In the Matter of a Complaint by FINAL DECISION


Robert Cox,




against Docket #FIC 88-165


Ridgefield Board of Education,


Respondent January 25, 1989


The above-captioned matter was heard as a contested case on October 28 and November 2, 1988, at which times the complainant 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 regular meeting of April 25, 1988.


3. By letter dated April 26, 1988, and filed with the Commission on April 28, 1988, the complainant appealed to the Commission, alleging the respondent met in executive session for an impermissible purpose. The complainant requested that the Commission declare null and void the vote on a new policy for the high school literary magazine taken at the meeting.


4. The respondent claims that it convened in executive session to discuss:


a. a pending claim pursuant to 1-18a(e)(2), G.S., and,


b. pursuant to 1-18a(e)(5), G.S., records of communications privileged by the attorney-client relationship and exempt from disclosure under 1-19(b)(10), G.S.


5. At the hearing on this matter, the parties agreed that the case was mis-captioned, with Attorney William M Laviano incorrectly listed as the complainant, in lieu of his client, Robert Cox.


Docket #88-165 Page Two


6. Also at the hearing, the respondent moved to strike the complaint for failure to state a claim upon which relief can be granted. The hearing officer denied the motion.


7. At the hearing the respondent also moved to quash a subpoena served on Joseph Sweeney; for a protective order for certain bills received from the respondent's attorneys, subject to subpoenae duces tecum served on Joseph Leheny and Robert Mitchell; and to quash a subpoena served on Robert Mitchell. The hearing officer reserved judgment on these motions, which are hereby denied as moot.


8. It is found that the complainant's attorney sent the Ridgefield Superintendent of Schools a letter dated April 13, 1988, expressing his clients' concerns about a change in the superintendent's and respondent board's policy on alumni pieces in the Ridgefield High School literary magazine, Lodestar.


9. It is found that the attorney's letter detailed legal problems arising from the new policy, urged the superintendent to mollify it, and threatened that litigation was a "very real possibility."


10. It is found that the complainant's attorney sent this letter upon instruction from his clients in a strong effort to avoid litigation.


11. It is found that the student editors and their advisors previously had communicated to the superintendent their desire to discuss the policy change and that they believed such discussion would take place at the respondent's April 25, 1988, meeting.


12. It is found that during its April 25, 1988 meeting the respondent convened in executive session, publicly stating, as the agenda indicated, it was doing so "to receive advice from legal counsel on a legal matter."


13. It is found that in the executive session the respondent's attorneys gave the respondent's members explanations of and legal advice on the issues raised in the complainant's attorney's letter.


14. It is further found that during the executive session the respondent's attorneys presented a proposed written policy statement about alumni submissions to the magazine and that then some grammatical changes were made to the statement.


Docket #FIC 88-165 Page Three


15. It is found that the written policy statement presented by the respondent's attorneys contains no information that constitutes a communication privileged by the attorney-client relationship.


16. Indeed, it is found that immediately after the executive session adjourned, the respondent reconvened in public session, had the revised statement read aloud, and without discussion unanimously voted to adopt it.


17. It is also found that the complainant's attorney's letter, explained in the executive session, contains no information privileged by the respondent's attorney-client relationship.


18. Thus it is concluded that no record as defined in 1-19(b)(10), G.S., was discussed in the executive session.


19. It is found that legal advice about a threatening letter does not constitute "strategy and negotiations with respect to pending claims and litigation" within the meaning of 1-18a(e)(2), G.S.


20. It is also found that a presentation and revision of a policy statement on magazine submissions does not constitute "strategy and negotiations with respect to pending claims and litigation" within the meaning of 1-18a(e)(2), G.S.


21. Thus it is concluded that the respondent did not meet in executive session for a purpose permitted by either 1-18a(e)(2) or 1-18a(e)(5), G.S.


22. It is concluded, therefore, that the respondent violated 1-81a(e), 1-21(a) and 1-21g(h), G.S., by convening in executive session for an impermissible purpose.


23. It is found that the adoption of the new policy on submissions to the high school literary magazine was a direct result of the executive session.


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


1. The respondent henceforth shall act in strict compliance with 1-18a(e), 1-21(a) and 1-21g, G.S.


2. The vote of the respondent at its April 25, 1988, meeting concerning the policy on the submission by alumni of material for the Ridgefield High School literary magazine, Lodestar, is hereby declared null and void.


Docket #FIC 88-165 Page Four


3. Although outside the scope of the complaint, the Commission notes that the topic listed on the agenda and the

purpose for the executive session stated publicly before convening were too vague to apprise the public as to the actual purpose, in violation of 1-21(a), G.S. The Commission likewise notes that the superintendent, who was not a member of the respondent, was present throughout the executive session without being invited in to present testimony or evidence, in violation of 1-21g(a), G.S.


4. In addition, the Commission expresses its concern that when the public agency most directly effecting students illegally meets behind closed doors to handle an issue of known public interest, the students' education about the democratic process, and the free flow of information it requires, is impeded.



Approved by order of the Freedom of Information Commission at its regular meeting of January 11, 1989.



Karen J. Haggett

Clerk of the Commission