FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 13, 2011, 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.      It is found that on October 26, 2010, the respondents held a special meeting the notice and agenda for which were properly posted, and listed the items of business as follows:

 

1.      Executive Session: Personnel

2.      Public Session: Personnel

 

3.      It is found that during the special meeting, the respondents convened in executive session and discussed the job performance of the complainant.  It is also found that the complainant was present during the special meeting, and participated in the discussion of his job performance in executive session.

 

4.      It is found that, after a discussion that became uncomfortable for all parties, the complainant tendered his resignation, and the respondents voted in public session to accept the complainant’s resignation.

 

5.      It is found that no other members of the public attended the special meeting.

 

6.      By letter dated and filed on November 23, 2010, the complainant, through counsel, appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act with respect to the October 26, 2010 special meeting by:

 

a.       failing to comply with the notice requirements of §1-225(d), G.S.;

b.      failing to comply with the notice requirements of §1-206(2), G.S.; and

c.       failing to comply with the notice requirements of §1-200(6), G.S.

 

The complainant requested that the actions taken by the respondents at the October 26, 2010 special meeting be declared null and void.

 

7.      With respect to the complainant’s allegation in paragraph 6a, above, the complainant specifically alleged that the notice of special meeting did not adequately specify the business to be transacted and that it did not provide notice to the complainant, or the public, that his “job performance, continued employment and method of termination would be the subject of discussion at either the executive or public session.”

 

8.      With respect to the complainant’s allegation in paragraph 6b, above, the complainant specifically alleged that the respondents violated §1-206(b)(2), G.S., by denying the public proper notice and the right to attend, contending that the notice was so general that it actually discouraged the public from attending.

 

9.      Section 1-225(d), G.S., provides that:

 

Notice of each special meeting of every public agency … shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place … in the office of the clerk of such subdivision for any public agency of a political subdivision of the state…  [The] clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting … The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency.

 

10.  Section 1-206(b)(2), G.S., provides in relevant part that:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may …. 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 ….

 

11.   It is found that while the complainant referred to §1-206(b)(2), G.S., the allegations described in paragraphs 6a and 6b, above, are both allegations of violations of the notice provisions of the FOI Act found in §1-225(d), G.S., and will be addressed accordingly. 

 

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. [1]

 

16.   Consequently, it is concluded that the respondents notice, and agenda did not fairly apprise the public of the business to be transacted at the October 26, 2010 special meeting within the meaning of §1-225(d), G.S.  Accordingly, it is concluded that the respondents violated that provision.

 

17.   With respect to the complainant’s allegation in paragraph 6c, above, the complainant specifically alleged that the respondents violated §1-200(6), G.S., by failing to provide him with “adequate advance notice” of the purpose of the meeting, and that he had a right to require that the discussion be held in public.

 

18.   Section 1-200(6), 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:  (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 . . .

 

19.   It is concluded that the FOI Act requires only that a public agency must provide meaningful notification to an employee prior to convening in executive session to discuss such employee – meaning that the notification must be in a manner that gives the employee the opportunity to object to the session before it is convened.

 

20.   At the hearing on this matter, the respondents contended that, on the mornings of the 25^th and the 26^th of October, the complainant was informed by the first selectman that there would be a Board of Selectmen’s meeting regarding his job performance.  However, the complainant contended at the hearing that he was only told that the meeting would be about the budget. 

 

21.   Notwithstanding the conflicting testimony, it is found that the complainant was made aware at the special meeting, prior to the respondents convening in the executive session, that his job performance was the subject of the proposed executive session.   

 

22.   It is found that even though he had the opportunity, the complainant did not object to the executive session, but rather accepted the invitation to participate in the discussion in executive session. 

 

23.   It is found that the respondents provided the complainant with meaningful notice that his employment would be discussed within the meaning of §1-200(6)(A), G.S.  Accordingly, it is concluded that the respondents did not violate the FOI Act, as alleged by the complainant in this regard.

 

24.   Notwithstanding the conclusion in paragraph 16, above, the complainant’s request for relief is denied.

 

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 comply with the notice requirements of §1-225(d), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 24, 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:

 

Richard L. Stone

c/o Jeffrey B. Sienkiewicz, Esq.

Sienkiewicz & McKenna, PC

9 South Main Street

P.O. Box 786

New Milford, CT  06776-0786

 

 

Board of Selectmen, Town of Cornwall; and

Town of Cornwall

c/o Perley H. Grimes, Jr., Esq.

Cramer & Anderson LLP

46 West Street

P.O. Box 278

Litchfield, CT  06759-0278

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-738/FD/cac/8/25/2011