In the Matter of a Complaint by                        Final Decision


Sydney M. Libby,




            against                          Docket #FIC 93-242


Middletown Board of Ethics,


                        Respondent                  January 26, 1994


            The above-captioned matter was heard as a contested case on November 30, 1993, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This case was consolidated for hearing with Docket #FIC 93-248, Sydney M. Libby against Middletown Board of Ethics.


            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 July 20, 1993, the complainant appealed to the Commission, alleging that the respondent met in secret session without prior notice on July 6, 1993.


            3.         It is found that the respondent held a regular meeting on July 6, 1993 to review certain complaints of ethics violations.


            4.         It is found that the respondent filed a schedule of its regular meetings with the Middletown city clerk on December 23, 1992.


            5.         It is found that the respondent also filed an agenda and additional notice for its July 6, 1993 meeting with the Middletown city clerk on June 30, 1993.


            6.         The complainant maintains that no notice of the July 6, 1993 meeting was actually posted in the city clerk's office, and that the agenda of the July 6, 1993 meeting was not available at the meeting itself.


            7.         Section 1-12(a), G.S., provides in relevant part:


            The chairman or secretary of any such public agency of any political subdivision of the state shall file, not


Docket #FIC 93-242                           Page 2


            later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed.  The agenda of the regular meetings of every public agency, except for the general assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business ....


            8.         It is concluded that the respondent fulfilled the notice and agenda requirements of 1-21(a), G.S., with respect to its July 6, 1993 regular meeting.


            9.         The complainant further maintains that the respondent's notice of its July 6, 1993 meeting was inadequate in that it did not expressly apprise the public that matters would be considered in closed session.


            10.       The Commission notes that, as a matter of good public policy, public agencies would do well to inform the public if they expect substantial portions of their meetings to be closed to the public.


            11.       It is concluded, however, that nothing in 1-21(a), G.S., requires that the agenda for a public meeting apprise the public that all or portions of the meeting will be closed to the public.


            12.       It is found that at its July 6, 1993 meeting the respondent convened in closed session, which it called an executive session, to discuss two ethics complaints brought by the complainant in this matter against two city officials.


            13.       In his complaint, the complainant alleges that the closed session was impermissible because meetings to discuss ethics violations are not a proper subject for an executive session pursuant to 1-18a(e), G.S.


            14.       The respondent maintains that the closed session was, however, permissible pursuant to 1-82a, G.S.


            15.       Section 1-82a, G.S., provides in relevant part:


                        (a) Unless the [state ethics] commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent.  A commission evaluation of a possible violation of this part prior to the filing of a complaint by the commission shall be confidential except upon the request of the subject of the evaluation....


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                        (b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent.  If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.


            16.       Section 7-148h, G.S., provides that 1-82a(a) through (e), G.S., shall apply to the investigation and finding of probable cause by any municipal agency created to investigate allegations of unethical conduct.


            17.       It is found that the the July 6, 1993 meeting was convened to investigate whether a probable cause finding was warranted, and that no probable cause finding was made.


            18.       It is concluded that the respondent's July 6, 1993 meeting was appropriately closed to the public pursuant to 1-82a and 7-148h, G.S.


            19.       At the hearing, the respondent requested that civil penalties be assessed against the complainant pursuant to 1-21i(b), G.S., on the grounds that the complaint was frivolous, without reasonable grounds, and solely for the purpose of harasssing the respondent.


            20.       It is found, however, that the complainant had reasonable grounds for the filing of the complaint, and that the Commission was presented with no evidence to support a finding of harassment.


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


            1.         The complaint is dismissed.


            2.         The Commission urges the respondent, in light of the findings in paragraphs 9 through 11 of the findings, above, to help avoid public confusion by specifying, where appropriate, those meetings or portions of meetings from which the respondent expects the public to be excluded.


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Approved by Order of the Freedom of Information Commission at its special meeting of January 26, 1994.



                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission


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Sydney M. Libby

c/o Timothy Everett, Esq.

Todd Fernow, Esq.

UConn Legal Clinic

65 Elizabeth Street

Hartford, CT 06105


Middletown Board of Ethics

c/o Timothy Lynch, Esq.

Deputy City Attorney

245 DeKoven Drive

P.O. Box 1300

Middletown, CT 06457



                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission