FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 93-50
Regional School District No. 12 Board of Education,
Respondent September 8,1993
The above-captioned matter was heard as a contested case on June 22 and July 11, 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 February 25, 1993, the complainant appealed to the Commission, alleging that the respondent convened in executive session on February 19, 1993 without a vote and for an improper purpose.
3. It is found that the complainant sought to have a bus stop moved for the safety of her child.
4. It is found that the school administration declined to change the bus stop.
5. It is found that, after the respondent ratified the administration's decision at a January 1993 meeting, the complainant requested in writing a formal hearing on the matter.
6. It is found that the respondent conducted a formal hearing on the matter on February 10, 1993.
7. It is found that the respondent subsequently met on February 18, 1993 to deliberate on the evidence and argument produced at the February 10, 1993 meeting and to decide whether to move the bus stop.
8. It is found that the respondent voted to convene in executive session at the Feburary 18, 1993 meeting.
9. It is found that the stated purpose for the respondent's executive session was pending litigation.
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10. The respondent maintains that its purpose for convening in executive session was proper because the complainant, by requesting a hearing, presenting a formal case through her husband, an attorney, and creating the impression that she would pursue the matter, had set forth a demand for legal relief within the meaning of 1-18a(g) and (h), G.S.
11. Specifically, the respondent maintains that the complainant's written demand for the formal hearing that was held on February 10, 1993, her earlier requests to put the matter of the school bus stop on the respondent's agenda, and her initial request for a written explanation from the superintendent's office for declining to make the bus stop change, all constitute a demand for legal relief within the meaning of 1-18a(g) and (h), G.S.
12. Section 1-18a(g), G.S., defines "pending claim" to mean, in part, a written notice to an agency which sets forth a demand for legal relief.
13. Section 1-18a(h), G.S., defines "pending litigation to mean, in part, a written notice to an agency which sets forth a demand for legal relief.
14. Section 1-18a(e)(2), G.S., provides in relevant part that an executive session is permitted for the purpose of strategy and negotiations with respect to pending claims and litigation.
15. It is found that there was no pending claim or litigation before the respondent on February 18, 1993.
16. It is also found that the real purpose for the respondent's executive session was to deliberate upon the evidence and arguments made at the respondent's February 10, 1993 hearing.
17. It is found that the respondent actually convened in executive session to avoid media and political scrutiny of its deliberation.
18. It is found that the respondent failed to prove that the purpose of the executive session was strategy or negotiations with respect to pending claims or litigation within the meaning of 1-18a(e)(2), G.S.
19. It is concluded that the respondent violated 1-21(a) and 1-18a(e)(2) by convening in executive session to deliberate on its decision whether to move the bus stop.
20. The Commission notes that, even if a claim or litigation had been pending before the respondent, an executive session to discuss the respondent's decision whether to move the
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bus stop, as distinguished from strategy or negotiation concerning any claim or litigation, would still be clearly impermissible.
20. At the hearing, the complainant requested that the Commission declare the actions by the respondent at its February 18, 1993 meeting to be null and void.
21. It is found that the complainant appealed the respondent's decision to the State Board of Education.
22. It is found that the State Board of Education, through its impartial hearing board, also concluded that the respondent violated 1-18a, G.S., by conducting deliberations on the complainant's request in executive session.
23. It is also found that the impartial hearing board concluded that the respondent had violated the applicable rules of evidence and the complainant's rights under the Uniform Administrative Procedure Act by permitting a witness to read into the record of the hearing a document which had properly been excluded from evidence.
24. It is also found that the impartial hearing board concluded that the respondent had violated rules of fairness by denying the complainant an opportunity to bring a misstatement to the respondent's attention, and by denying the complainant an opportunity for rebuttal argument.
25. It is also found that the impartial hearing board concluded, under the circumstances of that case, that the procedural errors described in paragraphs 22 through 24, above, were harmless, and that remanding the matter to the respondent for reconsideration would be a futile act, because the actual issue concerning the bus stop was "not a close case."
26. The Commission in its discretion therefore declines to declare null and void the actions taken at the respondent's February 18, 1993 meeting.
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 1-21(a) and 1-18a(e)(2), G.S.
2. The Commission advises the respondent that it agrees with the comment of the impartial hearing board of the State Board of Education that "[s]uch violations must stop." In the future, the Commission will not consider the defenses raised by the respondent in this case to be reasonable grounds for a
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violation of 1-21(a) and 1-18a(e)(2), G.S. Any further such violation will expose the respondent to liability for a civil penalty of up to $1,000.00 pursuant to 1-21i(b), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 8, 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. Randall J. Carreira
New Milford Savings Bank Plaza
Bridgewater, CT 06752
Regional School District No. 12 Board of Education
c/o Atty. Diane Whitney
Pepe & Hazard
Hartford, CT 06103-4302
Debra L. Rembowski
Acting Clerk of the Commission