FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Nicholas B. Wynnick,

 

Complainant

 

against Docket #FIC 89-42

 

Ansonia Library Board of Directors,

 

Respondent July 26, 1989

 

The above-captioned matter was heard as a contested case on June 6, 1989, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with Docket #FIC 89-43 and Docket #FIC 89-70.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1. The respondent is a public agency within the meaning of 1-18a(a), G.S.

 

2. The respondent held a regular meeting on January 9, 1989.

 

3. At that meeting, the respondent voted unanimously to convene in executive session for the stated purpose of discussing the employment situation of an individual who was employed by the Ansonia Library.

 

4. That discussion was undertaken pursuant to the item "Old Business" on the agenda for the January 9, 1989 meeting.

 

5. By letter of complaint dated February 6, 1989 and received by the Commission on February 7, 1989, the complainant appealed to the Commission, alleging that:

 

a. the agenda for the January 9, 1989 meeting did not apprise the public of the topic of the executive session or of the identity of the employee to be discussed;

 

Docket #FIC 89-42 Page 2

 

b. the employee discussed in executive session was not notified that her performance would be discussed in executive session;

c. the respondent took no vote to indicate the result of its discussion in executive session;

 

d. the minutes of the executive session failed to identify all persons who attended the executive session; and

 

e. individuals other than members of the respondent board attended the executive session for longer than necessary to present testimony or opinion.

 

6. At the hearing, the hearing officer denied the respondent's request that the hearing be continued because the president of the respondent board was unable to attend and present testimony.

 

7. With respect to the allegation described in paragraph 5.a., above, it is found that the agenda item "Old Business" did not reasonably apprise the public that the respondent would discuss the performance of an employee of the Ansonia Library.

 

8. It is also found that the respondent did not vote to add the discussion of the employee to its agenda.

 

9. It is therefore concluded that the respondent violated 1-21(a) by considering business not included in its filed agenda nor added to such agenda.

 

10. With respect to the allegation described in paragraph 5.b., above, it is found that the complainant twice requested, and the respondent twice was unable to provide, a copy of any notice informing the employee discussed in executive session that such discussion would occur.

 

11. It is also found that the respondent offered no evidence to prove that notice was given to the subject employee, either in writing or orally.

 

12. It is concluded that the respondent violated 1-18a(e)(1) and 1-21(a) by discussing the employment, performance, evaluation, health or dismissal of the subject employee without providing that employee an opportunity to require that such discussion be held at an open meeting.

 

13. With respect to the allegation described in paragraph 5.c. above, it is concluded that there is no requirement under the Freedom of Information Act that an agency vote upon matters discussed in executive session.

 

Docket #FIC 89-42 Page 3

 

14. With respect to the allegations described in paragraphs 5.d. and 5.e., above, it is found that the executive session on January 9, 1989 was attended in its entirety by the Library Director, the Assistant Library Director, and the Library Clerk.

 

15. It is found that none of the three individuals described in paragraph 14, above, are members of the respondent board.

 

16. It is also found that the minutes of the January 9, 1989 meeting do not disclose that those three individuals attended the executive session convened at that meeting.

 

17. It is also found that the respondent failed to prove that those three persons were invited by the respondent to present testimony or opinion pertinent to the subject of the executive session, or that their attendance was limited to the period for which their presence was necessary to present testimony or opinion.

 

18. It is therefore concluded that the respondent violated 1-21g(a), G.S., by not limiting attendance at the January 9, 1989 executive session to members of the respondent and persons invited by the respondent to present testimony or opinion pertinent to matters before the respondent, by not limiting such attendance by invitees to the period for which their presence was necessary to present such testimony or opinion, and by failing to disclose in the minutes of the January 9, 1989 meeting all persons who were in attendance at the executive session.

 

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 act in strict compliance with the requirements of 1-21(a), G.S., regarding the consideration of business not included in its filed agenda, of 1-18a(e)(1), G.S., regarding the provision of an opportunity to any employee to require that discussion of his or her performance be held at an open meeting, and of 1-21g(a), G.S., regarding attendance at executive sessions.

 

Docket #FIC 89-42 Page 4

 

PURSUANT TO 4-180(c) C.G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

NICHOLAS B. WYNNICK

55 Prospect Street

Ansonia, CT 06401

 

JAMES E. SHEEHY, ESQ.

303 Wakeley Avenue

Ansonia, CT 06401

 

Approved by order of the Freedom of Information Commission at its regular meeting of July 26, 1989.

 

 

Karen J. Haggett

Clerk of the Commission