FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Robert A. Weiss,
against Docket #FIC 90-471
Berlin Executive Board,
Respondent May 8, 1991
The above-captioned matter was heard as a contested case on March 18, 1991, 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 filed with the Commission on December 5, 1990, the complainant alleged that the respondent entered an improper executive session on November 20, 1990 concerning the renewal of the golf pro contract set to expire in March 1991. He also alleged that the respondent entered into another improper executive session on November 15, 1990 to review another vendor contract dealing with the restaurant at the same golf course, Timberlin.
3. It is found that at its November 15, 1990 meeting, the respondent conducted an executive session to interview two bidders for restaurant concessions at the golf course.
4. It is also found that those in attendance at the executive session of November 15, 1990 included the personnel director and three members of the parks and recreation commission.
5. The respondent claims that although neither the personnel director nor the parks and recreation commission members are members of the respondent, their presence was needed to provide "expertise" and "direction" to the respondent.
6. It is also found that the personnel director was permitted to remain in executive session not only to provide testimony or opinion but also during the respondent's deliberations.
Docket #FIC 90-471 Page Two
7. At the hearing, the respondent claimed that the November 15, 1990 executive session was permissible pursuant to 1-18a(e)(1), G.S. because an outside contractor is a "quasi-employee" or "quasi-public officer".
8. It is concluded that 1-18a(e)(1), G.S. does not permit an executive session for purposes of interviewing "quasi" officials or employees.
9. It is concluded that the respondent violated the executive session provisions of the Freedom of Information Act by interviewing independent contractors in executive session.
10. It is found that at its November 20, 1990 meeting, the respondent entered into executive session to discuss renewal of the golf pro's contract.
11. It is found that also present with the respondent in its November 20 executive session were the personnel director and three members of the parks and recreation commission.
12. At the hearing the complainant claimed that the respondent failed to account for some time lapses while the respondent was in executive session.
13. It is concluded, however, that the complainant's claim identified in paragraph 12, above, does not properly fall within the scope of the complaint.
14. At hearing, the respondent claimed that its November 20 executive session was proper pursuant to 1-18a(e)(1) and 1-18a(e)(5), G.S.
15. It is found that the golf pro is an independent contractor and not an employee of the respondent.
16. It is accordingly concluded that 1-18a(e)(1), G.S. does not sanction the respondent's November 20 executive session.
17. The respondent also claims that those in attendance at the November 20 executive session relied upon their notes throughout their discussion, which notes are exempt from disclosure as preliminary notes or drafts pursuant to 1-19(b)(1), G.S.
18. It is concluded that the notes identified in paragraph 17, above, would not be exempt pursuant to 1-19(b)(1), G.S. due to the applicability of 1-19(c), G.S.
Docket #FIC 90-471 Page Three
19. Finally, at the hearing, the respondent argued that its executive session was permitted pursuant to 1-18a(e)(4), G.S. because the contract under discussion related to the lease of improvements to real estate.
20. It is concluded that under the facts of this case, the respondent's November 20 executive session did not consist of a 1-18a(e)(4), G.S. discussion of the selection of a site or the lease, sale or purchase of real estate by the respondent such that publicity regarding the transaction would cause a likelihood of increased price.
21. It is concluded that the respondent violated the executive session provisions of the Freedom of Information Act by the conduct of its November 20, 1990 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 comply with the executive session provisions of the Freedom of Information Act.
2. Although not properly within the scope of the complaint, the Commission notes that testimony at the hearing indicated a misunderstanding by the respondent concerning who is permitted to attend an executive session with the respondent and for what duration of time. Accordingly, the Commission invites the respondent to confer with Commission staff by telephone during regular business hours to address questions on these or any other Freedom of Information issues of concern to the respondent.
Approved by order of the Freedom of Information Commission at its regular meeting of May 8, 1991.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-471 Page Four
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:
ROBERT A. WEISS
136 Whispering Brook Drive
Kensington, CT 06037
BERLIN EXECUTIVE BOARD
c/o E. Timothy Sullivan, Jr.
Gaffney, Pease & DiFabio
One Liberty Square
New Britain, CT 06051
Tina C. Frappier
Acting Clerk of the Commission