FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Frank X. LoSacco,
against Docket #FIC 94-323
Lynn M. Raccio, Ed Eldridge, Joel Young, Ed Streeto and
Middletown Board of Ethics; and Thomas Serra, Mayor of Middletown,
Respondents July 12, 1995
The above-captioned matter was heard as a contested case on April 6, 1995, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed September 14, 1994, the complainant appealed to the Commission, alleging that the respondent board of ethics and its named members convened in executive session on August 16, 1994 to discuss the payment of outside counsel in connection with two ethics complaints against certain public officials; and alleging that his August 19, 1994 request to the respondents mayor and chair of the board of ethics to see the full text of the bills was denied.
3. It is found that the respondent board of ethics held a regular meeting on August 16, 1994.
4. It is found that the respondent board of ethics convened in executive session at its August 16, 1994 meeting to discuss, among other things, legal fees incurred for the defense of ethics complaints.
5. It is found that all of the individually named respondent members of the board of ethics were present at the August 16, 1994 meeting.
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6. It is found that certain city of Middletown employees had been the subjects of complaints before the respondent board of ethics.
7. It is found that those individuals retained outside counsel to represent them.
8. It is found that the outside counsel defended the individuals against the ethics complaints before the respondent board of ethics.
9. It is found that the city intended to reimburse the individuals for the outside counsel's fees, provided no probable cause was found to support the ethics complaints, and provided that the fees were reasonable and appropriate.
10. It is found that the outside counsel were, in the context of this case, legal counsel only to the employees who were the subjects of the ethics complainants, and performed no legal work for the respondent board of ethics.
11. It is found that the respondent board of ethics reviewed the legal bills for the city's finance department in order to determine if the bills were reasonable and appropriate.
12. It is found that the complainant by letter dated August 19, 1994 requested that the respondents Serra and Raccio allow him to review the two legal bills that were approved at the respondent board of ethics' August 16, 1994 meeting.
13. It is found that the complainant was provided only with redacted copies of the bills.
14. The Commission takes administrative notice of its record and final decision in Docket #FIC 94-165, Sydney Libby against Director, Middletown Finance Department, in which case the Commission concluded that the requested legal bills were not exempt from disclosure, and ordered that the bills be disclosed, permitting redaction of the names of the individuals against whom ethics complaints had been made.
15. It is therefore concluded that the respondents violated 1-19(a), G.S., by failing to make the requested legal bills, absent the names of the individuals against whom ethics complaints had been made, available to the complainant for inspection.
16. The respondents maintain that the executive session was proper pursuant to 7-148h, 1-82a(d), 1-18a(e)(5), and 1-19(b)(2), G.S.
17. Section 7-148h, G.S., provides that 1-82a(d), G.S., is applicable to municipal ethics commissions.
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18. Section 1-82a(d), G.S., provides in part that an ethics commission may not reveal the existence of a complaint absent a finding of probable cause.
19. Section 1-18a(e)(5), G.S., permits an agency to convene in executive session to discuss any matter where public discussion would result in the disclosure of records that are exempt from disclosure pursuant to 1-19(b), G.S.
20. Section 1-19(b)(2), G.S., provides that an agency is not required to disclose personnel, medical or similar files, if disclosure would constitute an invasion of personal privacy.
21. It is found that the legal bills at issue do not contain material that under ordinary circumstances would be pertinent to traditional personnel decisions.
22. It is therefore concluded that the legal bills are not personnel or similar files within the meaning of 1-19(b)(2), G.S.
23. Further, the Commission having previously concluded that the subject legal bills, absent the names of the individuals who were the clients, are required to be disclosed, it is therefore concluded that the respondent could not permissibly convene in executive session pursuant to 1-18a(e)(5) solely to discuss non-exempt public records.
24. The respondents maintain, however, that the "entire case" concerning the subjects of the complaints before the ethics commission was discussed in executive session.
25. It is found, however, that the respondent failed to prove that discussion of the propriety of the legal bills could not have been kept separate from discussion of any confidential facts concerning the ethics complaints themselves.
26. In particular, it is found that redacted forms of the bills were made available to the complainant, and that the redacted forms of the bills could have been discussed in open session, even if other portions of a pertinent discussion needed to be conducted in executive session.
27. It is also expressly found that the respondents' testimony that everything discussed in executive session related to the confidential facts of the ethics complaint was not credible.
28. The Commission notes that, since only the names of the clients were permissibly withheld, the respondents could have discussed the bills in public session without identifying the individuals who had received legal services, and did not need to convene in executive session to protect those individuals' identities.
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29. The respondents nonetheless maintains that they could not discuss the bills publicly, because they are prohibited by 1-82a and 7-148h, G.S., from revealing the fact that ethics complaints were pending.
30. However, the respondents concede that it was known publicly that the bills were paid in certain amounts for the defense of certain individuals.
31. It is found that the fact that ethics complaints had been filed against city employees was already public knowledge, and that discussing the propriety of those bills without discussing the identity of the employees would not, under the facts of this case, have revealed anything about the complaints themselves--only that the individuals' defense was to be paid for by the city, and that the propriety of the bills was to be determined by the agency that heard the complaints.
32. It is also found that the respondent board of ethics' review of the legal bills incurred by the individuals who were investigated by the respondent was entirely separate from its duties in making a determination concerning the complaints themselves. The Commission again takes administrative notice of its record and final decision in Docket #FIC 94-165, Sydney Libby against Director, Middletown Finance Department, in which case the Commission found that the legal bills simply were not records of the board of ethics' investigation, but were financial records that, by necessity, were entirely separate from the board's record of investigation.
33. It is therefore concluded that the respondent board of ethics and its members violated 1-21(a) and 1-18a(e)(5), G.S., by convening in executive session to discuss matters that were not exempt from disclosure.
34. After the hearing on this complaint, the respondent by letter dated May 31, 1995, and the complainant by letter dated June 5, 1995, each alleged that the other's witnesses had committed perjury at the April 6, 1995 hearing on this complaint.
35. Specifically, the respondents alleged that the complainant had lied about ever being convicted of making a false statement; and the complainant alleged that the respondent Raccio had lied about whether a vote had been taken while the respondent was convened in executive session.
36. It is found that both witnesses appear to have been less than candid with the Commission.
37. It is also found that the complainant's credibility concerning any controverted facts material to this case is not at issue.
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38. It is also found that the respondent witness's credibility concerning controverted facts material to this case has already been addressed in paragraph 27 of the findings, above.
39. The Commission concludes that there is no necessity to make any further findings concerning the credibility of witnesses or the underlying facts of this case.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth the respondents shall strictly comply with the requirements of 1-19(a), 1-21(a), and 1-18a(e)(5), G.S.
2. The respondent shall forthwith provide the complainant an opportunity to inspect the requested legal bills. In complying with this order, the respondent may redact the names of the individuals against whom ethics complaints had been made.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 12, 1995.
Debra L. Rembowski
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:
FRANK X. LOSACCO
P.O. BOx 1125
Middletown, CT 06457
LYNN M. RACCIO, ED ELDRIDGE, JOEL YOUNG, ED STREETO AND MIDDLETOWN BOARD OF ETHICS; AND THOMAS SERRA, MAYOR OF MIDDLETOWN
c/o Timothy P. Lynch, Esq.
Deputy City Attorney
City Attorneys Office
245 DeKoven Drive
Middletown, CT 06457
Debra L. Rembowski
Clerk of the Commission