In the Matter of a Complaint by FINAL DECISION


Mark J. Anderson, Suzanne Simoneau and The Bristol Press,




against Docket #FIC 88-187


Chairman, Bristol Housing Authority, and Bristol Housing Authority,


Respondents May 31, 1988


The above-captioned matter was scheduled for hearing on May 26, 1988, pursuant to the expedited procedure set forth at 1-21i(b), G.S., which applies to a notice of appeal concerning an announced agency decision to meet in executive session. At that time the parties appeared and presented evidence 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 May 23, 1988, the complainants alleged that the respondents violated the Freedom of Information Act when they met in executive session on May 17, 1988 and that a similar violation would occur on May 24, 1988, when the respondents would hold another executive session for union negotiations and personnel matters concerning a complaint against a commissioner.


3. In the letter the complainants requested an expedited hearing and asked the Commission to enjoin the Bristol Housing Authority from meeting in an illegal executive session on May 24, 1988.


4 Prior to the Commission hearing on May 26, 1988 the respondents postponed their special meeting scheduled for May 24, 1988 until this Commission issued a final decision in this matter.


5. It is found that the agenda for the meeting on May 17, 1988, stated that the respondent authority would hold an executive session to discuss union negotiations.


6. It is found that union negotiations are not a proper


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purpose for an executive session within the meaning of 1-18a(e), G.S.


7. The respondents concede that the motion for executive session did not set forth a proper purpose for the executive session as required by 1-18a(e) and 1-21, G.S.


8. It is found that on May 17, 1988, the respondents held an executive session without stating a proper purpose for the executive session as required by 1-18a(e) and 1-21, G.S.


9. The respondents claim, however, that the executive session on May 17, 1988 was proper as discussion of the performance of a public official.


10. The respondents claim further that the executive session which they propose to hold is proper for the same reason that the executive session on May 17, 1988, was proper.


11. It is found that the May 17, 1988, executive session was held to hear charges that a commissioner of the respondent, who is also a tenant in housing administered by the housing authority, violated numerous rules of the housing authority, and also federal tax law.


12. It is found that some of the alleged misconduct constituted volations of the lease between the housing authority and the commissioner in question.


13. It is found that the usual practice of the respondents is to handle alleged violations of the rules and of leases administratively.


14. It is found that the respondents have never met to consider allegations that individual tenants have violated housing authority rules.


15. It is found that the customary practice is for the staff of the respondent authority to investigate alleged violations, to notify tenants of their findings, and if corrections are not made, to initiate eviction proceedings.


16. It is found that the discussion at the May 17, 1988 executive session was held to determine what to do regarding the serious charges that a Commissioner of the respondent authority had violated rules of the authority and federal tax laws.


17. It is found that pursuant to 8-43, G.S., a commissioner of the respondent may not be removed without an opportunity to be heard before the mayor, and at least ten days prior to such hearing, the commissioner shall have been given a


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copy of the charges.

18. It is found that at its May 17, 1988, meeting, the respondent determined that the charges should be reduced to writing and presented to it at a special meeting on May 24, 1988.


19. It is concluded that the respondent did hold its May 17, 1988 meeting for a purpose which is proper under 1-18a(e)(1), G.S.


20. It is found that while the May 24, 1988, meeting was never held, the notice for that meeting listed the purpose of the intended executive session as discussion of union negotiations and personnel matters.


21. It is found that this notice improperly treats the executive session as a certainty because an executive session can only be initiated pursuant to 1-21, G.S., by a vote of two thirds of those present and voting at the meeting at which the executive session is to be held.


22. It is found, further, that the notice fails to state accurately the proper purpose for the executive session which is discussion of the performance of and consideration of the possible removal of a public officer pursuant to 8-43, G.S.


23. It is concluded, however, based upon the facts found herein, that the respondents' decision to meet in executive session concerning the charges against the commissioner is not in violation of 1-18a(e) and 1-21, G.S.


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


1. Henceforth, the respondents shall not treat its discussions of strategy and negotiations with respect to collective bargaining in executive session.


2. Henceforth, the respondent shall provide an accurate statement of the purposes of its discussions for which executive sessions may be held both in its notices for special meetings, its agendas for regular meetings, and its minutes.


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3. The respondent shall henceforth use lawful procedure for initiating executive sessions, by making a motion stating a proper purpose under 1-18a(e), G.S., by requiring a vote of two-thirds of those members present and voting before going into executive session, and by not treating the executive session as a certainty in its agendas and notices of special meetings.


Approved by order of the Freedom of Information Commission at its special meeting of May 31, 1988.


Catherine H. Lynch

Acting Clerk of the Commission