In the Matter of a Complaint by FINAL DECISION


Karen Avitabile and The Middletown Press,




against Docket #FIC 88‑375


Personnel Policy Board of the Town of Durham,


Respondent December 20, 1988


The above‑captioned matter was heard as a contested case November 1, 1988, at which 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 respondent is a public agency within the meaning of 1‑18a(a), G.S.


2. By letter filed September 14, 1988, the complainants alleged numerous violations of the requirements of the Freedom of Information Act in connection with a gathering of less than a quorum of the respondent which took place August 24, 1988.


3. The complainant alleged that on August 24, 1988 the respondent held an executive session for a purpose not permitted under 1‑18a(e), G.S., that it failed to vote to go into executive session as required by 1‑21, G.S., and that it failed to file minutes for the August 24, 1988 meeting.


4. The complainants alleged, in addition, the respondent voted in executive session and failed to record the vote.


5. The respondent denied the allegations, claiming that the gathering which was the subject of the complaint was not a meeting within the meaning of 1‑18a(b), G.S.


6. It is found that the respondent has advisory power only.


7. It is found that the gathering which took place on August 24, 1988, consisted of two members of the respondent, and the first selectwoman.


Docket #FIC 88‑375 page 2

8. It is found that, on August 24, 1988, less than a quorum of the respondent gathered to hear the presentation of a consultant who was bidding on a contract to develop a plan for the town's service needs.

9. It is found that the first selectwoman is an ex‑officio member of the board.


10. It is found that the complainant Karen Avitabile, herein, permitted herself to be ushered out of the room after a recess, because she believed the respondent wished to hold an executive session to discuss the selection of a consultant.


11. It is found that, after the door to the room was closed, the two members of the board and the first selectwoman discussed the consultants who had presented applications, and reached a consensus regarding the need to further evaluate one applicant.


12. It is found that during its discussion of the consultants the respondent decided to further evaluate the references of one consultant who had applied for the job.


13. It is concluded that the gathering of the respondent on August 24, 1988, was a meeting within the meaning of 1‑18a(b), G.S., because, despite the absence of a quorum, it was a proceeding of the agency to consider the selection of a consultant.


14. It is concluded that the discussion of the consultants' qualifications was an executive session, but that it was not held for a proper purpose under 1‑18a(e), G.S.


15. It is concluded that the respondent is required under 1‑19(a), G.S., to provide a record of its proceedings on August 24, 1988.


16. It is found that it is not necessary to consider the issue whether a motion to go into executive session was required, because the executive session itself was illegal.


17. It is found that the consensus of the respondent at its August 24, 1988, meeting to further evaluate the references given by one consultant was not a matter requiring a vote, because there was no quorum present; however, the consensus reached should be reflected in the minutes.


18. The complainants alleged that the agendas of meetings of the respondent for the last six months failed to properly specify the matters discussed at its meetings.


19. It is found that the Commission has no jurisdiction over claims regarding agendas filed more than thirty days prior to the filing of the complainant's complaint.


Docket #FIC 88‑375 page 3


20. All other allegations contained in the complaint were withdrawn by the complainants at hearing.


21. The complainants requested that the Commission impose a civil penalty upon the respondent.


22. It is found, since this complaint was filed but prior to the date of hearing in this matter, that a substantial number of public officials from Durham, including two members of the respondent and the first selectwoman, attended a Freedom of Information workshop.


23. It is found that, under the circumstances of this case, consideration of a civil penalty is inappropriate.


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


1. The respondent shall henceforth comply with the requirements of 1‑18a(e), 1‑19(a), and 1‑21, G.S.

2. The respondent shall create minutes of the August 24, 1988 meeting as required by 1‑19(a), G.S.


3. Both the respondent and the complainants are urged to regard their interactions over the Freedom of Information Act as a learning process. The act is complicated and not entirely clear. A full appreciation of its application requires time and some study. The public officials who appeared at the hearing showed patience and a conciliatory attitude regarding the complainants' efforts to get compliance with the Freedom of Information Act. The Commission hopes that the same qualities will color the relationships of the parties with each other in the future.


Approved by order of the Freedom of Information Commission at its special meeting of December 20, 1988.



Catherine H. Lynch

Acting Clerk of the Commission