In the Matter of a Complaint by FINAL DECISION


Michael Hill and Post-Newsweek Stations, Connecticut, Inc.,




against Docket #FIC 86-188


Board of Education of the Town of Berlin,


Respondent January 14, 1987


The above captioned matter was scheduled for hearing on July 31, 1986, at which time it was continued to August 20, 1986, at which time the parties appeared and presented testimony, exhibits and argument on the complaint. On October 22, 1986, the Commission considered but failed to approve the report of hearing officer in this matter dated August 28, 1986. As a result, this revised report is submitted.


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. By complaint filed with the Commission July 1, 1986, the complainants alleged that the respondent had convened an illegal executive session on June 26, 1986, and that the stated purpose for the executive session was not a permissible subject for an executive session under 1-18a(e), G.S.


3. The complainants requested that any and all actions taken by the respondent in such meeting be declared null and void, and that it be instructed under sanction of civil penalty provided under 1-21i(b), G.S., that the business of its June 26, 1986 meeting be conducted in open session.


4. On May 19, 1986 the respondent held an executive session to discuss personnel matters.


Docket #FIC 86-188 page two


5. During the May 19, 1986 executive session, the respondent discussed the tendering of the resignation of Bernard J. Lindauer, assistant superintendant of schools, who had been a focal point of publicity as a result of his arrest.


6. In April 1986, Mr. Lindauer had accepted accelerated rehabilitation on a reduced charge; thereafter, the respondent had determined that his termination was necessary and in its best interests.


7. At the May 19, 1986 meeting, the respondent unanimously adopted a motion that it accept the resignation of Mr. Lindauer, effective June 30, 1986, on the condition that acceptable terms be reached between the respondent's counsel and Mr. Lindauer.


8. At the May 19, 1986 meeting, the respondent also authorized its president to execute any documents necessary to effectuate or implement the agreement negotiated between the parties on behalf of the respondent.


9. On May 20, 1986, the respondent's president and Mr. Lindauer signed an agreement entitled "Terms of Bernard J. Lindauer'III's [sic] Resignation."


10. On June 23, 1986, five members of the respondent called for a special meeting.


11. The notice of the special meeting, which was held on June 26, 1986, provided that the matters to be discussed would include:


a. a definition of full time employment;


b. consulting work;


c. fringe benefits;


d. board protection against suit;


e. other protections;


f. discussion of legality of the executive session of May 19, 1986.


12. At the June 26, 1986 special meeting, the respondent moved to go into executive session to discuss Mr. Lindauer's resignation agreement.


Docket #FIC 86-188 page three


13. The discussion in executive session lasted approximately six hours.


14. On June 27, 1986, following this executive session, the respondent signed a second resignation agreement with Mr. Lindauer, the original one having been rescinded.


15. It is found that the respondent did not wish to reach a decision to rescind the original agreement before it had developed a substitute agreement because the former action was contingent on the latter action.


16. The respondent contends that the June 26, 1986 executive session was proper under 1-18a(e)(1), G.S.


17. It is found that the discussion at the June 26, 1986 executive session focused upon Mr. Lindauer's performance in his employment; the effect of his arrest and the disposition of his case; what the respondent could expect as a result of Mr. Lindauer's continued functioning as an employee of the school system; what would happen if the resignation agreement were voided; what would happen if the respondent were forced into a hearing to terminate his employment; and what was required to get Mr. Lindauer to rescind the first agreement and to sign a second resignation agreement.


18. It is concluded that the notice of the June 26, 1986 special meeting failed to describe adequately the purpose of the meeting which was the renegotiation of the resignation agreement.


19. It is also concluded that discussion and analysis of a contract is not a proper purpose for an executive session under 1-18a(e)(1), G.S., and that, therefore, the motion to go into executive session to discuss Mr. Lindauer's resignation agreement did not state a proper purpose for an executive session.


20. It is further concluded, however, that under the highly unusual circumstances of this case, the discussion of the renegotiation of the agreement was inextricably entwined with the discussion of the performance, evaluation, and dismissal of a public employee, and that, therefore, neither a civil penalty nor a public reenactment of the respondent's June 26, 1986 executive session is appropriate in this case.


Docket #FIC 86-188 page four


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


1. The respondent shall henceforth comply strictly with the provisions of 1-21, G.S., by convening in executive session only for a proper purpose, as set forth in 1-18a(e), G.S., and by adequately stating that purpose in the vote to convene in executive session.


2. This decision is not to be construed as an expansion of the limited purposes for an executive session set forth at 1-18a(e)(1), G.S., to include contract negotiations. Rather, it is limited to the unusual circumstances of this case.


Approved by order of the Freedom of Information Commission at its regular meeting of January 14, 1987


Catherine I. Hostetter

Acting Clerk of the Commission