In the Matter of a Complaint by FINAL DECISION


Stephen J. Winters and Post Telegram Newspapers,




against Docket #FIC 88-233


Derby Board of Aldermen,


Respondent October 26, 1988


The above-captioned matter was heard as a contested case on August 11, 1988, 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 convened in executive session during its meeting of June 9, 1988.


3. By letter dated June 20, 1988, and filed with the Commission on June 21, 1988, the complainants appealed to the Commission, alleging the executive session was held for an improper purpose and that the minutes of the meeting were not available on time.


4. The respondent claims that the executive session was held to discuss a permissible personnel issue and that the delay in preparing minutes is unavoidable from time to time due to a limited staff.


5. It is found that at the time in question the Derby fire services department's budget included the budget for the town fire marshal.


6. It is found that the Derby fire marshal requested that the respondent separate his budget from that of the fire services department.


Docket #FIC 88-233 Page Two


7. It is found that the respondent convened in executive session to discuss the ramifications of granting this request, including setting up two separate departments with two separate budgets, how specific duties might be allocated between the two departments, and its effect on salaries.


8. It is found that such a discussion is not a purpose permitted for executive sessions under 1-18a(e), G.S.


9. Thus it is concluded that the respondent violated 1-21(a), G.S., by convening in executive session for a purpose not permitted under 1-18a(e), G.S.


10. It is further found that the minutes of the respondent's June 9, 1988, meeting were not made available to the public within seven days of the meeting.


11. It is also found that the minutes do not state the purpose of the executive session.


12. In addition it is found that staff limitations do not excuse the respondent from the minutes requirements of 1-21(a), G.S.


13. It is concluded, therefore, that the respondent further violated 1-21(a), G.S., by failing to have minutes available within seven days and by failing to include in them the purpose of the executive session.


14. It is found that in addition to members of the respondent, the respondent's attorney, the respondent's secretary, the fire marshal and Fire Commissioner Ahearn were present throughout the executive session.


15. It is found that the non-members' attendance was not limited to the period for which their presence was necessary to present testimony or opinion to the respondent.


16. Thus it is concluded that the respondent violated 1-21g(a), G.S.


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


Docket #FIC 88-233 Page Three


1. The respondent henceforth shall act in strict compliance with the requirements of 1-21(a) and 1-21g(a), G.S.


2. The respondent forthwith shall schedule an educational workshop on the Freedom of Information Act's requirements, to be given by a Commission staff attorney and to take place no later than 60 days after the mailing of the notice of the final decision in this matter.


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