In the Matter of a Complaint by FINAL DECISION


Robert Fromer,




against Docket #FIC 86-211


Ethics Board of the City of New London,


Respondent November 12, 1986


The above-captioned matter was heard as a contested case on August 26, 1986, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.


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


1. The respondent is a public agency within the meaning of 1-18a(a), G.S.


2. On July 21, 1986 the respondent held a regular meeting, the agenda for which included the item "Robert Fromer and Terry Brennan vs. Harvey Mallove Formal Complaint." The complainant and Mr. Brennan had filed a complaint with the respondent alleging that Mr. Mallove, the chairman of the New London Redevelopment Agency, voted on a matter in which he had a conflict of interest.


3. At the July 21, 1986 meeting the respondent considered whether it had grounds to investigate the complaint against Mr. Mallove. At such meeting, the initial portion of which was open to citizen comments, a shouting match erupted between the complainant and Mr. Mallove which threatened to escalate into physical violence.


4. Largely as a result of the disturbance caused by the complainant and Mr. Mallove, the respondent adjourned to an executive session to deliberate. When pressed for a justification, the respondent cited the provisions of 1-82, G.S. At the conclusion of the executive session the respondent reconvened in public session and voted unanimously to call for a hearing to investigate the allegations against Mr. Mallove.


Docket #FIC 86-211 Page Two


5. By letter of complaint filed with the Commission on July 29, 1986 the complainant alleged that the respondent failed to cite a proper purpose for the July 21, 1986 executive session, that the session was not permitted by the language of 1-82, G.S. and that the respondent improperly failed to keep minutes of the executive session. The complainant requested the imposition of a civil penalty.


6. The respondent claims that the July 21, 1986 executive session was convened pursuant to 1-82, G.S.


7. Section 1-82, G.S., however, applies to the State Ethics Commission only and cannot be extended by analogy or otherwise to the respondent.


8. The respondent also claims that the executive session was proper pursuant to 1-18a(e)(1), G.S. to discuss Mr. Mallove's performance as the chairman of the redevelopment agency.


9. It is found that the respondent's July 21, 1986 executive session was not convened to discuss the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee within the meaning of 1-18a(e)(1), G.S. The purpose of the discussion was, rather, to measure Mr. Mallove's alleged actions against standards established by the New London Code of Ethics.


10. It is concluded that the respondent's July 21, 1986 discussion in executive session violated 1-21(a), G.S.


11. The minutes of the respondent's July 21, 1986 meeting include a record of the vote to convene in closed session and a notation that while convened in closed session no votes were taken. Such minutes, however, did not include a record of those present in the executive session, in violation of 1-21g, G.S.


12. The respondent made no claim that the July 21, 1986 meeting was closed pursuant to 1-21h, G.S. The Commission notes, however, that if the complainant and Mr. Mallove were wilfully interrupting the meeting they could have been removed, pursuant to 1-21h, G.S., and other members of the public could have been allowed to remain. Such a procedure allows non-disruptive members of the public access to an agency's discussions when the actions of disruptive persons have interfered with a meeting's progress.


Docket #FIC 86-211 Page Three


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


1. The respondent shall forthwith cause a memorandum to be circulated to each of its members alerting them to their responsibilities under 1-21(a) and 1-21g, G.S. of the Freedom of Information Act in convening executive sessions, especially with respect to the limited proper purposes of closed sessions and the record of attendance.


Approved by order of the Freedom of Information Commission at its regular meeting of November 12, 1986.


Karen J. Haggett

Clerk of the Commission