FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as contested case on March 23, 2011, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. The caption above has been amended to reflect the correct first name of the complainant. 

 

            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)(A), G.S.

 

2.  By letter dated September 17, 2010 and filed with the Freedom of Information Commission (“Commission”) on October 1, 2010, counsel for the complainant appealed to the Commission, alleging that, with reference to a September 8, 2010 meeting, the respondent violated the Freedom of Information Act (“FOIA”). Specifically, the complaint alleged that the respondent: a) did not afford the complainant the right to require that an executive session to discuss his employment be held in public; and b) allowed three persons, not members of the respondent, to attend the entire two hour executive session in violation of the FOIA. The complainant also stated that, contrary to the indication of the agenda and draft minutes for the respondent’s September 8, 2010 meeting, no pending claim existed which would permit discussion in an executive session.  The complainant sought as relief an order declaring null and void all actions at the respondent’s September 8, 2010 meeting.

 

3.  Section 1-200, G.S., states in relevant part:

 

 (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; (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…. (emphasis added)

 

4.  Section 1-206, G.S., states in relevant parts:

 

(b)(2) In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend. (emphasis added)

 

….

 

(c) Any person who does not receive proper notice of any meeting of a public agency in accordance with the provisions of the Freedom of Information Act may appeal under the provisions of subsection (b) of this section. …. If such commission determines that notice was improper, it may, in its sound discretion, declare any or all actions taken at such meeting null and void. (emphasis added)

 

5.   Section 1-225, G.S., states in relevant parts:

 

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

 

….

 

 (f) 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.

 

7.  It is found that the respondent held a special meeting on September 8, 2010 in order to consider the complainant’s September 1, 2010 request that the time be extended for him to provide a “fit for duty” letter. Failure to produce a proper “fit for duty” letter by September 1, 2010 constituted resignation under a Last Chance Settlement Agreement dated February 24, 2010.

 

8.  It is found that, on September 3, 2010, counsel for the respondent, Donald F. Houston, notified counsel for the complainant, Daniel P. Hunsberger, that the respondent would meet in executive session at a meeting initially scheduled for September 7, 2010. This notification first took place in a telephone conversation which expressly included discussion of whether the discussion at the respondent’s meeting should be in a public or executive session. It is further found that Attorney Hunsberger understood that his client could require the discussion to be in a public session. Indeed, Attorney Hunsberger agreed with Attorney Houston that Attorney Hunsberger’s client, the complainant, would be best served if the respondent were permitted to discuss the complainant’s employment and dismissal in an executive session. By letter also dated September 3, 2010, which was transmitted by email, facsimile and first class mail to Attorney Hunsberger, Attorney Houston confirmed their telephone discussion that the respondent would meet in executive session on September 7, 2010.

 

9.  It is found that subsequently the respondent’s meeting was rescheduled to September 8, 2010. By letter dated September 4, 2010, which was transmitted by email to both office and personal accounts and also by first class mail, Attorney Houston informed Attorney Hunsberger that the respondent would meet in executive session on September 8, 2010.

 

10.  It is also found that on September 7, 2010, Sarah Taffel, Director of Human Resources, Labor Relations & Administrative Services, Town of Wilton, had a conversation with Attorney Elisabeth S. Maurer, who also represented the complainant. Ms. Taffel and Attorney Maurer testified to different understandings of their September 7, 2010 discussion, but they each agreed that they discussed that the respondent would convene an executive session at its September 8, 2010 meeting. Attorney Maurer also testified that she believed that the best interest of her client was served by allowing the respondent to hold an executive session. Attorney Maurer further testified that she elected not to tell her client about the meeting, although Attorney Maurer did attend the public portion of the respondent’s September 8, 2010 meeting.

 

11.  It is found that at its September 8, 2010 meeting, the respondent convened in public and then held an executive session for more than two hours in order to discuss the complainant’s desire to return to work. Following this discussion, the respondent held a vote in public session which denied the complainant’s request for an extension of time to provide the “fit for duty” letter that was required for him to return to work.

 

12.  It is concluded that the complainant had sufficient notice to permit him to “require that the discussion be held at an open meeting”, pursuant to §1-200(6)(A), G.S. Attorneys Hunsberger and Maurer had notice in fact of the respondent’s intent to hold an executive session to discuss the complainant’s employment at the September 8, 2010 meeting. In addition to the two letters to Attorney Hunsberger, the broader September 3, 2010 discussion between Attorney Hunsberger and Attorney Houston gave very direct and personal notice to counsel for the complainant. Both attorneys Hunsberger and Maurer were knowledgeable concerning the FOIA and well understood their client’s right to require an open meeting. Notice to an attorney for an individual has long been established to be notice to the individual who has the right to require a public meeting. Docket #FIC 1977-156; Linda Potz v. Town of Trumbull and Board of Education of the Town of Trumbull.   

 

13.  It is further concluded that the executive session held by the respondent on September 8, 2010 was to discuss the “employment, performance, evaluation, health or dismissal of a public… employee”, as provided by §1-200(6)(A), G.S. The discussion in executive session did not violate the requirements of §1-225(a), G.S., and there is no basis to declare null and void the respondent’s actions at its September 8, 2010 meeting.         

 

14.  At the hearing, the complainant did not pursue his claim that three non-members attended the respondent’s September 8, 2010 executive session in violation of the FOIA. Given that a lawful executive session was held pursuant to §1-200(6)(A), G.S.,  the Commission declines to adjudicate the respondent’s alternative claim that the executive session was held to discuss strategy and negotiations with respect to a pending claim, pursuant to §1-200(6)(B), G.S.     

 

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

 

1.  The complaint is dismissed.      

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 13, 2011.

 

 

____________________________

S. Wilson

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:

 

Christian Lund   

C/o Elisabeth Seieroe Maurer, Esq. and

Daniel Hunsberger, Esq.

Maurer & Associaties, PC

871 Ethan Allen Highway, Suite 202

Ridgefield, CT 06877

 

Police Commission,

Town of Wilton

C/o Jared Lucan, Esq.

Durant, Nichols, Houston, Hodgson & Corte

1057 Broad Street

Bridgeport, CT 06604

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-611FD/sw/7/15/2011