FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

John O. Bailey, Richard Conrad, Adrienne Hedgspeth, and the Jackson Newspapers,

 

Complainants Docket #FIC 86-300

 

against

 

New Haven Board of Education and New Haven Superintendent of Schools,

 

Respondents January 14, 1987

 

The above-captioned matter was heard as a contested case on November 24, 1986 at which time the complainants 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 dated July 10, 1986, the complainants requested access to inspect or copy the 1986 performance evaluation of the respondent superintendent (hereinafter "performance evaluation").

 

3. By letter dated July 29, 1986, the respondent board stated that there was no written performance evaluation.

 

4. By letter dated September 30, 1986, the complainants renewed their request for the performance evaluation.

 

5. By letter dated October 1, 1986, the respondent superintendent enclosed a copy of the respondent board's letter of July 29, 1986 stating that there was no written performance evaluation.

 

6. By letter of complaint dated October 29, 1986 and filed with the Commission on October 30, 1986, the complainants alleged that the respondents violated the Freedom of Information Act in their refusal to release the performance evaluation.

 

Docket #FIC 86-300 Page 2

 

7. At the hearing, the respondents moved to dismiss the complaint on the ground that the complainants had not filed their notice of appeal within the time limits of 1-21i(b), G.S.

 

8. Specifically, the respondents claim that the 1-21i(b), G.S., time limits for an appeal to the Commission should commence as of July 29, 1986, the date of their denial of the complainants' first request, and not on October 1, 1986, the date of their denial of the complainants' second request.

 

9. It is found that there is no provision in the Freedom of Information Act which precludes the complainants from renewing their request to inspect or copy public records.

 

10. It is concluded, therefore, that the complainants have complied with 1-21i(b), G.S., by filing a timely notice of appeal. As a result, the respondents' motion to dismiss is hereby denied.

 

11. The respondents further claim that there are no written records of the performance evaluation because the evaluation was conducted orally in a series of executive sessions held pursuant to 1-18a(e)(1), G.S.

 

12. It is found that on several occasions the respondents convened in executive session to discuss the performance evaluation in order to avoid the disclosure of documents that might be misinterpreted by the public.

 

13. Pursuant to 10-157, G.S., the respondent board is obliged to evaluate the performance of the respondent superintendent according to guidelines and criteria agreed upon by the board and the superintendent.

 

14. The respondent superintendent's contract for 1985-1988 provides with respect to the evaluation process that "within 30 days after the delivery of the written evaluation to the superintendent, the board in executive session shall meet with the superintendent to discuss the evaluation."

 

15. The respondent superintendent's contract also provides that it may be amended only by a written agreement signed by both parties.

 

16. The respondents claim that the 1986 evaluation process for the respondent superintendent was modified by an oral agreement that eliminated a written evaluation.

 

Docket #FIC 86-300 Page 3

 

17. On November 10, 1986, the respondent board issued a statement concluding that the respondent superintendent's performance for the 1985-1986 year was excellent and explaining the changes in the 1986 evaluation process.

 

18. Although the evaluation process was an oral one, the November 10, 1986 statement of the respondent board states that the board selected a performance evaluation form and board members used this form to evaluate the superintendent's performance.

 

19. Based upon the evidence presented, the Commission cannot determine whether individual members of the respondent board used written forms during the 1986 evaluation process.

 

20. If written performance evaluation forms were used by members of the respondent board, it is concluded that these documents are public records within the meaning of 1-18a(d), G.S. and disclosable under 1-15 and 1-19(a), G.S.

 

21. It further is noted that the respondent board's minutes of its November 10, 1986 meeting indicate that a non-agency member recorder was present during an executive session held on that date.

 

22. Based upon the evidence presented, the Commission cannot determine whether the recorder has any records concerning the performance evaluation.

 

23. It is found, however, that if the recorder has any performance evaluation records, it is concluded that the records are public records within the meaning of 1-18a(d),G.S., and disclosable under 1-15 and 1-19(a), G.S.

 

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

 

1. The respondent board shall forthwith provide the complainants with an affidavit from each of its members not testifying at the hearing in this matter, stating whether he or she has any records relating to the performance evaluation.

 

Docket #FIC 86-300 Page 4

 

2. The respondent board shall forthwith provide the complainants with an affidavit from each non-agency member present at the executive sessions at which the performance evaluation was discussed, stating whether he or she has any records relating to the performance evaluation.

 

3. If any of the affidavits provided for in paragraphs 1 and 2 of the order, above, states that records relating to the performance evaluation exist, the respondent board shall forthwith provide the complainants with a copy of such records.

 

4. This case compels the Commission to comment on the respondents' ill-conceived efforts to evade their responsibilities under the Freedom of Information Act and to abrogate their duties as public officials. The respondent board is a public agency accountable not to itself, but to the people of New Haven. One of its most important functions is to evaluate the superintendent of schools, the school system's chief executive officer. By abolishing the written evaluation process, the board leaves the citizens of New Haven without a meaningful assessment of the superintendent's performance for the 1985-1986 year and conceals from public scrutiny its decision-making process. The board has acted irresponsibly by eliminating a written performance evaluation record of such a high level public official merely to avoid public oversight. In this case, the board, in effect, has left itself powerless to take any disciplinary action concerning the superintendent's performance as provided by contract. Moreover, the Commission believes that the respondents' fear of the public's reaction to the evaluation process insults the intelligence of the citizens of New Haven and has no place in a representative democracy.

 

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