FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by Final Decision

 

Jim Sweeney and Cablevision News 12,

 

Complainants

 

against Docket #FIC 91-161

 

Town of Stratford and Stratford Police Department,

 

Respondents November 13, 1991

 

The above-captioned matter was heard as a contested case on September 17, 1991, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.

 

2. By letter of complaint filed June 24, 1991, the complainants appealed to the Commission, alleging that they were excluded from a police officer's termination hearing, and that the officer had requested that the hearing be open.

 

3. It is found that the Stratford Chief of Police recommended that a certain police officer be terminatated.

 

4. It is found that the respondents conducted a formal hearing on June 20, 1991, concerning the officer's termination.

 

5. It is found that the Stratford town manager acted as the single hearing officer at the hearing.

 

6. It is also found that the town manager is the chief executive officer of the town, with the power to terminate the police officer whose case he heard.

 

7. It is concluded that the town manager, acting as a hearing officer and chief executive officer of the town of Stratford, is a public agency within the meaning of 1-18a(a), G.S.

 

8. It is found that the town's labor consultant acted as prosecutor in the hearing, presenting evidence and argument in support of the officer's dismissal.

 

Docket #FIC 91-161 Page 2

 

9. It is found that the officer's union representative and the union's lawyer appeared in the officer's defense, brought a potential witness who did not testify, and presented argument in opposition to the officer's dismissal.

 

10. The respondents maintain that the June 20 hearing was not a meeting within the meaning of 1-18a(b), G.S., because it was an administrative or staff meeting of a single-member public agency.

 

11. It is found that the respondents offered no evidence to prove that the town manager convened a meeting of his staff.

 

12. It is also found that the town manager, acting as hearing officer, exercised a function which required special discretion, judgment and skill.

 

13. It is concluded that the town manager, serving as a hearing officer in a formal hearing, acted in a quasi-judicial and not an administrative or ministerial capacity.

 

14. It is concluded that the June 20 termination hearing was both a hearing and a meeting within the meaning of 1-18a(b), G.S.

 

15. It is found that the complainant Cablevision News 12 was, in the person of its reporter, refused admittance to the June 20 hearing.

 

16. The complainants maintain that the respondents violated 1-18a(e)(1), G.S., by failing to honor the officer's request that the hearing be open to the public.

 

17. Section 1-18a(e)(1) provides:

 

"Executive sessions" means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting ....

 

18. It is found that the officer was notified of the hearing concerning her termination approximately one month before the hearing.

 

19. It is found that, although the respondents did not notify the officer that the hearing would be closed to the public, the officer understood that the hearing would be closed to the public.

 

20. It is found that the officer did not request that the hearing be open to the public.

 

Docket #FIC 91-161 Page 3

 

21. The respondents maintain that the hearing was permissibly closed to the public because the applicable provision of the collective bargaining agreement between the town and the union representing the officer provides that all such hearings shall be closed to the public, including the press, unless mutually agreed to the contrary.

 

22. Section 1-21, G.S., provides that all meetings of government agencies are to be open to the public, with the exception only of executive sessions as defined in 1-18a(e), G.S.

 

23. It is found that the respondents offered no evidence to prove that the closure of hearings otherwise required to be open to the public under 1-21, G.S., is a legal subject of collective bargaining.

 

24. It is found that the respondents maintained no stenographic or other record of the June 20 hearing, other than the hearing officer's notes, which the respondents maintain are permissibly exempt from disclosure pursuant to 1-19(b)(1), G.S.

 

25. It is found that prohibiting public access to the June 20 hearing had the effect of prohibiting any public access, present or future, to what transpired at the disciplinary termination hearing of the officer.

 

26. It is found that public access to formal hearings concerning the termination of public employees is critical to the public trust in the fair resolution of such disputes.

 

27. It is also found that the right of the public to attend formal hearings concerning the termination of public employees implicates fundamental rights of access by the public to quasi-judicial proceedings of public agencies.

 

28. It is therefore concluded that the closure of police officers' termination hearings is an illegal subject of bargaining, and that the portion of the bargaining agreement between the respondents and the officer's union requiring such closure is null and void, pursuant to Lieberman v. Board of Labor Relations, 216 Conn. 253 (1990).

 

29. The respondents also maintain that the hearing was permissibly closed to the public pursuant to 1-18a(e)(1), G.S., since the hearing concerned the dismissal of a public employee.

 

30. It is found, however, that the hearing the complainants sought to attend consisted of the presentation of evidence and arguments, not deliberation concerning the officer's termination or discussion concerning the officer's dismissal within the meaning of 1-18a(e)(1), G.S.

 

Docket #FIC 91-161 Page 4

 

31. It is concluded that the hearing the complainants sought to attend could not be permissibly closed to the public, pursuant to Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190 (1984).

 

32. It is therefore concluded that the respondents violated 1-21, G.S., by prohibiting the complainants from attending the June 20 termination hearing.

 

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

 

1. Henceforth the respondents shall act in strict compliance with the requirements of 1-18a(e)(1) and 1-21, G.S.

 

2. A copy of this decision shall be posted on the Town Clerk's bulletin board for a period of thirty days.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 13, 1991.

 

 

Karen J. Haggett

Clerk of the Commission

 

Docket #FIC 91-161 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:

Jim Sweeney and

Cablevision News 12

28 Cross Street

Norwalk, CT 06851

 

Town of Stratford and

Stratford Police Department

c/o Kurt M. Ahlberg, Esq.

2885 Main Street

Stratford, CT 06497

 

 

Karen J. Haggett

Clerk of the Commission