FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Stephanie Brenowitz, John Reilly and The Hour,  

Complainants

 

against

Docket #FIC 1996-235

Norwalk Economic Opportunity Now (NEON),  

Respondent

April 23, 1997

The above-captioned matter was heard as a contested case on December 18, 1996, 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 30, 1996 and postmarked on May 31, 1996, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by conducting an executive session on May 1, 1996, at which it improperly considered and voted on the expenditure of settlement amounts to two individuals who filed complaints against the respondent and its executive director with the state Commission on Human Rights and Opportunities ("CHRO").

3. With respect to the allegations contained in paragraph 2, above, the respondent claims the following:

the complaint should be dismissed because the complaint in the matter was filed beyond the thirty day period prescribed by 1-21i, G.S.;

the complaint should be dismissed because it was incomplete as of June 17, 1996, and the matter was not docketed until September 1996, well beyond the thirty day period prescribed by 1-21i, G.S.; and,

the May 1, 1996 executive session at issue was proper pursuant to 1-18a(e)(2), G.S.

4. The complainant claims that the respondent should approve the expenditure of public funds publicly and should account for the source of any money expended in settlement of the claims against it or its members.

5. Section 1-21i(b)(1), G.S., in relevant part, states:

… A notice of appeal shall be filed within thirty days after such denial …. [S]uch notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission….

6. It is found that the complaint in this matter is deemed filed on its May 31, 1996 postmark date, which is within the thirty day period after the executive session on May 1, 1996, and is, therefore, in accordance with the provisions of 1-21i, G.S.

7. Accordingly, the respondent’s motion to dismiss identified in paragraph 3a., above, is herein denied.

8. It is also found that the provisions of 1-21i, G.S., do not require that the initial complaint include the mailing address and telephone number of the public agency alleged to have violated the FOI Act and do not impose a requirement that a contested case be docketed by the Commission within thirty days or any other time period.

9. Accordingly, the respondent’s motion to dismiss identified in paragraph 3b., above, is herein denied.

10. Section 1-21, G.S., in pertinent part, provides:

the meetings of all public agencies, except executive sessions as defined in subsection (e) of section 1-18a, shall be open to the public….

11. Section 1-18a(e), G.S., in pertinent part, provides:

"Executive sessions" means a meeting of a public agency at which the public is excluded for one or more of the following purposes:
…(2) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; ….

12. Section 1-18a(g), G.S., defines "pending claim" as:

…a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted….

13. It is found that on May 1, 1996, there were "pending claim(s)", as defined in 1-18a(g), G.S., before the CHRO that were against the respondent’s board of directors and its executive director for allegedly engaging in acts of sexual harassment.

14. It is found that the respondent’s stated purposes for convening in executive session at its May 1, 1996 meeting were unclear and that the complainants and the public could reasonably believe that the respondent convened in executive session to consider and vote on the expenditure of public funds, in violation of 1-21(a), G.S.

15. However, it is also found that during its May 1, 1996 meeting, the respondent entered an executive session to consider strategy with respect to settling the pending claims, as more fully described in paragraph 13, above.

16. It is also found that the respondent did not vote to appropriate funds during the course of the subject executive session.

17. Consequently, it is concluded that the respondent’s executive session of May 1, 1996 was held for a permissible purpose, pursuant to 1-18a(e)(2), G.S.

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

The complaint is hereby dismissed.

Although the Commission is constrained to rule in favor of the respondent in this case because technically there was no violation of the FOI Act, the respondent’s failure to clearly state the reasons for convening in executive session and in sufficient detail to fairly apprise the complainants and the public of the subject of the executive session unnecessarily led to the filing of this complaint and to the unnecessary waste of resources to the detriment of the complainants, the taxpayers of Norwalk and the State of Connecticut.

Approved by Order of the Freedom of Information Commission at its regular meeting of April 23, 1997.

__________________________
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:

Stephanie Brenowitz, John Reilly and The Hour
346 Main Avenue
Norwalk, CT 06851

Norwalk Economic Opportunity Now (NEON)
c/o Donald F. Houston, Esq.
1057 Broad Street
Bridgeport, CT 06604

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-235/FD/eal/04301997