FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF
In the Matter of a Complaint by Final Decision
Richard F. Massaro,
against Docket #FIC1995-357
Allingtown Board of Fire Commissioners,
Respondent August 28, 1996
The above-captioned matter was heard as a contested case on April 2, 1996, at which time the complainant and respondent appeared 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 dated October 10, 1995 and filed October 16, 1995, the complainant alleged that at the respondent’s October 3, 1995 regular meeting (“October meeting”) an executive session was called and convened to discuss an action that he took as chief of the Allingtown Fire District’s Department of Fire Service without ever informing him that he would be the subject of the executive session. The complainant also alleged that there were no minutes of the executive session, nor a record of votes kept or filed for the respondent’s October meeting.
3. The complainant further alleged that he received a two day suspension as a result of the discussions held and actions voted upon in the executive session, and he requested that all action taken at the October meeting be declared null and void.
4. It is found that the respondent held an October meeting at which a motion was made to add an executive session to the agenda to discuss the “E. Flander’s Case.”
5. The respondent commission concedes that: a) the complainant was discussed during the executive session convened at the October meeting, b) the complainant received no prior notification of the respondent’s intention to convene an executive session to discuss him, and c) by letter and memorandum dated October 3, 1995, the respondent notified the complainant of its decision to take disciplinary action against him in connection with the matter discussed in the executive session on that same date.
6. Section 1-18a(e)(1), G.S., in relevant part states that an executive session which excludes the public may be convened to discuss the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that such discussion be held at an open meeting” (emphasis added).
7. Counsel for the respondent board argues that once he became aware of the respondent’s actions at the October meeting he advised the respondent of the complainant’s right to have such discussions held in public session in accordance with the provisions of §1-18a(e)(1), G.S., and of his right to have a due process hearing prior to the imposition and enforcement of any disciplinary action against him.
8. It is concluded that the respondent violated the provisions of §§1-18a(e)(1) and 1-21(a), G.S., by failing to notify the complainant of its intention to discuss him in executive session at the subject October meeting.
9. Section 1-21(g), G.S., in relevant part provides that the attendance at an executive session is limited, and the minutes of an executive session must disclose all persons in attendance, except job applicants interviewed by the public agency.
1-21(a), G.S., requires, inter alia, that:
[t]he votes of each member of any such public agency shall be reduced to writing
and made available for public inspection within forty-eight hours and shall also be
recorded in the minutes of the session at which taken, which minutes shall be available
for public inspection within seven days of the session to which they refer.…
A public agency may hold an executive session as defined in [§1-18a(e), G.S.] upon
an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.
11. It is found that the respondent failed to provide evidence or testimony that
any votes taken at the October meeting were recorded and timely filed as required by §1-21(a), G.S.
12. It is found that the minutes of the respondent board’s October meeting do not indicate that the respondent board stated with any specificity a proper purpose for convening the executive session at issue as required by §§1-18a(e) and 1-21(a), G.S.
13. It is found that the respondent failed to provide evidence or testimony that
minutes of the executive session at issue were prepared and timely filed as required by §§1-21(a) and 1-21g, G.S.
14. It is concluded, therefore, that the respondent also violated the provisions of §§1-21(a) and 1-21g, G.S.
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1. The executive session and all actions resulting from, or pertaining to the executive session held at the respondent’s October meeting are hereby declared null and void.
Henceforth the respondent shall strictly comply with the
executive session and open meeting requirements set forth in §§1-18a(e)
and 1-21, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 28, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
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:
Richard F. Massaro
15 Battle Drive
West Haven, CT -6516
Allingtonw Board of Fire Commissioners
c/o Louis Smith Votto, Esq.
415 Main Street
West Haven, CT 06516
Elizabeth A. Leifert
Acting Clerk of the Commission