FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 92-266
Old Saybrook Zoning Commission,
Respondent April 28, 1993
The above-captioned matter was heard as a contested case on February 19, 1993, 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 August 20, 1992, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information ("FOI") Act by:
a. holding a special meeting on July 23, 1992 without filing a notice containing a description of the business to be transacted at the meeting;
b. convening in executive session to discuss the complainant's appointment, employment, performance, evaluation or dismissal without giving him notice of the meeting or an opportunity to require that discussion to be public; and
c. failing to describe the purpose of the executive session in the notice of the meeting.
3. It is found that the complainant was hired by the respondent to perform the duties of the Old Saybrook zoning enforcement officer in April, 1992.
4. It is found that the complainant did not receive such benefits as health insurance and retirement plan participation, and worked only thirty hours per week, because the respondent lacked full funding for the position.
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5. It is found that the respondent designated the complainant's position as "temporary consulting zoning enforcement officer" because of the lack of benefits, the 30-hour week work, and because of an ongoing dispute between the respondent and the Old Saybrook board of selectmen as to who had the authority to hire the zoning enforcement officer.
6. It is found that all but one member of the respondent assembled on July 23, 1992 to discuss whether to continue the job of zoning enforcement officer on a "consultant" basis or to convert it to the traditional thirty-five hour per week job with full fringe benefits; and also whether to continue employing the complainant in either capacity.
7. It is found that the notice of the July 23 meeting consisted of the following memorandum to the town clerk, which was copied to the chairman of the zoning board of appeals:
Please be advised that there will be a Special Zoning Commission meeting on Thursday, July 23, 1992, 7:30 p.m., lower lounge of the Town Hall, to go into executive session.
8. It is found that the complainant learned of the meeting during the afternoon of July 23, 1992, but not of its actual purpose.
9. It is found that the complainant indicated to the chairman of the respondent his desire to attend the meeting, as he was normally present at the respondent's meetings, but was advised not to.
10. It is found that the respondent convened in executive session for the entirety of the July 23 meeting.
11. It is found that the respondent discussed in that executive session:
a. whether the position of zoning enforcement officer should continue as a 30-hour per week job without fringe benefits, or be converted to a 35-hour per week job with fringe benefits;
b. the complainant's productivity, knowledgeability, and the adequacy of his site plan reviews; and
c. a background investigation of the complainant performed by the Old Saybrook police department.
12. It is found that the respondent during the course of its meeting reached a consensus not to continue the employment of the complainant.
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13. It is found that the respondent notified the complainant of the termination of his employment on July 24, 1992.
14. The respondent maintains that the July 23 assemblage was not a meeting within the meaning of 1-18a(b), G.S., because the respondent was a personnel search committee within the meaning of 1-18a(f), G.S.
15. Section 1-18a(b), G.S., provides in relevant part that the term "meeting" does not include any meeting of a personnel search committee for executive-level employment candidates.
16. Section 1-18a(f), G.S., provides in relevant part:
"Personnel search committee" means a body appointed by a public agency, whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position. ...
17. It is found that the respondent took no steps to appoint either itself or a subcommittee of itself as a personnel search committee.
18. It is also found that the respondent itself had hired the complainant, and offered no evidence to prove that it separated its role as a search committee from that of an appointing agency.
19. It is also found that no other candidates were recommended or considered at the July 23 meeting.
20. It is therefore found that the purpose of the July 23 meeting was not to recommend a candidate or candidates for employment, but rather to terminate the employment status of the complainant.
21. It is concluded that the July 23 meeting of the respondent was not a meeting of a personel search committee within the meaning of 1-18a(f), G.S.
22. It is found that the notice of the respondent's July 23 meeting fails to specify the business to be transacted within the meaning of 1-21(a), G.S.
23. It is concluded that the respondent violated 1-21(a), G.S., by failing to specify the business to be transacted in a notice of that meeting.
24. It is found that the respondent discussed the complainant's employment, performance, evaluation and dismissal at its July 23 meeting in executive session.
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25. It is found that the respondent failed to give the complainant notice that it would discuss the matters described in paragraph 24, above.
26. Section 1-18a(e)(1) provides that any public officer or employee may require discussion concerning his employment, performance, evaluation or dismissal be in public.
27. The respondent maintains that the complainant is not a public officer or employee, but rather a consultant.
28. It is found that the complainant performed all the duties of a zoning enforcement officer.
29. It is found that the complainant's hours of employment were determined by the respondent.
30. It is found that the complainant worked for an hourly wage.
31. It is found that the respondent determined the complainant's work assignments.
32. It is found that the complainant used the respondent's, and not his own, tools and materials to perform his job.
33. It is found that the complainant used the services of a temporary clerical person, who was paid by the respondent and not the complainant.
34. It is found that the complainant maintained an office only in the Old Saybrook town hall.
35. It is found that the complainant did not serve as a "consulting" zoning enforcment officer for any other city or town.
36. It is found that the complainant's employment was at the will of the respondent, and not subject to any consulting contract.
37. It is found that the designation of the complainant as a "consultant" was for budgetary reasons unconnected to the nature of the complainant's employment.
38. It is concluded that the complainant was a public officer or a public employee within the meaning of 1-18a(e)(1), G.S.
39. It is concluded that the respondent violated 1-18a(e)(1), G.S., by failing to provide the complainant a reasonable opportunity to require that the July 23 discussion be conducted in public.
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40. With respect to the allegation described in paragraph 2.c, above, it is found that the complainant has not alleged a violation of the FOI Act.
41. The respondent maintains that it took no action at its July 23, 1992 meeting that is subject to a null and void order, because the respondent merely reached a consensus not to recommend to the board of selectmen the appointment of the complainant as a full-time permanent zoning enforcement officer.
42. It is found, however, that the respondent also reached a consensus to terminate the employment of the complainant.
43. It is also concluded that the consensus of the respondent to terminate the complainant was a vote within the meaning of 1-21(a), G.S.
44. It is additionally concluded that the vote of the respondent to terminate the complainant was not "discussion" within the meaning of 1-18a(e)(1), and was therefore not permissibly conducted in executive session.
45. It is found that the respondent offered no evidence to justify its failure to notify the complainant that they were intending to discuss his performance and termination in executive session.
46. It is also found that the respondent offered no evidence why the action it took at its July 23 meeting to terminate the complainant should not be declared null and avoid, other than to assert that it actually took no action at the meeting, an assertion which the Commission finds contradicted by the finding in paragraph 12, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The actions of the respondent at its July 23, 1992 meeting to terminate the complainant's employment are hereby declared null and void.
2. Henceforth the respondent shall strictly comply with the requirements of 1-18a(b), 1-18a(e)(1), 1-18a(f), and 1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 28, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
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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:
c/o Atty. Donald J. Deneen
O'Malley, Deenen, Messina & Oswecki
20 Maple Avenue
P.O. Box 504
Windsor, CT 06095
Old Saybrook Zoning Commission
c/o Atty. Jeremiah Donovan
123 Elm Street
Old Saybrook, CT 06475
Debra L. Rembowski
Acting Clerk of the Commission