FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Joseph T. Olesky,

 

Complainant

 

against Docket #FIC 91-44

 

Enfield Ethics Commission,

 

Respondent September 25, 1991

 

The above-captioned matter was heard as a contested case on May 6, 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 of complaint filed February 22, 1991, the complainant appealed to the Commission, alleging that:

 

a. the respondent Ethics Commission conducted an executive session regarding his complaint with the Ethics Commission without posting a notice of the meeting;

 

b. the respondent voted in executive session on the resolution of his complaint;

 

c. the respondent refused to provide him with the details of its findings on his complaint; and

 

d. the respondent's attorney advised the respondent to prohibit divulging the votes on his complaint cast by the members of the respondent.

 

3. It is found that the respondent met on January 14, 1991 to consider an ethics complaint filed by the complainant.

 

4. It is found that the respondent's meeting was not open to the public.

 

Docket #FIC 91-44 Page 2

 

5. It is found that the respondent made a finding of no probable cause at its January 14 meeting.

 

6. It is found that the respondent filed a notice of the January 14 special meeting with the Enfield town clerk on January 8, but that the notice did not describe the complaint or complaints to be considered, or whether the respondent would make findings concerning probable cause.

 

7. It is found that the complainant did not receive actual notice of the respondent's finding of no probable cause concerning his ethics complaint until January 23, 1991.

 

8. It is therefore found that the portion of the meeting at which the respondent voted to find no probable cause was secret or unnoticed within the meaning of 1-21i(b), G.S.

 

9. It is therefore concluded that, with respect to the respondent's vote on a finding of no probable cause, the complainant brought his complaint within thirty days of receiving notice in fact of that vote, and his complaint is therefore not barred by 1-21i(b), G.S.

 

10. It is found that the respondent was established as a municipal ethics commission by An Ordinance Concerning Ethics in Local Government and Establishing a Town Ethics Commission adopted by the Enfield Town Council on October 19, 1987 and made effective November 3, 1987.

 

11. Public Act 89-229 amended 7-148h, G.S., to make the provisions of subsections (a) to (e), inclusive, of 1-82a, G.S., apply to an investigation of allegations of ethical misconduct brought before a municipal ethics commission.

 

12. Section 1-82a(b) provides in relevant part:

 

An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent.

 

13. It is found that the respondent's January 14 meeting was an investigation conducted prior to a probable cause finding.

 

14. It is concluded that the January 14 meeting was not convened as an executive session pursuant to 1-18a(e) and 1-21(a), G.S., but was permissibly closed to the public pursuant to 7-148h, G.S.

 

15. It is also concluded that nothing in 7-148h or 1-82a, G.S., prohibits the respondent from voting as to a finding of no probable cause in closed session.

 

Docket #FIC 91-44 Page 3

 

16. It is found that the respondent informed the complainant of its finding of no probable cause by letter dated January 18, 1990 and received January 23, 1990.

 

17. It is found that the complainant requested, by letter dated January 24, 1990, the record of the respondent's vote on his complaint.

 

18. It is concluded that the requested record of vote is a public record within the meaning of 1-18a(d), G.S.

 

19. It is found that the respondent, by letter dated February 6, 1991, declined to provide the requested record.

 

20. Section 1-82a(d), G.S., provides in relevant part:

 

If the [ethics] commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings.

 

21. It is found that the requested record of vote is a record of the respondent Ethics Commission's investigation.

 

22. It is also found that disclosure of the requested record of vote, by revealing the margin of the respondent's vote, would disclose a portion of the respondent's evaluation of the likelihood of a possible violation of its ethics code.

 

23. It is therefore concluded that the requested record of vote is exempt from disclosure pursuant to 7-148h, G.S.

 

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

 

1. The complaint is dismissed.

 

2. Nothing in this final decision shall be construed to affect the respondent's obligations under 1-21(a), G.S., to reduce to writing the votes of each member upon any issue before the respondent, and to record the votes in the minutes of the session at which taken.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 1991.

 

 

Karen J. Haggett

Clerk of the Commission

 

Docket #FIC 91-44 Page 3

 

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:

Joseph T. Olesky

2 Thomas St.

Enfield, CT 06082-2520

 

Christopher W. Bromson, Esq.

Enfield Town Attorney

Higgins School

47 North Main St.

Enfield, CT 06082

 

 

Karen J. Haggett

Clerk of the Commission