In the Matter of a Complaint by FINAL DECISION


Charles B. Browne, III,




against Docket #FIC 88-105


Newtown Police Commission,


Respondent June 22, 1988


The above-captioned matter was heard as a contested case on May 10, 1988, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The complainant appeared through an authorized representative, James Blakely, the complainant in #FIC 88-106, James R. Blakely v. Newtown Board of Police Commissions. Docket #FIC 88-105 and Docket #FIC 88-106 were consolidated for hearing.


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 meeting on December 22, 1987 to discuss selection of a new police chief and held meetings on January 14, 1988 and February 11, 1988 to discuss the new police chief's contract.


3. On March 14, 1988 the Newtown board of selectmen discussed the third in a series of proposed contracts between the town and the police chief. The board of selectmen thereafter referred the contract to the respondent for its consideration. The contract forwarded to the respondent by the board of selectmen had been signed by the first selectman, the chairman of the respondent and the police chief.


4. On or about March 14, 1988 the respondent posted notice of a special meeting to be held March 17, 1988. The notice stated that the special meeting would be held in executive session "for the purpose of discussing the employment contract of [police] Chief Michael A. DeJoseph."


Docket #FIC 88-105 Page Two


5. On March 17, 1988 the respondent convened a special meeting, in closed session, at approximately 7:40 p.m. At approximately 8:15 p.m. the respondent voted to convene in public session, following which it voted to accept the police chief's contract.


6. By letter of complaint filed with the Commission on March 23, 1988 the complainant appealed the March 17, 1988 actions of the respondent, claiming that because the notice of special meeting stated that the meeting would be held in executive session, without public comment, he did not attend. The complainant claimed that a vote on the matter of the police chief's contract, when none was indicated in the notice of special meeting, was illegal.


7. The complainant asked the Commission to declare null and void the respondent's March 17, 1988 vote on the police chief's contract and to require that a time for public comment regarding the police chief's contract be established, with public notice.


8. It is found that an executive session may only be held following the convening of a public session, even when an agency intends to conduct all discussions in executive session.


9. It is, therefore, found that the respondent was not precluded from convening in public session on March 17, 1988, although the notice of meeting referred only to an executive session.


10. Although not alleged in the complaint, the Commission notes that the respondent failed to open the March 17, 1988 meeting in public session, as required by 1-21(a), G.S.


11. It is further found that the description of the purpose of the March 17, 1988 special meeting was not so narrow as to have precluded action on the police chief's contract.


12. It is found, however, that the effect of the notice stating that the March 17, 1988 meeting would be held in executive session was to discourage members of the public from attending such meeting.


13. It is, therefore, concluded that the respondent violated 1-21(a), G.S. when it provided a notice of its March 17, 1988 special meeting which had the effect of discouraging the public from attending the meeting and thereby denying access to both the executive session and public portions of such meeting.


Docket #FIC 88-105 Page Three


14. The respondent claims that an order declaring its March 17, 1988 vote null and void is not appropriate because its review and approval of the contract were conducted in an advisory capacity only. The respondent claims that acceptance of the police chief's contract is within the purview of the board of selectmen, not the respondent.


15. It is found that the action to which the public was denied access was a vote, without discussion, to accept the police chief's contract.


16. The respondent indicated no inclination to accept public comment or to conduct its discussions in public absent a request from the police chief to do so. Nothing in the Freedom of Information Act requires the respondent to accept public comment concerning the police chief's contract or any other matter.


17. It is concluded that an order declaring null and void the March 17, 1988 vote of the respondent would not in any significant way enhance public input into, or public understanding of, the process leading to the respondent's vote to accept the police chief's contract.


18. The Commission, therefore, declines to declare null and void the respondent's March 17, 1988 vote to accept the police chief's contract or to require the respondent to accept public comment, as requested by the complainant.


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


1. The respondent henceforth shall refrain from posting or publishing notices of meetings or agendas which state or imply that such meetings will be held entirely in executive session. No meeting may be conducted entirely in executive session under the Freedom of Information Act, and meeting notices which are so phrased are misleading and needlessly discourage public attendance.


2. The Commission notes that nothing in the Freedom of Information Act prohibits a public agency from indicating in an agenda or a notice of special meeting that an executive session will be proposed at a meeting.


Approved by order of the Freedom of Information Commission at its special meeting of June 22, 1988.


Catherine H. Lynch

Acting Clerk of the Commission