FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Bruce A. Miller,  
  Complainant  
  against   Docket #FIC 2004-260
Board of Fire Commissioners, Town of Waterford  
  Respondent October 27, 2004
       

      

The above-captioned matter was heard as a contested case on August 31, 2004, at which time the complainant and the 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 1-200(1), G.S.

 

2.  By letter of complaint dated June 8, 2004, and filed June 14, 2004, the complainant appealed alleging that the respondent violated the Freedom of Information Act by convening in executive session on September 24 and November 19, 2003, and May 26, 2004, and discussing the complainant’s performance, without providing the complainant with meaningful notice and an opportunity to have the discussions concerning him at an open meeting.  The complainant further stated in his complaint letter that the respondent’s agendas did not reflect that the respondent intended to have the executive session discussions concerning the complainant and further that because the matters concerning him were discussed during executive session such matters were not recorded in the respondent’s meeting minutes.

 

3.  It is found that the respondent held meetings on September 24 and November 19, 2003, and May 26, 2004.

 

4.  Section 1-206(b)(1), G.S., provides, in relevant part:

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.

 

5.  With respect to the allegations described in paragraph 2, above, pertaining to the respondent’s meetings and executive sessions held on September 24 and November 19, 2003, it is found that the complaint (notice of appeal) in this matter was filed beyond the thirty-day period required by 1-206(b)(1), G.S.

 

6.   It is therefore concluded that the Commission lacks jurisdiction to address the allegations raised in the complaint pertaining to the respondent’s meetings and executive sessions held on September 24 and November 19, 2003.

 

7.  With respect to the allegations described in paragraph 2, above, pertaining to the respondent’s meeting and executive session held on May 26, 2004, it is found that the complainant is an employee of the town of Waterford.

 

8.  It is found that the respondent held a regular meeting on May 26, 2004, during which it convened in executive session and discussed personnel related matters concerning the complainant.  Specifically, the respondent discussed removing the complainant from his duties at the communication center and issuing the complainant with a written warning.

 

9.  It is found that after the executive session the respondent gave the

 complainant a written warning.

 

10.  It is found that the only notice the respondent provided to the complainant of the executive session was moments before such session when the complainant, who was in his office at the time, was summoned by the respondent to attend the executive session. 

 

11.  Section 1-200(6), G.S., provides, in relevant part:

 

“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. 

 

            12.  It is found that the notice provided to the complainant of the executive session, described in paragraph 10, above, was neither adequate nor meaningful so that the complainant could, if he chose to, exercise his right to have the discussions concerning him take place during an open meeting.

 

            13.  At the hearing in this matter, the chairman of the respondent conceded that the respondent erred when it failed to provide the complainant with adequate and meaningful notice that the complainant would be discussed.  The respondent’s chairman also indicated at the hearing in this matter that all actions taken by the respondent with respect to the discussions held in executive session on May 26, 2004, concerning the complainant, were rescinded by the respondent and made null and void at the respondent’s meeting held on June 9, 2004.  The respondent’s chairman also acknowledged that the respondent did not in the past indicate on its meeting agendas that it intends to have executive session discussions, however, he now understands that if the respondent is aware that it intends to have such discussions ahead of time, then the respondent should include such executive session discussions as items on the respondent’s meeting agendas.    

 

14.  It is concluded that the respondent violated 1-200(6)(A), G.S., when it convened in executive session without first providing the complainant with adequate and meaningful notice of such session and an opportunity to have the discussions concerning him conducted at an open meeting.

 

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 requirements of 1-200(6)(A), G.S.                                                    

 

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


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:

 

Bruce A. Miller

25 Dimmock Road

Waterford, CT 06385

 

Board of Fire Commissioners,

Town of Waterford

c/o Nicholas F. Kepple, Esq.

Box 3A Anguilla Park

20 South Anguilla Road

Pawcatuck, CT 06379

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-260FD/paj/11/1/2004