FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Paul Choiniere and The Day,

 

Complainants

 

against Docket #FIC 88-268

 

Norwich City Council,

 

Respondent October 26, 1988

 

The above-captioned matter was heard as a contested case on August 16, 1988, along with Docket #FIC 88-230, Docket #FIC 88-239 and Docket #FIC 88-246, 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. At its June 20, 1988 regular meeting, the respondent voted 10 to 1, with Councilman Remondi opposed, to convene in executive session.

 

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

 

4. By letter of complaint dated June 30, 1988 and filed with the Commission on July 1, 1988, the complainants alleged that the respondent violated 1-18a(e)(2), 1-21(a) and 1-21(g), G.S., in that:

 

a. It failed to state specifically the subject of "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.

 

c. It convened in executive session for the purpose of discussing pending litigation when only a threat of litigation existed.

 

Docket #FIC 88-268 Page 2

 

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

 

5. The respondent claims that:

 

a. It 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 corporation counsel at the executive session was necessary for the entire executive session.

 

6. At the hearing, the respondent agreed to submit to the Commission copies of the agenda and the minutes of its June 20, 1988 regular meeting, as after-filed exhibits.

 

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

 

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

 

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

 

10. It is concluded that the respondent 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.

 

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

 

12. 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."

 

13. It is concluded that to the extent the respondent convened in executive session to discuss a "conflict of interest," it violated 1-18a(e) and 1-21(a), G.S., by failing to state a proper purpose for the executive session.

 

Docket #FIC 88-268 Page 3

 

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

 

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

 

16. With respect to the discussion of corporation 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.

 

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

 

18. 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 is a party within the meaning of 1-18a(e)(2), G.S.

 

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

 

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

 

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

 

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

 

Docket #FIC 88-268 Page 4

 

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

 

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

 

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