FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Karen Florin and The Day,
against Docket #FIC 95-158
East Lyme Board of Education,
Respondent March 13, 1996
The above-captioned matter was heard as a contested case on November 21, 1995, at which time the complainants 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 dated May 12, 1995 and filed via facsimile May 11, 1995, the complainants appealed to the Commission and alleged that the respondent violated the Freedom of Information ("FOI") Act by: (1) meeting without notice to the public on May 2, 1995 and failing to publish minutes of such meeting; and (2) improperly convening in executive session on May 9, 1995. In addition, the complainants requested that the Commission order the respondent to attend an educational FOI workshop.
3. It is found that on May 2, 1995, six members of the respondent held a hearing and voted to expel a student from high school.
4. It is found that the respondent did not notice its May 2, 1995 hearing as a public meeting.
5. The respondent claims that its May 2, 1995 hearing was not a "meeting" but an "administrative hearing" exempt from the meetings provisions of the FOI Act pursuant to 10-233d, G.S.
6. Section 1-21(a), G.S., provides, in pertinent part:
"The meetings of all public agencies, except executive sessions as defined in subsection (e) of section 1-18a, shall be open to the public."
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7. Section 1-18a(b), G.S., provides, in relevant part:
"'Meeting' means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a mulitimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. 'Meeting' shall not include ... an administrative or staff meeting of a single-member public agency..." (Emphasis added.)
8. Section 10-233d, G.S., provides, in relevant part:
"(a) Any local or regional board of education, at a meeting at which three or more members of such board are present, or the impartial hearing board established pursuant to subsection (b) of this section, may expel, subject to the provisions of this subsection, any pupil whose conduct endangers persons or property or is seriously disruptive of the educational process, or is violative of a publicized policy of such board, provided a majority of the board members sitting in the expulsion hearing vote to expel and that at least three affirmative votes for expulsion are cast... (Emphasis added.)
9. The respondent claims that by amending 10-233d, G.S., in 1979, to authorize boards of education to expel students with as few as three members present, the legislature also intended to exempt expulsion hearings from the meetings requirements of the FOI Act.
10. It is found that 10-233d, G.S., does not state an exemption to the meetings requirements of the FOI Act.
11. It is found that the expulsion hearing held by the respondent on May 2, 1995, was a hearing, and therefore a "meeting" of the respondent within the meaning of 1-18a(b), G.S.
12. It is found that the respondent is a multimember public agency comprised of ten individual members, and that six members constitutes a quorum.
13. It is further found that the expulsion hearing held by six members of the respondent on May 2, 1995, was a convening or assembly of a quorum of the respondent, and also therefore a "meeting" within the meaning of 1-18a(b), G.S.
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14. The respondent also maintains that expulsion hearings are not "meetings" for purposes of the FOI Act because it is difficult to convene in executive session, and impossible to comply with 1-21g(a), G.S., without identifying the student concerned.
15. Section 1-21g(a), G.S., provides, in relevant part:
"[T]he minutes of an executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed."
16. Section 1-19(b)(11), G.S., permits the nondisclosure of:
"names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each student who is younger than eighteen years of age..."
17. It is found that nothing requires the respondent to personally identify the student being disciplined, or any student witnesses, in either a notice of special meeting or in a motion to enter an executive session.
18. It is further found that pursuant to 1-19(b)(11), G.S., the respondent is not required to identify any student names in its executive session minutes, unless the consent of the student, or the student's guardian, has been obtained. Consequently, 1-21g(a), G.S., does not provide a basis for concluding that student expulsion hearings are not "meetings" within the meaning of 1-18a(b), G.S.
19. It is found that the respondent issued a memorandum of decision following its May 2, 1995 meeting, which indicates that the board voted 6-0 to expel a certain student.
20. It is concluded that the memorandum of decision would be a sufficient record of the respondent's proceedings to constitute minutes of the May 2, 1995 meeting, except that it fails to identify which members of the respondent were present, or the time and place of the meeting.
21. It is concluded that by meeting without notice to the public on May 2, 1995, and filing incomplete minutes of such meeting, the respondent violated 1-21(a), G.S.
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22. With respect to its May 9, 1995 meeting, it is found that the respondent convened in executive session for 20-35 minutes to evaluate the board's recent performance in the May 2, 1995 expulsion hearing.
23. The respondent claims that it properly convened in executive session on May 9, 1995, because it only discussed interpersonal relationships between board members.
24. The Commission takes administrative notice of docket #FIC 91-35, Eliot C. White, William H. Watson and The Record- Journal v. Wallingford Board of Education, which concluded that a public agency may properly convene in executive session to discuss interpersonal relationships pursuant to 1-18a(e)(1), G.S.
25. It is found, however, that the respondent also discussed the conduct of certain board members at the May 2, 1995 hearing, and that the discussion was not limited solely to interpersonal relationships between board members.
26. It is further found that the Assistant Superintendent of Schools for East Lyme, who is not a member of the respondent, was invited into the executive session on May 9, 1995, to present testimony concerning the board's conduct at the May 2, 1995 hearing, and remained for the entire executive session.
27. It is found that the Assistant Superintendent's presence was not necessary to the discussion concerning interpersonal relationships between the respondent's members and that his presence during such discussion violated 1-21g(a), G.S.
28. It is found that the board's conduct at the expulsion hearing was not a proper topic for executive session under 1-18a(e), G.S.
29. It is concluded that by discussing a topic in executive session, which is not permitted by 1-18a(e), G.S., the respondent violated the provisions of 1-21(a), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall file completed minutes of its May 2, 1995 meeting, containing the specific information described in paragraph 20 of the findings, above, and provide them to the complainant, without charge.
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2. In complying with paragraph one of the order, above, the respondent may redact from the minutes the names of, or other personally identifying information about, any students whose consent to disclosure has not been obtained.
3. Henceforth, the respondent shall strictly comply with the requirements of 1-18a(e), 1-21(a) and 1-21(g)a, G.S.
4. The Commission declines to order the respondent to attend an educational FOI workshop, but advises the respondent that the Commission's staff is available to conduct such workshops upon request.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 13, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 95-158 Page 6
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:
Karen Florin and The Day
P.O. Box 1231
New London, CT 06320-1231
East Lyme Board of Education
c/o Donald W. Strickland, Esq.
370 Asylum Street
Hartford, CT 06103
Elizabeth A. Leifert
Acting Clerk of the Commission