FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Wesley S. Lubee, Jr.,  
  Complainant  
  against   Docket #FIC 2006-398

Board of Education, Wallingford

Public Schools,

 
  Respondent February 28, 2007
       

 

The above-captioned matter was heard as a contested case on October 30, 2006, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with docket #FIC 2006-368, Michelle Russo v. Board of Education, Wallingford Public Schools and docket #FIC 2006-369, Michelle Russo v. Board of Education, Wallingford Public Schools.

 

 

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 July 28, 2006, and filed on August 8, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.  reaching a consensus not to renew an employment contract with Kenneth V. Henrici, Superintendent, Wallingford Public Schools (hereinafter “the superintendent”) during an executive session, and failing to record the consensus taken in such executive session.

 

b.  failing to provide him with a copy of its by-laws (hereinafter, “requested record”)

 

3.  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….”

4.  It is found that the complainant received notice in fact of the alleged meetings on July 17, 2006, during a special meeting of the respondent.  It is further found that this complaint was filed within thirty days after the July 17, 2006, meeting.  Accordingly, it is concluded that the Commission has jurisdiction to hear this appeal.

5.  Section 1-225(a), G.S., provides, in relevant part:

 

The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.

 

6.  Section 1-200(6), G.S., defines “executive session” to mean:

 

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…[Emphasis added].

 

7.  Section 1-225(f), G.S., further provides:

 

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. 

 

8.  It is found that the respondent’s agenda for a January 19, 2006, special meeting indicated the following in relevant part:

 

“EXECUTIVE SESSION

E.1  Board Update on Inquiry Regarding the Superintendent of Schools and the School Business Manager”

 

9.  It is found that the respondent conducted a special meeting on January 19, 2006, and voted to enter executive session.  It is also found that during the January 19th executive session, the respondent discussed its dissatisfaction with the superintendent’s performance.  More specifically, thoughts and ideas were exchanged relating to whether or not to renew the superintendent’s contract.  The purpose of the meeting was to get new members of the respondent familiar with the issue.  Thomas Hennessey, chairman of the respondent board, tabled the matter since some board members were absent.

 

10.  It is found that a consensus was not reached by the respondent board during the January 19, 2006, special meeting.  Therefore, it is concluded that the respondent did not violate the FOI Act regarding such meeting, as alleged in the complaint.

 

11.  It is found that the respondent conducted a special meeting on February 6, 2006 and voted to enter executive session. 

 

12.  It is further found that the respondent’s agenda for the February 6, 2006, special meeting indicated the following, in relevant part:

 

“EXECUTIVE SESSION

E.1  Board Update on Inquiry Regarding the Superintendent of Schools and the School Business Manager.”

 

13.  It is found that during the February 6, 2006 executive session, the respondent further discussed the performance of the school district and the leadership style of the superintendent.  It is found that during such session, a consensus was reached that a leadership group of the board would meet with the superintendent to discuss these issues.

 

14.  It is found that a board leadership group met with the superintendent in his office on or about February 21, 2006, wherein the superintendent’s leadership style and the board’s dissatisfaction with him were discussed.  It is found that such meeting was a “meeting” of the respondent board, within the meaning of 1-225(a), G.S., to which the public was not invited.

 

15.  It is found that following the February 21, 2006 meeting, it was understood that the superintendent would resign from his office, effective at the end of his contract and that the respondent would provide the superintendent with a letter of reference designed to maintain his marketability.  It is further found that this was a meeting of the respondent board wherein a consensus was reached, as described in paragraph 14, above.

 

.

 

16.  It is found that the respondent board discussed the matters described in paragraphs 13 and 14, above, and came to a consensus during the February 6, 2006 executive session and during the February 21, 2006 meeting described therein.

 

17.  It is found that each consensus described in paragraphs 13 and 14, above, was tantamount to a vote.   It is further found that the minutes of the February 6, 2006, meeting did not describe such consensus, and do not indicate that any vote was taken.  It is also found that no minutes of the February 21, 2006 meeting exist. 

 

18.  It is concluded that the respondent violated 1-225(a) and 1-200(6), G.S., as alleged in paragraph 2.a, above.

 

19.  Section 1-200(5), G.S., provides in relevant part:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

                                                                 

20.  Section 1-210(a), G.S., provides in relevant part:

 

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to…receive a copy of such records in accordance with section 1-212….

 

21.  Section 1-212(a), G.S., provides in relevant part: “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record...”

 

22.  By letter dated June 22, 2006, the complainant requested that the respondent send him a copy of its by-laws.

 

23.  During the hearing in this matter, the Chairman maintained that he did not receive the letter described in paragraph 22, above, until the end of July.

 

24.  It is found that the requested records, to the extent that such records exist, are public records within the meaning of 1-210(a) and 1-200(5), G.S.

 

25.  It is found that, upon receiving the letter described in paragraph 22, above, the chairman called the complainant and explained that the respondent does not have by-laws, but rather has board policies.  He confirmed what records the complainant was seeking and asked the complainant if he had access to a computer, and then suggested to the complainant that he obtain the policies on-line.  The chairman further suggested to the complainant that if he had trouble getting the records on line, he would have his secretary send them to him.

 

26.  It is found that the respondent maintains the requested records and that such records are public records, within the meaning of 1-210(a), and 1-212(a), G.S.

 

27.  Based on the foregoing, it is found, therefore, that the respondent failed to promptly comply with the complainant’s request described in paragraph 22, above, and thereby violated 1-210(a) and 1-212(a), G.S.

 

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 open meetings provisions set forth in 1-225(a), G.S.

 

2.  The respondent shall forthwith cause the minutes of its February 6, 2006 special meeting to be amended to accurately reflect how its members voted on the issues described in paragraph 13.

 

3.  The respondent shall forthwith create accurate minutes of its February 21, 2006 special meeting, which minutes should reflect how its members voted on the issues described in paragraph 14, above.

 

            4.  The respondent shall forthwith provide the complainant with a copy of the requested record described in paragraph 22 of the findings, above, free of charge.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 28, 2007.

 

________________________________

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:

 

Wesley S. Lubee, Jr.

15 Montowese Trail

Wallingford, CT 06492

 

Board of Education, Wallingford

Public Schools

c/o Peter A. Janus, Esq.

150 Trumbull Street

Hartford, CT 06103

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-398FD/paj/3/2/2007