FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Mimi Hall and the Norwich Bulletin,

 

Complainants

 

against Docket #FIC 88-230

 

Norwich City Council and Norwich Corporation Counsel Konstant Morell,

 

Respondents October 26, 1988

 

The above-captioned matter originally was heard as a contested case on August 8, 1988, at which time the parties moved to consolidate the matter with Docket #FIC 88-239, Docket #FIC 88-246, and Docket #88-268, all scheduled to be heard on August 16, 1988. The Hearing Officer granted the motion and the case was continued to August 16, 1988, at which time the complainants and 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. At its June 20, 1988 regular meeting, the respondent council voted 10 to 1, with Councilman Remondi opposed, to convene in executive session.

 

3. The respondent council convened in executive session for the stated purposes of discussing "pending litigation and conflict of interest."

 

4. By letter of complaint dated June 21, 1988 and filed with the Commission on June 22, 1988, the complainants alleged that the respondent council violated 1-18a(e)(2), 1-21(a) and 1-21(g), G.S., in that:

 

a. It failed to state publicly the subject of the "pending litigation" discussed in executive session.

 

b. It convened in executive session to discuss a "conflict of interest," which is not a proper purpose for an executive session.

 

Docket #FIC 88-230 Page 2

 

c. It convened in executive session for an improper purpose since no lawsuit had been filed at the time of its June 20, 1988 regular meeting.

 

d. It failed to limit the attendance of the city manager and the respondent counsel at the executive session to the time necessary for their testimony.

 

5. By letter dated July 11, 1988 and filed with the Commission on July 13, 1988, the complainants requested the imposition of a civil penalty against the respondents.

 

6. The respondents claim that:

 

a. The respondent council permissibly convened in executive session under 1-18a(e)(1) and 1-18a(e)(2), G.S.

 

b. The presence of the city manager and the respondent counsel was necessary for the entire executive session.

 

c. The complainants did not timely raise their request for a civil penalty with the Commission.

 

7. At the hearing, the respondents agreed to submit to the Commission copies of the agenda and the minutes of the respondent council's June 20, 1988 regular meeting, as after-filed exhibits.

 

8. On August 24, 1988, the Hearing Officer designated the copies of the agenda and the minutes of the respondent council's June 20, 1988 regular meeting as Respondents' Exhibits #2 and #3 respectively.

 

9. It is found that the respondent council convened in executive session at the requests of the city manager and the respondent counsel.

 

10. It is found that the statement "pending litigation" was too vague to communicate clearly to the public the actual purpose of the executive session.

 

11. It is concluded that the respondent council violated 1-21(a), G.S., by failing to state publicly the reason for the executive session in a manner that clearly communicated it to the public.

 

Docket #FIC 88-230 Page 3

 

12. The Commission notes that the respondent council should have stated the reason for the executive session in a way that clearly communicated to the public the nature of the litigation.

 

13. It is found that there is no provision in the Freedom of Information Act which allows an agency to convene in executive session to discuss a "conflict of interest."

 

14. It is concluded that to the extent the respondent council convened in executive session to discuss a "conflict of interest," it violated 1-21(a), G.S., by failing to state a proper purpose for the executive session.

 

15. It is found that at the executive session the respondent council discussed the performance of the respondent counsel as it related to his recommendation that the Personnel Pension Board properly could hear a claim filed by a police officer.

 

16. It is found that at the executive session the respondent council also discussed strategies of avoiding a potential lawsuit with the city's housing authorities, including a possible merger of the housing authorities.

 

17. With respect to the discussion of the respondent counsel's performance, it is found that the discussion concerned the performance of a public employee within the meaning of 1-18a(e)(1), G.S.

 

18. It is concluded that, with respect to the discussion of the respondent counsel's performance, the respondent council convened in executive session for a permissible purpose under 1-18a(e)(1), G.S.

 

19. With respect to the discussion of the city's housing authorities, it is found that there are no pending claims or litigation to which the respondent council is a party within the meaning of 1-18a(e)(2), G.S.

 

20. It is concluded that, with respect to the discussion of the city's housing authorities, the respondent council did not convene in executive session for a permissible purpose, in violation of 1-18a(e) and 1-21(a), G.S.

 

21. It is found that both the city manager and the respondent counsel were invited to attend the executive session and were present during the entire executive session.

 

Docket #FIC 88-230 Page 4

 

22. It is found that to the extent that the respondent counsel's presence was necessary to present testimony regarding his performance, the respondents did not violate 1-21g(a), G.S.

 

23. Since the discussion of the housing authorities in executive session was not permissible, the Commission declines to address the issue of the presence of the respondent counsel and the city manager at that portion of the executive session.

 

24. It is found that the complainants' request for a civil penalty was timely raised and the Commission, therefore, will address that issue.

 

25. The Commission takes administrative notice of its record and final decision in Docket #FIC 87-297.

 

26. It is found that pursuant to the Commmission's order in Docket #FIC 88-297, the members of the respondent council attended a freedom of information workshop held on May 4, 1988.

 

27. It is found that the violations described in paragraphs 11, 14 and 20, above, were made without reasonable grounds within the meaning of 1-21i(b), G.S.

 

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

 

1. Henceforth, the respondents shall act in strict compliance with the requirements of 1-18a(e) and 1-21(a), G.S.

 

2. The respondent counsel Konstant Morell and the following members of the respondent council are hereby ordered to appear before the Commission at a date to be determined to show cause why a civil penalty should not be imposed pursuant to 1-21i(b), G.S.: Roderick Arpin, Linda Becker, Michael Bohara, Robert Booth, Nancy DePietro, Mark Eaton, Louis Heller, Bonita Hong, Beverly Raymond, and Charles Witt.

 

Approved by order of the Freedom of Information Commission at its special meeting of October 26, 1988.

 

Catherine H. Lynch

Acting Clerk of the Commission