In the Matter of a Complaint by FINAL DECISION


Robert Caffery


Complainant Docket #FIC 86-95




Volunteer Fire Department of the Town of Portland


Respondent May 28, 1986


The above captioned matter was scheduled for hearing on April 23, 1986 at which time the parties appeared and presented evidence and argument on the complaint. Thereafter it was continued to May 2, 1986 at which time further evidence and argument was presented.


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


1. The respondent is an organization composed of volunteers and administered in accordance with its own by-laws.


2. The equipment and fire houses utilized by the respondent are provided by the town of Portland.


3. 7-301, G.S. permits any town, city or borough to appropriate funds to a volunteer fire company or companies for services rendered or to be rendered within its confines.


4. 7-308, G.S. obligates the town in which the respondent functions to assume liability for damages caused by volunteer firemen where damages complained of arose while the volunteer fireman was performing fire duties.


#FIC 86-95 page 2


5. 7-314 and 7-314a provide that "active members of volunteer fire companies" are eligible under certain conditions for compensation for death, disability or injuries under chapter 568 (Workmen's Compensation Act).


6. 7-313c permits towns to indemnify volunteer firemen for expenses for tuition and textbook charges for courses on fire technology and administration.


7. 7-313(e), G.S. and 7-313b authorize the fire officer in charge of a fire company to exercise special powers under certain conditions.


8. It is concluded that the respondent is a public agency within the meaning of 1-18a(a), G.S., and that it is subject to the requirements of the Freedom of Information Act.


9. By complaint filed March 27, 1986 the complainant alleged that the respondent failed to comply with the Freedom of Information Act on March 5, 1986, when the executive committee of the respondent met to discipline him without giving him notice of the discussion of his performance.


10. The complainant further alleged that the respondent failed to comply with the act again on March 18, 1986, when the executive committee met first with the chief of the department and subsequently with the complainant, at which time the complainant was informed that the the suspension imposed by the executive committee at the March 5, 1986 meeting would remain in effect.


11. The complainant further alleged that on March 14, 1986, the respondent failed to provide copies of the minutes of the March 5, 1986 meeting.


12. In February the complainant, a volunteer fireman, responded to an emergency call where an unconscious male victim was identified as having A.I.D.S. by a woman present in his apartment.


13. Complainant was unable to work on the victim with proper protection because the trauma kit did not contain the required rubber gloves.


14. Following this incident, the complainant wrote to his attorney regarding the incident and stated in this letter that "due to the negligent care of the equipment and the lackadaisical attitude of the department, I will hold the department responsible for all damages incurred, including defamation of character."


FIC #86-95 page 3


15. Copies of the letter to the attorney were circulated by the complainant to members of the respondent.


16. On March 5, 1986, the respondent held a meeting at which it discussed the complainant's letter to his attorney and reached a decision to suspend the complainant for sixty days.

17. On March 8, 1986, the complainant was notified by certified mail that, at a meeting on March 5, 1986, the executive committee decided to suspend him for sixty days.


18. In relevant part 1-18a(e)(1), G.S. defines "executive session" as


a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) 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 found that the complainant is a public officer in his capacity as a volunteer firemen.


20. It is found that 1-18a(e)(1), G.S. requires a public agency to ask the person whose performance will be discussed whether he or she requires the discussion be held at an open meeting.


21. It is concluded that the respondent failed to inform the complainant that the meeting of the executive committee would be held on May 5, 1986 and, since his performance would be discussed, that he had a right to require the meeting be held in public.


22. The second meeting with the executive board was initiated by the complainant.


23. Part of the meeting was held without the complainant but was attended by the chief.


24. The chief talked, not about the complainant's performance, but rather about the seriousness of the events which had taken place, and told the executive committee to "dot its "I's" and cross its "T's."


#FIC 86-95 page 4


25. When the executive committee met thereafter with the complainant, they discussed his performance but they did not reconsider his suspension; they informed him that they would not rescind the suspension, and that he could improve relationships by writing a letter of apology.


26. The respondent argued that the meeting on March 18 did not violate 1-18a(e)(1), G.S. because the complainant was not discussed at the portion of the meeting which was attended by the chief.


27. The respondent further argued that the meeting with the complainant on March 18, 1986 cured the defects in its proceeding on March 5, 1986.


28. It is found that the March 18, l986 executive session with the chief was illegal.


29. The meeting was illegal because it was an executive session not held for any proper purpose within the meaning of 1-18a(e), G.S.


30. Thereafter, the meeting with the complainant on March 18, 1986, was also illegal because, although it was treated as an executive session, the respondent never gave the complainant any opportunity to choose whether the session should be closed to the public or open as is required by 1-18a(e)(1), G.S.


31. On March 14, 1986, the brother of the complainant requested a copy of the minutes of the executive committee meeting of March 5, 1986.


32. No minutes were provided to him because the minutes had not yet been completed.


33. 1-21 provides in relevant part that:


The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing ...and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.

34. It is found that the respondent failed to provide minutes of the March 5, 1986 meeting within seven days of the meeting.


#FIC 86-95 page 5


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


1. The vote to suspend the complainant for 60 days which was taken at the March 5, 1986 meeting, is hereby declared null and void.


2. The respondent shall henceforth comply with 1-21 and 1-18a(e), G.S.


Approved by order of the Freedom of Information Commission at its regular meeting of May 28, 1986.


Karen J. Haggett

Clerk of the Commission