FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
David W. Norbut,
against Docket #FIC 90-169
New Britain Board of Public Works,
Respondent April 24, 1991
The above-captioned matter was heard as a contested case on August 23, 1990, at which time 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 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 and filed with the Commission on May 9, 1990, the complainant appealed to the Commission, alleging that the respondent:
a. failed to have the vote of each of its members on the termination of the complainant's employment reduced to writing and made available for public inspection within 48 hours of the respondent's April 10, 1990 meeting (the "meeting");
b. failed to have those votes recorded in the minutes of the meeting;
c. before convening in executive session, failed to conduct an affirmative vote of two-thirds of its members stating a valid reason for the executive session;
d. conducted an executive session for an improper purpose;
e. voted in executive session;
f. failed to disclose in its minutes all persons in attendance at the executive session; and
g. failed to provide by ordinance or resolution the place for holdings its regular meetings.
Docket #FIC 90-169 Page two
3. In his letter of complainant, the complainant also requested that any and all action taken by the respondent in its executive session and all subsequent actions taken by it and the City of New Britain in reliance thereon be nullified.
4. At the hearing, the respondent moved to dismiss the complaint because the Commission did not serve upon the respondent a copy of the complainant's notice of appeal until August 3, 1990, which the respondent maintains violates both 1-21i(b), G.S., and its due process rights.
5. Section 1-21i(b), G.S., provides in relevant part:
Upon receipt of such notice [of appeal], the [freedom of information] commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission.
6. Section 1-21i(b), G.S., does not by its terms specify the time within which the Commission shall serve a copy of a notice of appeal upon the parties.
7. It is concluded therefore that the Commission's delay in serving a copy of the notice of appeal on the respondent, which the Commission regrets, does not deprive the Commission of subject matter jurisdiction over the complaint.
8. It is also found that the respondent received a copy of the complainant's notice of appeal more than two weeks before the hearing on this matter.
9. It is concluded, therefore, that the respondent was not deprived of due process by the Commission's delay in serving a copy of the notice of appeal.
10. The respondent's motion to dismiss is therefore denied.
11. At the hearing, the complainant withdrew the portion of his complaint described in paragraph 2.g, above.
12. It is found that the respondent held a special meeting on April 10, 1990 to discuss and act upon its director's recommendation that the complainant's employment with the respondent be terminated.
13. It is found that, in the public portion of the meeting, the respondent reviewed the director's recommendation and his supporting documentation, heard testimony on behalf of the complainant, and heard summations from labor and management.
14. It is found that the respondent then unanimously voted, upon a motion made and seconded, to convene in executive session for the stated purpose of further discussing the complainant's case.
Docket #FIC 90-169 Page 3
15. It is found that the sole purpose of the meeting was to conduct a hearing regarding the termination of the complainant's employment.
16. It is found that the stated purpose for convening in executive session was reasonably understood to mean discussion concerning the dismissal of a public employee.
17. It is therefore concluded that the respondent did not violate 1-18a(e) and 1-21(a), G.S., by taking the actions described in paragraph 14, above.
18. Also at the hearing, the parties stipulated to the truth of the allegations described in paragraphs 2.a and 2.f, above.
19. It is therefore concluded that the respondent violated 1-21(a), G.S., by failing to make available within 48 hours of the meeting a written record of the votes of each member on the issues before the agency at its meeting.
20. It is also concluded that the respondent violated 1-21g, G.S., by failing to disclose in its minutes all persons in attendance at the executive session convened at the meeting.
21. With respect to the allegation described in paragraph 2.b, above, it is found that the respondent amended its minutes at its June 4, 1990 meeting to reflect the votes of its members on the issue of the complainant's termination at the April 10, 1990 meeting, and that such votes are recorded in the minutes of the April 10 meeting.
22. Section 1-21(a), G.S., provides in relevant part:
The votes of each member of any such public agency upon any issue before such public agency shall ... be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.
23. It is concluded that the respondent violated 1-21(a), G.S., by failing to record the votes of its members at its April 10 meeting in the April 10 minutes until June 4, 1990.
24. With respect to the allegation described in paragraph 2.e, above, it is found that the respondent did not vote in public session on the issue of the complainant's termination, but did reach a consensus on that issue while convened in executive session.
25. It is found that the consensus of the respondent was equivalent to a vote.
Docket #FIC 90-169 Page 4
26. Section 1-18a(e), G.S., provides in relevant part:
"Executive sessions" means ... (1) discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee ....
27. It is concluded that the respondent violated 1-21(a) and 1-18a(e)(1), G.S., by voting on the complainant's dismissal in executive session.
28. With respect to the complainant's request that the Commission declare null and void the respondent's termination of his employment at the April 10, 1990 meeting, it is concluded that the violations found to have been committed by the respondent concerning its vote in executive session and its minutes and record of that vote would not be appropriately remedied by nullifying the actions at a meeting which was substantially in compliance with Freedom of Information procedural requirements.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captaioned complaint:
1. Henceforth the respondent shall strictly comply with the minutes and record of vote requirements contained in 1-21(a), G.S., and with the limitations contained in 1-18a(e) concerning votes in executive session.
2. The respondent shall amend the minutes of its April 10, 1990 meeting to reflect all individuals present during its executive session.
Approved by order of the Freedom of Information Commission at its regular meeting of April 24, 1991.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-169 Page 5
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:
DAVID W. NORBUT
c/o Harold J. Geragosian, Esq.
380 West Main Street
New Britain, CT 06052
NEW BRITAIN BOARD OF PUBLIC WORKS
c/o Seth Feigenbaum, Esq.
New Britain Corporation Counsel
185 Main Street
New Britain, CT 06051
Tina C. Frappier
Acting Clerk of the Commission