In the Matter of a Complaint by FINAL DECISION


Robert Caffery,


Complainant Docket #FIC 86-172




Portland Volunteer Fire Department, Engine Co. #1,


Respondent September 23, 1986


The above captioned matter was scheduled for hearing on July 17, 1986 at which time the parties appeared and presented evidence and argument on the complaint.


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.


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.


Docket # FIC 86-172 page two


7. 7-313e, 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 letter filed June 11, 1986 the complainant alleged that the respondent had violated the Freedom of Information Act in several ways in connection with a meeting at which he was denied membership in the respondent.


10. The complainant alleged that the respondent violated the law because there was no agenda for its May 13, 1986 meeting and that neither the votes of the meeting nor the minutes were filed with the town clerk, that there was no schedule of regular meetings filed with the town clerk, and that the complainant was not informed that he had a right to have his performance as a firefighter discussed publicly when the respondent was considering his status with the company.


11. The respondent regularly held meetings on the second Tuesday of the month, however, it had not filed any schedule of these meetings with the town clerk.


12. Since there was no schedule of regular meetings filed with the town clerk, the meeting which was held on May 13, 1986 was a special meeting.


13. It is found that the respondent failed to post a notice of the September 13, 1986 special meeting with the town clerk as required by 1-21, G.S.


14. The meeting which was held on May 13, 1986 had two parts, an executive meeting and a meeting of the members.


15. The complainant was invited to the executive committee meeting, and was permitted to attend the meeting of members up to the time that the question whether he should get a permanent position with the respondent was considered and voted by the members.


Docket # FIC 86-172 page three


16. When the vote concerning the complainant was considered, the complainant was asked to leave the room.


17. It is found that, when the complainant was asked to leave the room, he was denied his right to attend a public meeting in violation of 1-21, G.S.


18. While the complainant was out of the room, a vote was taken by ballot, and the complainant was denied membership by an 8-7 vote.


19. Minutes of both meetings, the agenda for the meeting, and the vote of the executive committee were posted in the firehouse but the firehouse is not publicly accessible because it has no regular business hours.


20. Neither the votes nor the minutes nor the agenda of the meeting were available at the town clerk's office.


21. 1-19(a) requires that each agency keep and maintain all public records in its custody in an accessible place either at its regular place of business or the town clerk's office.


22. It is found that the respondent failed to comply with 1-19(a), G.S. because it failed to keep its records at an accessible place, or at the town clerk's office.


23. Neither the minutes of the meetings nor the record of votes showed who voted in favor of and who voted against the motion to make the complainant a member of the respondent fire company.


24. 1-21, G.S. requires that


the votes of each member of any... public

agency upon any issue before such public

agency shall be reduced to writing and made

available for public inspection within

forty-eight hours and shall also be recorded

in the minutes of the session at which taken.


Docket # FIC 86-172 page four


25. It is found that the respondent violated the foregoing requirement of 1-21 which requires the votes of members of an agency to be made public within forty-eight hours and also in its minutes because it failed to maintain a record of the motion voted, or of the names of the persons voting in favor and voting against.


26. The complainant asked that the Commission declare his expulsion from the respondent fire company null and void.


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


1. The vote taken by the respondent on May 13, 1986 which resulted in the expulsion of the complainant Robert Caffery is hereby declared null and void.


2. The improper recording of the motion and vote on the complainant's expulsion, noted herein at paragraphs 23 through 25, could not have been included within the original complaint, because the respondent had filed minutes in a place where neither the public nor the complainant could see them. Thus the FOIC notes these violations solely to educate the respondent to the requirements of the law. The Commission urges the respondent to more faithfully comply with the law with respect to its filing of minutes and the notice requirements of 1-21, G.S. in the future.


Approved by order of the Freedom of Information Commission at its special meeting of September 23, 1986.


Karen J. Haggett

Clerk of the Commission