In the Matter of a Complaint by FINAL DECISION


Lynne Royce, Edward Frede and The Danbury News-Times,




against Docket #FIC 87-211


Board of Education of the City of Danbury,


Respondent January 13, 1988


The above-captioned matter was heard as a contested case on September 8, 1987, at which time the complainants 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. The respondent held a special meeting on July 9, 1987, to interview candidates and select an "interim board member" to fill a vacancy left by the death of one of its members. At such meeting the respondent interviewed five candidates in public session, then convened in executive session for approximately ten minutes to discuss the candidates, following which it reconvened in public session and voted to fill the vacancy.


3. The members of the respondent are elected pursuant to local charter and 9-203, G.S., et seq. Section 10-219, G.S. provides that vacancies occurring in the office of any member of a local board of education shall be filled by the remaining members of the board until the next regular town election.


4. By letter of complaint filed with the Commission on July 30, 1987, the complainants alleged that the respondent's July 9, 1987, executive session to discuss candidates for an elective position violated the Freedom of Information Act. The complainants requested orders declaring null and void the respondent's action on the vacancy and requiring the respondent to conduct a public discussion of the matters discussed in the July 9, 1987, executive session.


Docket #FIC 87-211 Page Two


5. At hearing the complainants requested the imposition of a civil penalty against the respondent on the ground that on June 1, 1987 the complainants had filed a complaint with the Commission, docketed as FIC #87-160, alleging that the respondent improperly interviewed interim board member candidates in executive session. A hearing on such complaint was held on July 13, 1987 and a Report of Hearing Officer was issued on August 12, 1987.


6. The respondent claims that the executive session was properly convened to discuss the appointment of a public officer or employee within the meaning of 1-18a(e)(1), G.S. and that a civil penalty is not appropriate because the actions of the respondent comported with the plain wording of such statute and because on July 9, 1987, there had been no determination by the Commission of the validity of the complaint in FIC #87-160.


7. It is found that the respondent's July 9, 1987, executive session was not held to discuss the appointment of a public officer or employee within the meaning of 1-18a(e)(1), G.S. Rather, it was held to discuss the filling of a vacancy in the respondent's membership, which, under ordinary circumstances, is an elective office.


8. It is further found that the filling of a vacancy on a board whose membership is elected is not a proper purpose for an executive session within the meaning of 1-18a(e)(1)-(5), G.S.


9. It is concluded that the respondent violated 1-18a(e) and 1-21(a), G.S. when, on July 9, 1987, it convened in executive session to discuss candidates for the position of interim board member.


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


1. The respondent, within two weeks of the Final Decision in this matter, shall schedule a special meeting at which it shall provide a public forum for questions concerning the five candidates for the position of interim board member, and for a discussion of the process by which the respondent reached its decision on the filling of the vacancy.


2. The respondent henceforth shall convene in executive session only for one or more of the proper purposes listed at 1-18a(e), G.S.


Docket #FIC 87-211 Page Three


3. The Commission declines to declare the respondent's July 9, 1987 action null and void or to impose a civil penalty against the respondent.


Approved by order of the Freedom of Information Commission at its regular meeting of January 13, 1988.



Catherine H. Lynch

Acting Clerk of the Commission