et al (retreat at which board discussed termination or discharge of school principal is meeting to which public has right of access).

 

17.     It is found that the executive session of the respondent in this matter was not held “only for the purpose of discussing interpersonal board relationships.” 

 

18.     It is further found that the respondent’s discussion, which focused on board members’ speech to the press and the public, was not an appropriate reason for an executive session, as defined by §1-200(6), G.S.

 

19.     It is concluded, therefore, that the respondent violated §1-225(a), G.S., by holding an improper executive session.

 

20.     It is found that, although the executive session may have been, in part, addressed generally to all members of the board, it appears that most of the discussion specifically targeted the complainant’s conduct.  It is found that such discussion concerned the performance or evaluation of the complainant, within the meaning of §1-200(6)(A), G.S.

 

21.     It is found that the complainant is a “public officer” within the meaning of §1-200(6)(A), G.S.

 

22.     It is found that the respondent did not provide advance notice to the complainant that she had the right to require the discussion be held at an open meeting.

 

23.     It is further found that once it became apparent to the complainant that the focus of the executive session was criticism of her performance, she asked the chair to hold the discussion in an open meeting, but the chair refused.

 

24.     It is concluded, therefore, that the respondent violated §1-225(a), G.S., by failing to provide notice to the complainant that the board would be discussing her performance in executive session and by failing to hold such discussion in open meeting once the complainant exercised her right to require the board to do so.

 

25.     It is found that the superintendent, who is not a member of the respondent board, attended the executive session, but did not participate in the discussion described by the board as “self-evaluation.” 

 

26.     The respondent relies on §10-157, G.S., which provides in relevant part: 

 

(a) Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board. The superintendent shall have executive authority over the school system and the responsibility for its supervision…

 

27.     It is found that, notwithstanding the superintendent’s status as the chief executive officer of the board, the superintendent did not present testimony or opinion pertinent to matters before the board during the “self-evaluation” portion of its executive session.

 

28.     It is concluded, therefore, that the respondent violated §1-231(a), G.S., as alleged by the complainant.

 

29.     With respect to the complainant’s allegation described in paragraph 2.c, above, that the agenda failed to provide adequate notice of the topic discussed in executive session, this Commission has determined in prior cases that all matters on an agency’s agenda must be sufficiently specific so that the public is fairly apprised of the matters to be considered at the meeting in question.  It is found that “Board Self-Evaluation” on the agenda, described in paragraph 10, above, failed to adequately inform the public that two members of the board would conduct in large part a critique of the performance of another member. 

 

30.     It is concluded that the respondents violated §1-225(c), G.S.

 

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

 

1.   Forthwith, the respondents shall create minutes of the portion of the executive session of the April 6, 2010 meeting that discussed “Board Self-Evaluation.” 

 

2.  Henceforth, the respondent shall comply with §§1-225 and 1-231, G.S.

 

3.  The respondents are ordered to contact Commission staff to schedule an FOI workshop. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 23, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Kathryn Fetchick

18 Clapboard Ridge Road

Sandy Hook, CT  06482

 

Board of Education, Newtown Public Schools

c/o Floyd J. Dugas, Esq.

Berchem, Moses & Devlin, P.C.

75 Broad Street

Milford, CT  06460

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-245/FD/cac/2/28/2011