In the Matter of a Complaint by                                         FINAL DECISION


Cyrus Gaeta,




          against                                                         Docket No. FIC 86-23


Richard Farmer, Edward Guenther, Donald Stone and Timothy Horan, Chairman, of the Madison Board of Police Commissioners,


                      Respondents                                                March 26, 1986


          The above-captioned matter was heard as a contested case on February 14, 1986 and continued to March 3, 1986, at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.


          After consideration of the entire record the following facts are found:


          1.         The respondents are public agencies within the meaning of §1-18a(a), G.S.


          2.         The respondent board held a regular meeting on January 16, 1986, the agenda for which included the item "Any Proper Old Business."


          3.         At the January 16, 1986, meeting the respondent board, as a part of "old business," took up the matter of "MRT Training," eventually convening in executive session to discuss the performance of the complainant, the chief of police, with respect to the MRT Training.  Following the executive session, the respondent board reconvened in public session and voted to suspend the complainant for one day.


          4.         By letter of complaint filed with the Commission on January 29, 1986, the complainant alleged that the matter of a disciplinary action against him was not included on the agenda of the January 16, 1986 meeting and that he was not personally notified that disciplinary action would be discussed or taken on that date.  The complainant requested that all actions taken at the January 16, 1986 meeting concerning him be declared null and void and that the Commission impose a civil penalty against the respondent board.


Docket #86-23                                                                                                Page Two


          5.         It is found that the complainant was present at the January 16, 1986 meeting during discussion of the MRT training.  As the discussion developed and the performance of the complainant became an issue the complainant became uncomfortable with the public nature of the discussion.  Largely as a result of the complainant’s discomfort, the respondent board moved into executive session.  While convened in executive session the complainant voiced his objection to having been discussed in public.


          6.         It is found that the respondent board did not vote, pursuant to §1-21a, G.S., to consider business not included in the agenda filed for the January 16, 1986 meeting.  The Commission rejects the respondent board’s claim that a motion to convene in executive session to discuss the complainant’s performance was the equivalent of voting to consider a non-agenda matter.


          7.         It is concluded that the respondent violated §1-21(a), G.S., when it failed to obtain an affirmative vote of two-thirds of its members present and voting to discuss the complainant’s performance with respect to MRT training.


          8.         It is found, however, that the complainant had complete access to attend both the public and executive session portions of the discussion.


          9.         The Commission, therefore, declines to declare null and void the respondent board’s action with respect to the complainant, or to impose a civil penalty, as requested by the complainant.


          10.  The Commission also notes that under the Freedom of Information Act the complainant had no right to require that the respondent board conduct its discussion of his performance in executive session.  Furthermore, having convened in executive session at the complainant’s urging, the complainant had no right to attend the executive session except to the extent that his testimony or opinion was required by the respondent board.


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


          1.  The respondent shall, henceforth, at each regular meeting, obtain an affirmative vote of two-thirds of its members present and voting prior to considering and acting upon business not included in the agenda filed for such meeting, as required by §1-21(a), G.S.


          Approved by order of the Freedom of Information Commission at its regular meeting of March 26, 1986.



                                                                                         Karen J. Haggett

                                                                                         Clerk of the Commission