FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 14, 2010, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      By letter dated and filed August 17, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOI Act”) in the following ways: on July 21, 2010, the Board of Selectmen and the Board of Finance (the “respondents”) held a joint regular meeting, during which time the respondents convened in two separate executive sessions.  The respondents’ agendas for the July 21, 2010 meeting described the executive sessions, as follows:  1) “Executive session—discussion and possible decision to hire re-val company,” (the “first executive session”) and  2) “Executive session—discussion of status of finance director,” (the “second executive session”). The complainant contends that each of these executive sessions violated the provisions of the FOI Act. 

 

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, as follows:

 

“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;  (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;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

5.      Section 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.” 

 

6.      Section 1-200(7), G.S., defines “personnel search committee,” as “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 position.” 

 

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

 

The agenda of the regular meetings of every public agency, except for the General Assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business, and (2) in the office of the Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency.  For any such public agency of the state, such agenda shall be posted on the public agency’s and the Secretary of the State’s web sites. . . .

8.      With regard to the first executive session which dealt with a revaluation contract, it is found that, prior to the contested case hearing in this matter, the respondents conceded that this executive session was inappropriate under the provisions of §1-200(6), G.S., and that said discussion should have occurred at an open meeting.  It is further found that since the time of the first executive session, counsel has reviewed the executive session provisions in the FOI Act with the respondents in order to properly clarify those matters which are properly discussed in executive session.  Counsel has represented to the Commission that he believes that his clients now have a much better understanding of the executive session provisions. 

 

9.      With regard to the second executive session, it is found that the Town of Westbrook has been engaged in the process of searching for a person to assume the position of Director of Finance.  It is further found that, approximately a year ago, the Town of Westbrook convened a three-person committee, whose purpose was to seek out, interview and select a candidate for the position of Director of Finance, and to make a recommendation about the candidates to the respondent Board of Selectmen and the respondent Board of Finance concerning the most qualified candidates. 

10.  It is found that, after conducting a search for individuals for the director position, the committee described in paragraph 9, above, selected an individual to recommend to the respondents.  It is found that the committee had made its selection prior to the second executive session at issue in this case.   However, it is further found that, after being selected by the committee, the selected individual withdrew her application. 

11.  It is found that, subsequent to the selected individual’s withdrawal of her application, another individual expressed interest in the director’s position to the First Selectman.  It is found that this individual became aware of the position thorough the Town of Westbrook’s search efforts.  It is found that the First Selectman attended the second executive session at issue in this case to present this individual’s qualifications to the respondent boards so that the boards could discuss this individual’s potential for appointment to the Director of Finance position.  It is further found that this particular individual, who did not want his name or other identifying information to be discussed in public, was not the individual ultimately hired for the director’s position. 

12.  It is found that the second executive session occurred during a joint meeting between the respondent boards, rather than during a “non-meeting” of a personnel search committee, pursuant to §1-200(2), G.S.

13.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC, et al., Superior Court, Docket No. 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.”

 

14.  Based on the findings above, while it is found that the discussion of the candidate’s potential appointment to the director’s position was an appropriate subject for executive session pursuant to §1-200(6)(A), G.S., it is further found that the respondents’ agendas did not fairly apprise the public that this particular discussion was the reason they convened the second executive session.
 

15.  Based on the findings in paragraph 14, above, it is concluded that the respondents violated §1-225(c), G.S., by failing to describe sufficiently on their agendas the business they planned to discuss during the second executive session at the July 21, 2010 joint 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 respondents shall strictly comply with the provisions of §1-225(c), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 9, 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:

 

Darlene Jones

358 Cold Spring Drive

Westbrook, CT  06498

 

Board of Finance, Town of Westbrook; and

Board of Selectmen, Town of Westbrook

c/o John S. Bennet, Esq.

Gould, Larson, Bennet, Wells & McDonnell, PC

P.O. Box 959

Essex, CT  06426

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-512/FD/cac/3/11/2011