In the Matter of a Complaint by FINAL DECISION


Philip H. Schnabel




against Docket #FIC 87-202


Rocky Hill Town Council


Respondent December 15, 1987


The above-captioned matter was heard as a contested case on August 24, 1987, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-18a(a), G.S.


2. By complaint filed July 21, 1987, the complainant alleged that the respondent held a special meeting on June 30, 1987 at which time it discussed his performance in an executive session without giving the complainant an opportunity to require that the discussion be held in public.


3. The complainant is chief of police in Rocky Hill.


4. The agenda for the special meeting of June 30, 1987, listed specifically the following items in addition to the prayer and the pledge of allegiance:

A. Senior/Community Center Site, Authorize Negotiations

B. 1987-88 Nonbargaining Salaries

C. Explore Possible Study of Police Operations


5 The complainant's salary is set by action of the respondent, and was included for consideration at the meeting under "1987-88 Nonbargaining Salaries".


6. Beginning in April 1987, there has been controversy in Rocky Hill over a decision to recall a cruiser from responding to a call, and whether concerns over racism justified that recall.


Document #FIC 87-202 Page 2


7. In May and June 1987, individual Council members expressed dissatisfaction to the town manager over the complainant's performance, including his handling of the cruiser incident.


8. The town manager requested that the labor counsel for the town prepare an opinion letter concerning the first amendment and free speech rights of public employees, as those legal issues relate to action which the respondent might consider with respect to the complainant's employment, including withholding a pay increase.


9. Prior to considering items B and C on the agenda, one councilman moved to go into executive session to discuss personnel matters.


10. The motion to hold an executive session to discuss personnel matters was defeated by a 5-4 vote.


11. A motion to go into executive session to discuss matters of attorney-client privilege with the town labor counsel was then adopted.


12. The respondent then adjourned into executive session to discuss a written opinion of the town's labor counsel.


13. The respondent offered the opinion for in camera inspection.


14. The hearing officer refused to accept the offer for in camera inspection pursuant to 1-21j-35 of the regulations of the Commission.


15. The respondent, its labor counsel and the town manager discussed the written opinion in executive sesseion.


16. The discussion also included matters of the complainaint's performance as related to the legal issues bearing upon possible action with respect to the complainant's employment.


17. The complainant was not notified that his performance would be discussed in executive session.


18. The executive session lasted forty-two minutes.


Document #FIC 87-202 page 3


19. Item C on the agenda, which concerned the study of police operations, was considered before item B, which concerned pay raises.


20. After the executive session the complainant addressed the respondent concerning the possible study of police operations by a consultant and the respondent voted to authorize a preliminary study.


21. Thereafter, in open session the respondent moved and unanimously approved that the raise of the complainant be held in abeyance pending the conclusion of the study of police operations.


22. The respondent claimed that the executive session was proper under 1-18a(e)(5), G.S., as a discussion of a written opinion of counsel exempt from disclosure under 1-19(b)(10).


23. The respondent further claimed that since the executive session was proper under 1-18a(e)(5), G.S., that the complainant did not have a right pursuant to 1-18a(e)(1), G.S. to require that the discussion of his performance as it related to legal issues concerning his employment be held in public.


24. It is found that the respondent failed to prove that the discussion of legal issues in the memorandum, which it alleged was privileged by the attorney-client privilege, could not have been separated from its discussion of the performance of the complainant and the question of whether to increase his salary.


25. It is further found that the respondent violated 1-18a(e)(1), G.S., by failing to notify the chief concerning the right to require a discussion of his performance to be held in public which is granted him under 1-18a(e)(1), G.S.


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


1. The vote of the respondent on June 30, 1987, to withhold the complainant's pay increase pending conclusion of the consultant's study is declared null and void.


2. The Commission does not make a finding regarding the adequacy of the notice of special meeting because it was not raised in the complaint. However, the respondent should note


Document Number #FIC 87-202 Page 4


that 1-21 requires that no other business be transacted at a special meeting except that which is listed on the agenda. The Commission observes that since consideration of the memorandum of the labor counsel was not included in the notice, that matter should not have been treated at the special meeting.


Approved by order of the Freedom of Information Commission at its special meeting of December 15, 1987.



Catherine H. Lynch

Acting Clerk of the Commission