FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Richard K. Barry,|
|against||Docket #FIC 1998-342|
|Superintendent, Board of Education,
New Britain Public Schools; and
Board of Education, New Britain
|Respondents||March 24, 1999|
The above-captioned matter was heard as a contested case on January 7, 1998, 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(1), G.S.
2. By letter dated September 8, 1998, the respondent superintendent advised the complainant that he intended to discuss the complainants, as well as the other four non-union administrative personnels, contract and salary in executive session during the respondent board of educations meeting of October 5, 1998.
3. By letter dated September 16, 1998, the complainant advised the respondent superintendent that he wished any discussion regarding his employment to be discussed in open session.
4. It is found that at a time after September 16, 1998, but before October 5, 1998, the complainant and the four other non-union administrators met with the respondent superintendent and that during that meeting, there was a consensus among the group that it would be more appropriate to have the discussion concerning their contracts and salaries with the respondent board at its October 5, 1998, meeting in executive session provided that each would be allowed to attend such executive session.
5. It is found that on October 5, 1998, the respondent board entered into executive session on two separate occasions during its meeting.
6. It is found that the complainant was
invited and attended the first executive session and that he was not invited nor did he
attend the second executive session.
7. By letter dated October 29, 1998, and filed on November 3, 1998, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by failing to state the purpose for which it entered into the second executive session and for discussing his contract and salary in that executive session.
8. Section 1-18a(6), G.S., provides in relevant part that:
[e]xecutive session 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 in an open meeting . . .
9. Section 1-21g(a), G.S., provides in relevant part that:
[a]t an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion . . .
10. Section 1-21(a), G.S., provides in relevant part that:
. . . 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.
11. It is found that the respondent board entered into the second executive session without stating the reason for such executive session.
12. It is concluded that the respondents violated § 1-21(a), G.S., by failing to state the reason prior to entering into the second executive session at it October 5, 1998, meeting.
13. It is found that the second executive session lasted approximately fifteen minutes and that during that period the respondents discussed the renewal of non-union administrator contracts and reconsideration of votes taken at a previous meeting and that most of the time was spent discussing the latter.
14. At the hearing in this matter, the respondents argued that at the meeting described in paragraph 4, above, the complainant agreed to have the discussion regarding his salary and contract in executive session so long as he was present at such executive session and that such agreement, and his attendance at the executive session, was a waiver of his right to require that the discussion be held in an open meeting. The respondents further argued that once the complainant waived his right, his attendance in the executive session was limited to the period necessary to present his opinion regarding his contract and salary and that since his testimony was not required at the second executive session, he could not attend.
15. At the hearing on this matter, the complainant argued that he did not agree to the decision described in paragraph 4, above, and that his attendance at the executive session was not a waiver of his right to require that the discussion be held in an open session and that his letter of September 16, 1998, was still effective and that the second executive session should have been held in open session.
16. Notwithstanding the arguments described in paragraphs 14 and 15, above, it is found that the respondent board did not discuss the contract or salary of the complainant in that there was no substantive discussion regarding the contracts and salaries of the non-union administrators and there was no specific discussion of the complainants contract or salary.
17. It is therefore concluded that the respondents did not violate § 1-21a, G.S., by not having the discussion regarding the non-union administrators salary and contracts in open session.
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 executive session provisions of § 1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 24, 1999.
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:
Richard K. Barry
11 Park Street
Superintendent, Board of
Education, New Britain
Public Schools; and
Board of Education,
New Britain Public Schools
c/o Atty. Floyd J. Dugas
Berchem, Moses & Devlin, PC
75 Broad Street
Milford, CT 06460
Melanie R. Balfour
Acting Clerk of the Commission