FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Alan Plofsky,  
  Complainant  
  against   Docket #FIC 2004-460
State of Connecticut, State Ethics Commission,  
  Respondent June 22, 2005
       

 

            The above-captioned matter was heard as a contested case on March 3 and April 29, 2005, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            At the hearing on this matter, the respondent proffered certain documents, which were marked as respondent’s exhibits 7 through 12 for identification only.  Those documents are hereby made full exhibits over the complainant’s objection.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  It is found that the respondent is a public agency within the meaning of 1-200(1), G.S.

 

            2.  It is found that on or about August 18, 2004, three employees of the respondent, through their attorney, submitted affidavits to the respondent’s then chairperson, Rosemary Giuliano, which affidavits contained allegations of misconduct against the complainant.  The three employees requested “whistleblower” status and that their identities remain confidential pursuant to 4-61dd, G.S.

 

            3.  It is also found that the affidavits described in paragraph 2, above, are purportedly the same affidavits that were provided to the State Auditors of Public Accounts pursuant to 4-61dd, G.S.

 

            4.  It is also found that former chairperson Giuliano, on behalf of the respondent,  engaged Attorney Linda Yelmini, then the Director of Labor Relations, Office of Policy and Management, as counsel; and, on or about August 20, 2004, on the advice of Attorney Yelmini, the respondent referred the affidavits to then Deputy Commissioner of the Department of Administrative Services, Alan Mazzola, to investigate the allegations of misconduct against the complainant.

 

            5.  It is also found that after having been informed that Deputy Commissioner Mazzola had concluded his investigation, the respondent requested that he present an oral report and his recommendations to the respondent at a meeting on September 8, 2004.

 

            6.  It is also found that on September 7, 2004, the respondent gave notice of a September 8, 2004 special meeting, which notice stated that the meeting was to convene at 12:00 p.m. and the purpose of the meeting was “the consideration and possible action in open and executive session of investigation of confidential complaints pursuant to Connecticut General Statutes 4-61dd.”

 

7.      It is also found that the agenda for the respondent’s September 8, 2004 meeting listed the sole item of business as “consideration and possible action in open and executive session of investigation of confidential complaints pursuant to Connecticut General Statutes 4-61dd.”

 

8.      It is found that the respondent held a special meeting on September 8, 2004, at which the respondent voted unanimously to convene in executive session, pursuant to 4-61dd and 1-200(6)(E), G.S., at 12:34 p.m., for purposes of discussing a whistleblower complaint with Attorney Yelmini and Deputy Commissioner Mazzola.

 

            9.  It is also found that the respondent reconvened in open session at 6:25 p.m. on September 8, 2004, at which time the respondent voted unanimously to authorize Chairperson Giuliano, in consultation with Attorney Yelmini, to draft a pre-disciplinary notice to the complainant advising him of his right to respond to the following four charges:

            a.  Telling a staff member to lie if asked questions in response to a federal subpoena;

 

            b.  Instructing a staff member to destroy a tape recording of a meeting of the respondent;

 

            c.  Failing to inform the respondent that the complainant had directed a staff member to disclose a letter from the Attorney General to the Hartford Courant; and

 

            d.  Accruing compensatory time in violation of state policies governing managerial employees.

 

It is also found that the respondent voted unanimously in open session to advise the complainant that the pre-disciplinary hearing would be held on Friday, September 10, 2004 at 9:30 a.m., and that he would have the right to counsel at that hearing.

 

            10.  By letter dated October 6, 2004 and filed on October 7, 2004, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by conducting a portion of the September 8, 2004 meeting in closed session, in violation of 1-200(6)(A), G.S.

 

            11.  During the hearing on this matter, the complainant argued that contrary to the notice and agenda of the September 8, 2004 special meeting, the respondent convened in executive session to, and did in fact, discuss the employment, performance and dismissal of the complainant, without providing him with notice and a meaningful opportunity to have the discussion at an open meeting pursuant to 1-200(6)(A), G.S.

 

            12.  The respondent, on the other hand, argued that it properly convened in executive session under 1-200(6)(E), G.S., to discuss certain allegations of misconduct under 4-61dd, G.S., and that pursuant to the specific request from the persons who brought forward such allegations that they be protected as whistleblowers, the respondent was precluded from disclosing anything that would reveal their identities.  The respondent also contended that it permissibly consulted with its attorney during the executive session in question pursuant to 1-200(6)(E), G.S.

 

            13.  Section 1-225(a), G.S., provides in pertinent 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.”

 

            14.  Section 1-225(f), G.S., states that “[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.”

 

            15.  Section 1-200(6), G.S., in turn, defines an “executive session,” in relevant part as  “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; . . . 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.”

 

16. Section 1-210(b), G.S., permits an agency to withhold from disclosure, among other things, “(10) . . . communications privileged by the attorney-client relationship;” and “(13)  Records of an investigation or the name of an employee providing information under the provisions of section 4-61dd.”

 

            17.  Section 1-231(b), G.S., however, provides that “[a]n 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 1-200.”

 

            18.  It is found that, at a minimum, the respondent discussed the complainant’s “employment” and “performance,” within the meaning of those terms in 1-200(6)(A), G.S., during its September 8, 2004 meeting.  Because the respondent explicitly convened in executive session pursuant to 1-200(6)(E) and 4-61dd, G.S., and not 1-200(6)(A), G.S., the respondent did not permit the complainant to exercise his right under the latter provision to require that the meeting be held in public session.  It is further found that the complainant’s knowledge of the meeting and executive session in question did not constitute either a waiver of that right or an implied consent to the executive session.

