In the Matter of a Complaint by FINAL DECISION

Sarah Walker

and the New Haven Register,

  against   Docket #FIC 2003-425

Board of Education,

Derby Public Schools,

  Respondent  October 27, 2004


             The above-captioned matter was heard as a contested case on June 24, 2004, 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 1-200(1), G.S.


2.  By letter dated and filed on December 3, 2003, the complainants appealed to the Commission alleging that during a special meeting of the respondent that was held on December 2, 2003, the respondent violated the Freedom of Information (“FOI”) Act by:


(a)  unlawfully holding an executive session; and


(b)  inviting a number of non-agency members to attend and participate in the executive session beyond the time necessary to present testimony or opinion.


3.  It is found that the respondent held a special meeting on December 2, 2003 during which it convened in executive session with the announced purpose of discussing a personnel matter.


4.  It is found that the agenda for the meeting listed:


Opening Ceremonies

Roll Call

Executive Session Anticipated

Personnel matter:

Discussion of employee performance



            5.  It is found that in addition to the respondent’s members, the following eight individuals were invited, and attended the entire executive session in question:


Charles DiCenso, Principal, Derby High School;

Dr. Martin Gotowala, Superintendent of Schools, Derby;

Richard O’Connor, Attorney;

William Duggan, former Acting Superintendent of Schools;

Theodore Estwan, Chairman of the Police Commission;

Andrew Cota, Chief of Police, Derby Police Department;

Peter Fearon, of the State’s Attorney’s Office; and

The parent of the victim.


6.  It is found that the respondent stated prior to the executive session that the purpose of the executive session was for the attendees to engage in “roundtable” discussion regarding the chronology of events relating to certain sexual assaults allegedly committed by a student that occurred at Derby High School and the responsive actions by school personnel.  It is further found that no student was identified in the executive session.


7.  It is found that minutes of the meeting were prepared and made available to the public.


8.  Subsequent to the meeting in question, the respondent issued two reports:  a “Report on Derby High School Sexual Assault Incidents,” dated December 8, 2003, and a “Final Statement Sexual Assault Incident,” dated January 22, 2004.


9.  With respect to the allegations contained in paragraph 2(a), above, the complainants contend that the purpose of the December 2, 2003 executive session was to discuss (a) the findings of an investigation into student misconduct at Derby High School, including certain timeframes, and (b) alleged intimidation of some high school students.


            10.  The respondent, on the other hand, contends that the executive session discussion of the chronology of the events were so inextricably intertwined with a personnel matter that the executive session was permissible for the discussion of both subjects described in paragraph 9, above.


11.  Section 1-225(a), G.S., provides in relevant part that “[t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”


12.  Section 1-225(f), G.S., in turn, provides in relevant part: 


[a] public agency may hold an executive session as defined in subdivision (6) of section 1-200, 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 section 1-200.


13.  Section 1-231(a), G.S., also provides:


[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 and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.


14.  Section 1-200(6), G.S., provides 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 the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.


15.  It is found that the discussion at the executive session in question was not a discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, within the meaning of 1-200(6), G.S., but rather was a discussion concerning a sexual assault and the general topic of student safety.


16.  Consequently, it is concluded that the discussion that occurred during the executive session in question was in violation of 1-225(a), G.S., because such discussion does not constitute a permissible purpose for an executive session, within the meaning of 1-200(6), G.S.


17.  With respect to the allegation contained in paragraph 2(b), above, it is found that the respondent permitted non-agency members to be in attendance at the executive session in question for the entire session and beyond the time necessary for each to present testimony or opinion.


18.  Consequently, it is concluded that the respondent violated the provisions of 1-231(a), G.S., by permitting such non-agency members to be present and remain in attendance during the entire executive session.


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



1.  Henceforth, the respondent shall strictly comply with the provisions of 1-200(6)(a), 1-225(a) and 1-231(a), G.S., with respect to the convening and conduct of its executive sessions.


Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 2004.



Petrea A. Jones

Acting Clerk of the Commission





            Sarah Walker

            and the new Haven Register

            94 Main Street

            Ansonia, CT 06401


            Board of Education,

            Derby Public Schools

            c/o Susan Gundersen, Esq.

            Sullivan, Schoen, Campane & Connon, LLC

            646 Prospect Avenue

            Hartford, CT 06105-4286



Petrea A. Jones

Acting Clerk of the Commission