OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|against||Docket #FIC 2004-433|
Board of Commissioners,
City of Bridgeport,
|Respondent||June 22, 2005|
The above-captioned matter was heard as a contested case on January 31, 2005, 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 September 14, 2004, and filed with the Commission on September 22, 2004, the complainant alleged that the respondent violated the Freedom of Information (“FOI”) Act with respect to a September 7, 2004 meeting by conducting an executive session on September 7, 2004 for “personnel issues,” and by
entering such session, which related to her employment, after her counsel appeared at such meeting and objected to such session on her behalf. At the hearing in this matter and on brief the complainant requested that action taken at the September 7, 2004 meeting of the respondent be declared null and void.
3. Section 1-225, G.S., provides, in relevant part:
“(a) [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….”
“(d) [n]otice 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…[city]clerk…. 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….”
4. Section 1-200(6), G.S., defines “executive session” to include:
…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;….
5. It is found that the respondent held a special meeting on September 7, 2004, and that the notice of such meeting indicated that the business to be transacted was a “personnel matter.”
6. Previously, the Commission has frequently concluded that the notice of a special meeting must fairly apprise the public of the business to be transacted during such meeting. It is found that the term “personnel matter”, as described in paragraph 5, above, did not specify the business to be transacted during the September 7, 2004, special meeting of the respondent, within the meaning of §1-225(d), G.S.
7. Accordingly, it is concluded that the respondent violated §1-225(d), G.S., as alleged in the complaint.
8. It is found that, by letter dated September 3, 2004, the respondent notified the complainant that her employment, including the possibility of disciplinary action and termination, would be discussed at the September 7, 2004 meeting of the respondent in executive session. It is also found that, by such letter, the respondent invited the complainant to attend the September 7, 2004, meeting, affording her an opportunity to provide an explanation or additional information regarding the issue to be addressed in executive session.
9. It is found that, at the respondent’s September 7, 2004, special meeting, the chairperson of the respondent stated that such meeting was called to discuss a personnel matter with the complainant, and inquired if the complainant was present. It is found that the complainant was not present in person at the September 7, 2004, meeting. However, it is also found that, at such time, Attorney Thomas J. Weihing represented the complainant, and that Attorney Weihing was present at such meeting.
10. It is found that, upon the chairperson’s inquiry, as described in paragraph 9, above, Attorney Weihing informed the respondent that he represented the complainant and that he objected to the executive session because the complainant had not made the election to have the executive session.
11. It is found that the chairperson of the respondent informed Attorney Weihing, that upon advice of counsel, the complainant alone had the opportunity to require an open session and noted that the complainant was not in attendance. It is found that the members of the respondent board thereupon voted to enter executive session.
12. It is found that, after the respondent concluded the executive session described in paragraph 11, above, the members of the respondent voted to respond to a request from the complainant for early retirement after such request had been evaluated. It is further found that the members of the respondent thereupon voted to terminate the employment of the complainant, and the meeting then adjourned.
13. The respondent contends that, §1-200(6)(A), G.S., provides that only an “individual” whose employment is at issue in a proposed executive session possesses the right to require that such session be held in the open, and that the Commission must strictly construe the language of such provision.
14. However, it is found that the complainant’s physical presence was not necessary to exercise her right to require that the respondent hold a discussion of her employment in an open session. Based upon the facts and circumstances of this case, it is further found that Attorney Weihing’s objection, as described in paragraph 10, above, was sufficient so as to put the respondent on notice that the complainant wished her employment to be discussed in an open session. It is further found that the respondent failed to comply with the complainant’s right to require that her employment be discussed in open session, within the meaning of §1-200(6)(A), G.S.
15. It is concluded that the respondent violated §§1-225(a) and 1-200(6)(A), G.S., as alleged in the compliant, when it conducted its discussion of the complainant’s employment in executive session.
The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1. The Commission declares null and void the respondent’s actions as described in paragraph 12 of the findings, above, which actions were taken at the September 7, 2004, special meeting of the respondent.
2. Henceforth, the respondent shall strictly comply with the provisions of §§1-225(a) and 1-200(6)(A), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 22, 2005.
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:
Board of Commissioners,
City of Bridgeport
c/o William F. Clark, Esq.
75 Broad Street
Milford, CT 06460
Petrea A. Jones
Acting Clerk of the Commission