In the Matter of a Complaint by FINAL DECISION


Gary McPhee,




against Docket #FIC 86-157


Board of Education and the Superintendent of the Board of Education of the Town of Berlin,


Respondents September 24, 1986


The above captioned matter was heard as a contested case on July 16, 1986, 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:


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


2. By letter of complaint filed with the Commission on June 5, 1986 the complainant alleged that the respondents violated the Freedom of Information Act by conducting a meeting on May 29, 1986 without conforming to the notice requirements provided in 1-21, G.S. The complainant further alleged that the respondents discussed two items of business that were not listed in the notice of special meeting.


3. It is found that the respondents conducted a special meeting on May 29, 1986.


4. At the hearing before the Commission, the respondents conceded that the discussion of an "ill staff member" in executive session and the discussion of the "project of elementary enrollment for 1986-87" at the May 29, 1986 meeting were improper because neither item was listed in the notice of special meeting as business to be transacted, in violation of 1-21, G.S.


Docket #FIC 86-157 Page 2


5. It is found that one of the items of business listed in the respondents' May 29, 1986 notice of special meeting was "posting - position of assistant superintendent."


6. It is found that at the special meeting in question, the respondents did not discuss posting the position of assistant superintendent, but instead voted to eliminate the position of assistant superintendent and voted to create and post in lieu thereof, the positions of director of special education and director of curriculum.


7. It is found that with respect to the assistant superintendent's position, the notice of special meeting did not adequately inform the public of the business that would be transacted.


8. It is therefore concluded that with respect to that item of business, the respondents violated 1-21, G.S.


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


1. The Commission hereby declares null and void any action taken at the May 29, 1986 special meeting concerning the elimination of the position of assistant superintendent and the creation of two new positions more fully described in paragraph 6 of the findings of fact, above.


2. Henceforth the respondents shall act in strict compliance with 1-21, G.S., regarding business transacted at their special meetings.


3. The respondents shall provide a copy of this report to the town clerk for posting in the same manner as a notice of special meeting is posted pursuant to 1-21(a), G.S. Such report shall remain posted for a period of one month.


Approved by order of the Freedom of Information Commission at its regular meeting of September 24, 1986.


Karen J. Haggett

Clerk of the Commission