FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Dennis J. Anziano,
against Docket #FIC 90-399
Madison Board of Police Commissioners,
Respondent(s) December 12, 1990
The above-captioned matter was heard as a contested case on November 27, 1990, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.
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. By letter of complaint dated November 1, 1990 and filed with the Commission on November 6, 1990, the complainant alleged that between October 19, 1990 and October 29, 1990, the respondent held three special meetings and at each meeting an executive session was improperly convened and held to discuss the complainant's performance and health regarding an incident at a McDonald's restaurant on October 12, 1990 (hereinafter "performance").
3. Specifically, the complainant alleged that the respondent failed to notify him of its intention to discuss his performance at each of the three executive sessions held, and the respondent instructed him not to attend the second and third executive sessions it held.
4. It is found that on October 19, 22 and 29, 1990, the respondent held special meetings at which executive sessions were convened to discusss the complainant's performance.
Docket #FIC 90-399 Page 2
5. 1-18a(e)(1), G.S., states in relevant part that the public may be excluded from a meeting of a public agency at which there is a discussion concerning: ". . . the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided (emphasis added) that such individual may require that discussion be held at an open meeting . . . ."
6. It is found that the complainant is a "public officer or employee" within the meaning of 1-18a(e)(1), G.S.
7. It is found that the respondent failed to inform the complainant of his right to have the discussions about his performance held in a public rather than an executive session.
8. It is found that, although the complainant received no prior notification of the respondent's intention to discuss him in an executive session, he attended the special meeting and executive session held on October 19, 1990 solely because he had attended another meeting at the same location immediately prior to the commencement of the respondent's special meeting and executive session.
9. It is also found that immediately prior to the convening of the October 29, 1990 executive session the respondent telephoned the complainant at his residence and instructed him to be prepared to make himself available in case the respondent needed to speak with him during the course of the executive session.
10. It is found that the instructions that the complainant received from the respondent, as set forth in paragraph 9 of the findings, above, could have reasonably been construed as a directive to the complainant to remain in his residence and not appear at the executive session.
11. It is therefore found that the respondent failed to give the complainant meaningful notice of its intention to convene in executive session to discuss his performance at the respondent's October 19, 22 and 29, 1990 meetings.
12. It is therefore concluded that the executive sessions held to discuss the complainant's performance at the respondent's October 19, 22 and 29, 1990 meetings were convened in violation of 1-18a(e)(1), G.S.
Docket #FIC 90-399 Page 3
13. It is found that on October 29, 1990, after adjourning the executive session and reconvening the public meeting the respondent made a motion and voted to reprimand the complainant for his performance.
14. It is concluded that the respondent's motion for a reprimand was a direct result of its investigation and discussions about the complainant's performance which were illegally held in executive session at the respondent's October 19, 22 and 29, 1990 meetings.
The following order by the Commission is hereby recommended
on the basis of the record concerning the above-captioned complaint:
1. The respondent's action to reprimand the complainant, as described in paragraphs 13 and 14 of the findings, above, is hereby declared null and void.
2. Henceforth the respondent shall act in strict compliance with the notice requirements for an executive session discussion of a personnel matter as set forth in 1-18a(e)(1), G.S.
3. The Commission advises the respondent that the protection which is expressly given under 1-18a(e)(1), G.S., is given to the individual who is the subject of the discussion. Therefore, the prerogative to exercise that protection belongs to the subject of the discussion who must be afforded a meaningful opportunity to indicate his preference for open or closed discussions.
4. The respondent is further advised that the Commission will not tolerate blatant disregard of 1-18a(e)(1), G.S.
Approved by order of the Freedom of Information Commission at its regular meeting of December 12, 1990.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-399 Page 4
PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
DENNIS J. ANZIANO
c/o Ralph E. Wilson, Esq.
210 South Main Street
Middletown, CT 06457
MADISON BOARD OF POLICE COMMISSIONERS
c/o Gail S. Kotowski, Esq.
58 Boston Street
P.O. Box 37
Guilford, CT 06437
Tina C. Frappier
Acting Clerk of the Commission