FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Naugatuck Treatment Company,|
|against||Docket #FIC 1998-207|
|Water Pollution Control
Borough of Naugatuck; and
Borough of Naugatuck,
|Respondents||December 9, 1998|
The above-captioned matter was heard as a contested case on October 22, 1998, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of § 1-18a(a), G.S.
2. By letter dated June 17, 1998 and postmarked on July 17, 1998, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information Act ("FOIA") by discussing, at meetings of the respondent board on June 18 and again on June 24, 1998 (the "meetings"), "matters in an executive session for a purpose not authorized under Conn. Gen. Stat. §1-18a(e)(1)-(5)".
3. At the hearing, the complainant provided a more specific statement of its complaint, alleging four itemized violations in connection with the meetings: a) that the respondent board convened an executive session at its June 24, 1998 meeting in violation of the FOIA because the notice for this special meeting did not state that an executive session was "business to be transacted" and a special meeting is not authorized to consider business not specified in its notice; b) that the respondents did not state the purposes of their executive sessions at the meetings with the specificity required by the FOIA; c) that the stated purposes for the executive sessions at the meetings were not purposes authorized by the FOIA; and more generally, d) that discussions were held at the executive sessions of the meetings that were not authorized by the FOIA.
4. Section 1-21(a), G.S., provides in pertinent part:
Notice of each special meeting of every public agency... shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the... office of the clerk of such subdivision for any public agency of a political subdivision of the state....The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency. [emphasis added]
5. Section 1-21(a), G.S., also provides in pertinent part:
A public agency may hold an executive session as defined in subdivision (6) of section 1-18a, 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 1-18a. [emphasis added]
6. Furthermore, §1-18a(6), G.S., states in part that:
"Executive sessions" means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (B) 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;....[emphasis added]
7. And finally, §1-21g(b), G.S., provides:
An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-18a. [emphasis added]
8. It is found that the notice for the respondent board's June 24, 1998 special meeting did not state that an executive session was "business to be transacted".
9. It is found that the notice for the respondent board's June 24, 1998 special meeting did state that the budget of the complainant was "business to be transacted".
10. It is found that the reasons stated at the June 18, 1998 meeting for the executive session were consideration of "pending legal matters" as well as discussion of the election of a chairman and secretary. It is also found that the reason stated at the June 24, 1998 meeting for the executive session was consideration of "ongoing legal matters". The statements of purpose, "pending legal matters" and "ongoing legal matters", were substantially closer to the terms pending claims or pending litigation in §1-18a(6)(B), G.S., than the accurate, but incomplete reference by complainants counsel to the respondents statement of purpose as having been only legal matters.
11. It is found that at the time of the meetings the respondents had major, pending disputes with the complainant, including both pending litigation and pending claims. At least one of the respondents was a party to the Laurel Park and Beacon Heights super- fund cases pending in federal court as well as the administrative actions pending before the federal Environmental Protection Agency and the state Department of Environmental Protection. Finally, counsel for the respondent borough had sent the April 27, 1998 "breach letter" to the complainant, asserting legal rights and demanding legal relief.
12. It is also found that the meetings were the very first and second meetings of an entirely new membership of the respondent board. All of the previous members of the respondent board had resigned recently at the request of the Mayor of the respondent borough, and a central purpose of the meetings was to inform the new members of the respondent board concerning the status of and strategy for the pending claims and pending litigation. Moreover, there were affirmative unanimous votes of the members present and voting at the meetings to hold the executive sessions.
13. It is further found that the discussions of the budget that took place at the executive sessions of the meetings were integrally related to strategy with respect to the pending claims and pending litigation. For example, a $325,000 budget reduction was discussed as a self-help measure of recoupment for funds allegedly overcharged to the respondents by the complainant.
14. It is found that the respondent board discussed the election of its own officers in executive session at the June 18, 1998 meeting, but that the votes to elect a chairman and secretary were held in open session at the June 18, 1998 meeting.
15. It is also found that, at the executive session of the June 24, 1998 meeting, the respondent board also discussed whether the complainant was legally obligated to disclose the salaries of its individual employees. This discussion of the disclosure of salaries paid by the complainant was a sub-issue within the discussion of the budget, and therefore as found at paragraph 13, above, was related to strategy with respect to the pending claims and pending litigation.
16. Based on the findings at paragraphs 8 and 9, above, it is concluded that the §1-21(a), G.S., requirement that a special meeting notice specify "the business to be transacted" does not require the listing of a forthcoming executive session when such an executive session will be held at a special meeting. The §1-21(a), G.S., special meeting requirement (which is a notice, not the agenda referred to by the complainants counsel) does not require notice that the procedure for transacting business will include an executive session. Instead, the §1-21(a), G.S., term "business to be transacted" refers to the substantive subject matter to be addressed, such as, in this case, consideration of the budget.
17. It is concluded that the discussion of the election of a chairman and secretary of the respondent board, as found at paragraph 14, above, constituted discussion of the appointment of public officers, which is an authorized purpose for an executive session pursuant to §1-18a(6), G.S.
18. Based upon the findings at paragraphs 10, above, it is concluded that the stated reasons for the executive sessions of "pending legal matters" and "ongoing legal matters" referred to the pending claims and pending litigation purpose for an "executive session" authorized by §1-18a(6), G.S. Taken together with the additional stated reason for the executive session at the June 18, 1998 meeting of discussion of the election of a chairman and secretary, it is concluded that the respondent board did adequately set forth the reasons for the executive sessions at the meetings as defined by §1-21(a), G.S.
19. Based upon the findings at paragraphs 11 through 15, above, it is concluded that the purposes stated by the respondents for the executive sessions at the meetings were authorized by §1-18a(6), G.S., in that the stated purposes pertained either to strategy with respect to pending litigation or pending claims, or to the appointment of public officers.
20. It is concluded that §1-21g(b), G.S., refers to the attorney client privilege, which has not been claimed as an exemption supporting an executive session in this case. Moreover, by the express terms of its own last phrase, §1-21g(b), G.S., is not applicable when an executive session is for a purpose permitted pursuant to subdivision (6) of section 1-18a. Because it was not claimed by respondents as an exemption supporting an executive session, and also given the conclusion at paragraph 19, above, §1-21g(b), G.S., is not applicable to this case.
21. It is concluded that the complainant failed to prove that there were discussions held at the executive sessions of the meetings that were not authorized by §1- 18a(6), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 9, 1998.
_________________________ Melanie R. Balfour 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:
Naugatuck Treatment Company c/o Atty. Charles R. Andres Tyler Cooper & Alcorn, LLP 205 Church Street PO Box 1936 New Haven, CT 06509-1910
Water Pollution Control Board, Borough of Naugatuck; and Borough of Naugatuck, c/o Atty.Carlos A. Santos Fitzpatrick & Mariano, PC 203 Church Street Naugatuck, CT 06770
__________________________ Melanie R. Balfour Acting Clerk of the Commission