FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Paul J. Ganim,
against Docket #FIC 92-350
Monroe Board of Police Commissioners,
Respondent June 23, 1993
The above-captioned matter was heard as a contested case on April 29, 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 November 17, 1992, the complainant appealed to the Commission, alleging that the respondent:
a. held a secret meeting just before its scheduled meeting on November 5, 1992;
b. failed to keep minutes or a record of vote of the scheduled meeting on November 5, 1992;
c. improperly convened in executive session;
d. excluded the public from the portion of the scheduled meeting on November 5, 1992 conducted in executive session;
e. prohibited the complainant from making a tape recording of the scheduled meeting;
f. excluded the complainant from a portion of the scheduled meeting conducted in executive session; and
g. refused to recuse one of its members from the scheduled meeting.
3. It is found that the complainant is an attorney who represents a police officer.
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4. It is found that the chief of the Monroe police department had reprimanded the complainant's client, and the client filed a grievance concerning that reprimand.
5. It is found that the chief denied the grievance at a step one grievance proceeding.
6. It is found that the client appealed the grievance to the respondent in a step two proceeding.
7. It is found that the respondent scheduled the step two proceeding for 7:30 p.m. on November 5, 1992, and actually met beginning at approximately 7:45 p.m. for the purpose of deciding what action to take.
8. It is concluded that the 7:45 proceeding was a meeting within the meaning of 1-18a(b), G.S.
9. It is found that members of the respondent convened at about 7:15 p.m. in the chief's office.
10. It is found that members of the respondent remained in the chief's office until approximately 7:45, waiting for one member to arrive.
11. It is found that the members of respondent did not, during the time they were assembled in the chief's office, discuss matters within their control, jurisdiction or supervisory powers within the meaning of 1-18a(b), G.S.
12. It is therefore concluded that the respondent did not conduct a meeting within the meaning of 1-18a(b), G.S., before its scheduled meeting.
13. It is found that respondent convened in executive session shortly after the beginning of the scheduled meeting.
14. It is found that a motion was made and seconded to convene in executive session, and the chairman determined that there was no objection to the motion.
15. It is found, however, that the respondent failed to state a reason for convening in executive session.
16. It is also found that the respondent failed to conduct a public vote to convene in executive session.
17. It is concluded that the respondent violated 1-21(a), G.S., by the omissions described in paragraphs 15 and 16, above.
18. The complainant maintains that he and other members of the public were improperly excluded from the grievance proceeding, because the proceeding should have been conducted as a hearing that was open to the public.
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19. It is found that the wife of the complainant's client was excluded from the entirety of the executive session, and that the complainant and his client were directed to leave after they had presented their side of the case concerning the grievance.
20. It is found that the complainant expected that the grievance proceeding would be conducted as a hearing.
21. It is found that the grievance proceeding was not conducted as a hearing.
22. It is also found, however, that the purpose of the executive session was principally to discuss issues of policy and procedure concerning whether the chief of police may issue a reprimand after the subject officer has already been investigated by a police captain.
23. The respondent maintains that it properly convened in executive session pursuant to the purpose permitted by 1-18a(e)(1), because matters concerning the performance of either the chief or the complainant's client could have arisen.
24. It is found, however, that discussion of the performance of the chief and the complainant's client was not the purpose of the executive session, and that, had such matters arisen, the respondent could then have convened in executive session specifically for that purpose.
25. The respondent argues that the executive session was permissible pursuant to 1-18a(e)(2), as strategy and negotiation with respect to pending claims or pending litigation.
26. It is found, however, that the respondent failed to prove that the purpose of the executive session was strategy and negotiation with respect to pending claims or pending litigation.
27. It is found that the respondent actually convened in executive session for the purpose of deciding whether to accept or deny a grievance, based on the issue described in paragraph 22, above.
28. It is therefore concluded that the respondent violated 1-21(a) and 1-18a(e), G.S., by convening in executive session for an improper purpose.
29. It is found that the respondent prohibited the complainant from making a tape recording of the grievance proceeding.
30. Section 1-21a, G.S. provides in relevant part:
At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-21, proceedings of such agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person ....
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31. It is found that the respondent prescribed no rules regarding the recording of its proceedings prior to the November 5, 1992 meeting.
32. It is found, based on the conclusion stated in paragraph 28, above, that the November 5, 1992 meeting was legally open to the public pursuant to 1-21, G.S.
33. It is concluded that the respondent violated 1-21a(a), G.S., by prohibiting the complainant from tape recording the proceeding.
34. It is also concluded that the respondent violated 1-21, G.S., by excluding the public from the portions of the meeting not permissibly held in executive session and which were required to be conducted in public.
35. With respect to the allegation that the respondent made no minutes or record of its meeting, it is found that the respondent did make minutes of its November 5, 1992 meeting.
36. At the hearing, the respondent conceded that the minutes of the November 5, 1992 meeting do not contain a record of the votes taken at that meeting.
37. It is concluded that the respondent violated 1-21, G.S., by failing to reduce the votes of each of its members to writing and recording those votes in the minutes of the meeting.
38. With respect to the allegation that a member of the respondent failed to recuse himself from the November 5, 1992 meeting, it is concluded that the complainant has not alleged a violation of the Freedom of Information Act.
39. In his complaint, the complainant requested that the actions of the respondent at its November 5, 1992 meeting be declared null and void.
40. It is found that the gravamen of the complaint is that the complainant was denied the right to participate in a hearing, and to call and cross-examine witnesses.
41. It is found that the complainant does not have a right to a hearing on the grievance pursuant to the Freedom of Information Act, and that invalidating the actions taken at the meeting in question would neither give him the right to a hearing nor be likely to affect the outcome of the grievance proceeding, which in any event was appealable pursuant to the collective bargaining agreement.
42. The Commission in its discretion therefore declines to declare the actions taken at the meeting null and void.
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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 the requirements of 1-18a(e), 1-21, and 1-21a, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 23, 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:
Paul J. Ganim, Esq.
Ganim, Ganim & Ganim
4666 Main Street
Bridgeport, CT 06606
Monroe Board of Police Commissioners
c/o William Connon, Esq.
646 Prospect Avenue
Hartford, CT 06105
Debra L. Rembowski
Acting Clerk of the Commission