In the Matter of a Complaint by FINAL DECISION


Ebba Hierta and the Norwich Bulletin,




against Docket #FIC 86-217


New London Board of Ethics,


Respondent November 12, 1986


The above-captioned matter was heard as a contested case on August 26, 1986, at which time the complainants 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." Mr. Fromer 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 Mr. Fromer and Mr. Mallove which threatened to escalate into physical violence.


4. Largely as a result of the disturbance caused by Mr. Fromer 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.


5. By letter of complaint filed with the Commission on August 7, 1986 the complainants alleged as follows:


Docket #FIC 86-217 Page Two


a) That the executive session was not convened for any proper purpose within the meaning of 1-18a(e) or 1-82, G.S.;


b) That the clearing of the room, if conducted pursuant to 1-21h, G.S. was improper because duly accredited members of the press who did not participate in the disturbance were also dismissed; and


c) That the respondent improperly permitted a technical advisor, Mr. Nunes, and a secretary, Ms. Lavoie, to attend the executive session, in violation of 1-21g, G.S.


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 respondent made no claim that the July 21, 1986 meeting was closed pursuant to 1-21h, G.S. The Commission notes, however, that if Mr. Fromer and Mr. Mallove were wilfully interrupting the meeting they could have been removed, pursuant to 1-21h, G.S. 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.


12. The respondent failed to prove that the attendance of Mr. Nunes and Ms. Lavoie was proper within the meaning of 1-21g, G.S. It is concluded that the presence of such persons violated 1-21g, G.S.


Docket #FIC 86-217 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 proper purposes of closed sessions and the limitation of attendance to agency members.


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


Karen J. Haggett

Clerk of the Commission