 

            19.  It is also found that during the executive session in question, members of the respondent sought and received advice from Attorney Yelmini that would otherwise be privileged by the attorney-client relationship if the respondent were a nongovernmental entity.  However, it is also found that there was no record of attorney-client privileged communication which is required as a prerequisite for convening in executive session pursuant to 1-231(b) and1-200(6)(E), G.S.

 

            20.  Consequently, it is concluded that the respondent failed to convene properly in executive session at its September 8, 2004 meeting pursuant to either 1-200(6)(A) or 1-200(6)(E), 1-210(b)(10) and 1-231(b), G.S.

 

            21.  It therefore remains to consider, as the respondent contends, that it properly convened in executive session at its September 8, 2004 meeting pursuant to 1-200(6)(E) and 4-61dd, G.S.

 

            22.  Section 4-61dd(a), G.S., provides:

 

Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency or any quasi-public agency, as defined in section 1-120, or any person having knowledge of any matter involving corruption, violation of state or federal laws or regulations, gross waste of funds, abuse of authority or danger to the public safety occurring in any large state contract, may transmit all facts and information in his possession concerning such matter to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report their findings and any recommendations to the Attorney General. Upon receiving such a report, the Attorney General shall make such investigation as he deems proper. At the request of the Attorney General or on their own initiative, the auditors shall assist in the investigation. The Attorney General shall have power to summon witnesses, require the production of any necessary books, papers or other documents and administer oaths to witnesses, where necessary, for the purpose of investigation. Upon the conclusion of his investigation, the Attorney General shall where necessary, report his findings to the Governor, or in matters involving criminal activity, to the Chief State's Attorney. The Auditors of Public Accounts and the Attorney General shall not, after receipt of any information from a person under the provisions of this section, disclose the identity of such person without his consent unless the Auditors of Public Accounts or the Attorney General determines that such disclosure is unavoidable during the course of the investigation.

 

            23.  Section 4-61dd(a), G.S., by its very terms, provides for the transmission of information by a “person” who has knowledge of misconduct by a state government official to the Auditors of Public Accounts.  It then authorizes the auditors and/or the Attorney General to conduct an investigation.  The statute does not authorize the investigation of such alleged misconduct by the agency that employs the official concerned.  Nor does it explicitly embue the employing agency with the powers, responsibilities or duties conferred on the auditors or Attorney General with respect to “whistleblower” complaints.

 

            24.  The provisions of 4-61dd(a), G.S., however, do not preclude an agency from pursuing disciplinary action, under established personnel rules and procedures, against any of its employees, if the agency concludes that any such employee has engaged in proscribed conduct.  But the process that may lead to such disciplinary action does not fall within the purview of 4-61dd(a), G.S.  And the essential requirements of due process in such proceedings where tenured public employees are concerned include:  oral or written notice of the charges; an explanation of the employer’s evidence; and an opportunity to respond and present the employee’s side of the story.  Cleveland Board of Education v. Loudermill, 470  U.S. 532, 546 (1985).

 

            25.  Consequently, it is concluded that even if 4-61dd(a), G.S., authorizes an agency other than the Auditors of Public Accounts and the Attorney General to keep confidential the identities of the persons filing complaints under that statute, the independent investigation, report and conclusions of such an investigation, excluding the identities of those who filed the 4-61dd complaint, are not governed by that statute’s confidentiality provisions.  To conclude otherwise would be to vitiate the due process required in disciplinary proceedings, as decribed in paragraph 24, above.

 

            26.  It is found that in the present case, Commissioner Mazzola conducted an independent investigation of misconduct on the part of the complainant.  He orally reported to the respondent in executive session on that investigation and the conclusions he reached.  As a result of that oral report, the respondent voted in open session to hold a pre-disciplinary (Loudermill) hearing on the four charges described in paragraph 9, above.

 

            27.  It is also found that there is no evidence that a public airing of Commissioner Mazzola’s oral report would necessarily require the disclosure of the identities of the persons who filed the complaints under 4-61dd, G.S.  All that the pertinent evidence reveals is (a) Commissioner Mazzola interviewed witnesses, including members of the respondent’s staff other than the “whistleblowers,” and reviewed documents; and (b) as a result of his independent investigation, disciplinary action was initiated by the respondent against the complainant for the reasons described in paragraph 9, above.

 

            28.  It is therefore concluded that the oral report by Commissioner Mazzola to the respondent in executive session, exclusive of any references to the identities of those persons who brought complaints to the Auditors of Public Accounts pursuant to 4-61dd, G.S., did not constitute a discussion of those complaints, but rather constituted a discussion of the complainant’s employment and performance, within the meaning of 1-200(6)(A), G.S.

 

            29.  Consequently, it is concluded that the respondent violated 1-225 and 1-200(6)(A), G.S., by failing to invoke the provisions of 1-200(6)(A), G.S., as the purpose for convening in executive session; and by failing to do so, the respondent violated the complainant’s right under the latter section to require that such discussion be held 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 respondent shall convene in executive session only for the purposes permitted by law.

 

 

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:

 

Alan Plofsky

c/o Gregg D. Adler, Esq.

557 Prospect Avenue

Hartford, CT 06105

 

State of Connecticut,

State Ethics Commission

c/o Clare E. Kindall, Esq.

Assistant Attorney General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-460FD/paj/6/23/2005