FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Christopher Hoffman and Norwich Bulletin,
against Docket #FIC 91-286
Board of Trustees, Norwich Free Academy,
Respondent September 9, 1992
The above-captioned matter was heard as a contested case on February 14, 1992, at which time the complainants 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 dated September 12, 1991 and filed September 16, 1991, the complainants appealed to the Commission, alleging that:
a. the respondent convened an illegal emergency meeting on September 4, 1991 to discuss the failure of the City of Norwich to make a payment on a disputed account; and
b. with respect to the respondent's September 8, 1991 special meeting,failed to file a notice of the meeting within twenty-four hours of the meeting as required under 1-21, G.S., convened an executive session for an improper purpose and failed to properly identify the subject of the executive session, and illegally voted or came to a consensus during its executive session on that date.
3. In addition, the complainants asked the Commission to impose civil penalties upon the respondent.
4. It is found that on September 4, 1991, the respondent convened a meeting and that the respondent did not file a notice for the meeting in accordance with the requirements for special meetings pursuant to 1-21, G.S.
5. The respondent contends that the September 4, 1991 meeting was an emergency special meeting convened for the purpose of discussing the City of Norwich's (hereinafter "City") disputed tuition account and that therefore compliance with the special meeting notice provisions was not necessary.
6. It is found that during the summer of 1991, there was an ongoing dispute between the respondent and the City regarding the amount of tuition the City owed Norwich Free Academy (hereinafter "Academy") for both the previous academic year and for the upcoming academic year.
7. The respondent maintains that there was a sufficient emergency to warrant an emergency special meeting and to thereby dispense with the notice requirements because: it thought, based upon conversations between its superintendent and the City's superintendent of schools on September 3 and the morning of September 4, 1991, that the City was refusing to pay its entire tuition bill; it knew that the Norwich Board of Education (hereinafter "NBE") was scheduled to meet on September 5, 1991 and would discuss the matter; the students were scheduled to return to the Academy on September 6, 1991; and that it had to make a decision immediately whether to open the Academy on September 6, 1991, its scheduled opening date.
8. It is found that during the September 4, 1991 meeting, the respondent voted to open the Academy on September 6, 1991, its scheduled opening date, but to close the Academy on September 11, 1991 if the City continued to refuse payment on the disputed account.
9. It is found that the respondent failed to prove that there was a compelling necessity for it to meet or act on September 4, 1991 without providing the minimum twenty-four hours advance notice required under 1-21, G.S.
Docket #FIC 91-286 Page 3
10. It is therefore concluded, with respect to the allegation in paragraph 2a, above, that the respondent violated the provisions of 1-21, G.S., when it convened its meeting without providing the advance notice to the public required for special meetings.
11. It is found that on September 8, 1991 at 5:00 p.m., the respondent convened another meeting at which it again considered the City's disputed tuition account.
12. It is also found that the decision to hold the September 8, 1991 meeting was made on September 6, 1991 after the respondent learned that the NBE's September 5, 1991 meeting had not resulted in a change in NBE's position with regard to the disputed tuition account.
13. It is also found that the notice for the September 8, 1991 meeting was date-stamped as received by the City's municipal clerk on September 9, 1991.
14. It is also found that during the afternoon of September 6, 1991, a Friday, the respondent sent notices of the special meeting by messenger to the municipal clerks of the various towns served by the Academy and made contact with local news media conveying its intent to convene the September 8, 1991 meeting.
15. It is also found that the minutes of the September 8, 1991 meeting identify said meeting as an emergency special meeting of the respondent.
16. It is also found, however, that the respondent failed to demonstrate that there existed an emergency sufficient to convene an emergency special meeting and that in spite of the efforts described in paragraph 14 above, the respondent failed to satisfy the requirements for filing a notice of special meeting.
17. Consequently, it is concluded that the respondent violated the provisions of 1-21, G.S., with respect to notice of its September 8, 1991 meeting.
18. It is found that the minutes of the September 8, 1991 meeting indicate that the respondent convened an executive session "to receive and review the opinion letter of Academy counsel regarding tuition payments and related issues."
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19. It is also found that the notice for the September 8, 1991 meeting does not indicate that the respondent would convene an executive session.
20. The respondent maintains that its superintendent was told that NBE was considering whether it would sue the Academy if it closed on September 11, 1991.
21. The respondent also maintains that the purpose of the September 8, 1991 executive session discussion was two-fold: discussion of its attorney's opinion letter regarding both the possibility that the City or NBE might sue the Academy if it closed on September 11, 1991 and whether the Academy should consider instituting legal action against the City for nonpayment of its account.
22. Section 1-18a(e)(5), G.S., allows an agency to convene an executive session for "discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19."
23. Section 1-19(b)(10), G.S., permits the nondisclosure of "...communications privileged by the attorney-client relationship."
24. It is found that the opinion letter of the Academy's counsel in this case is a written communication privileged by the attorney-client relationship within the meaning of 1-19(b)(10), G.S.
25. It is also found that to the extent the respondent discussed the possibility of legal action against the Academy or the possibility of the Academy instituting its own legal action, the executive session was convened for a permissive purpose under 1-19(b)(10) and 1-18a(e)(5), G.S.
26. It is also found with regard to the September 8, 1991 meeting, the respondent failed to adequately state the business to be transacted in its notice of special meeting and failed to state the business that was actually discussed during the executive session in the meeting minutes in a manner that clearly identifies to the public the subject of the executive session.
27. It is therefore concluded that the respondent violated the provisions of 1-21, G.S., with respect to both the notice and minutes of its September 8, 1991 meeting.
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28. It is found that after the September 8, 1991 executive session, the respondent reconvened in public session and considered the second agenda item, identified as "School Calendar," and that a motion was then made "to open school on Wednesday, September 11, 1991, and thereafter," which motion passed unanimously.
29. The complainants maintain that the respondent did not vote to rescind its earlier resolution adopted at its September 4, 1991 meeting, to close the Academy on September 11, 1991 at a public meeting and therefore they inferred that the respondent must have arrived at a concensus vote to do so during the executive session.
30. It is found however that the complainant failed to prove that the respondent conducted a consensus vote to rescind its September 4, 1991 resolution.
31. The Commission in its discretion, and under the specific circumstances of this case, declines to impose civil penalties upon the respondent.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth the respondent shall strictly comply with all of the requirements contained in 1-21, G.S., with respect to convening and providing notice to the public of its special meetings.
2. Although the Commission did not conclude that the respondent conducted a consensus vote during the course of its September 8, 1991 executive session, the Commission notes upon review of the September 8, 1991 meeting minutes, that an inference could reasonably be drawn that the respondent discussed whether to keep the Academy open beyond September 10, 1991 during the executive session; the Commission wishes to remind the respondent that such a discussion is not a proper subject for an executive session under the provisions of the Freedom of Information Act.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 9, 1992.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 91-286 Page 6
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:
66 Franklin Street
Norwich, CT 06360
Board of Trustees Norwich Free Academy
c/o Attorney Donald W. Strickland
Siegal, O'Conner, Schiff
370 Asylum Avenue
Hartford, CT 06103
Debra L. Rembowski
Acting Clerk of the Commission