FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Edward C. Favolise,  
  Complainant  
  against   Docket #FIC 2008-491

Board of Directors,

Highville Charter School, Inc.,

 
  Respondent June 10, 2009
       

 

The above-captioned matter was scheduled to be heard as a contested case on October 27, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At such time, the hearing officer determined that, for purposes of hearing, the instant matter should be consolidated for hearing with Docket #FIC 2008-588; Edward C. Favolise v. Director, Highville Charter School; and Board of Directors, Highville Charter School.  Absent objection from the parties, the hearing in Docket #FIC 2008-491 was adjourned, and continued to January 21, 2009.  On January 21, 2009, the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument.  For purposes of hearing, the instant matter was consolidated with Docket #FIC 2008-588; Edward C. Favolise v. Director, Highville Charter School; and Board of Directors, Highville Charter School

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 an undated letter filed on July 25, 2008, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOI Act”) in the following ways: 

a.       By holding unnoticed and/or secret meetings, concerning the complainant’s job performance and candidacy for the position of Director for the 2008-2009 academic year, without providing the complainant an opportunity to request that such meetings be held in open sessions;

b.      By discussing the complainant’s job performance in executive session without notice to the complainant and an opportunity for the complainant to request that such discussion be held in an open session;

c.       By holding unnoticed, electronic meetings;

d.      By failing to keep minutes of its meetings;

e.       By failing to provide notices of its meetings; and

f.       By failing to hold properly noticed open meetings and, during one such meeting, selecting a person other than the complainant for the position of Director for 2008-2009 academic year. 

 

3.      In his complaint, the complainant requested that the Commission declare null and void the respondent’s decision not to renew his contract and to hire a Director for the 2008-2009 academic year other than complainant.  The complainant also requested access to any documents presented or reviewed by the respondent during secret meetings, or executive sessions, as well as access to any tape recordings of sessions where candidates for the Associate Director position or the nonrenewal of the complainant’s contract were discussed.  The complainant also requested that the Commission order the disclosure of any electronic communications (including e-mails) during which the nonrenewal of the complainant’s contract or the hiring of an individual for the Director’s position for the 2008-2009 academic year were discussed. 

4.      Section 1-200(2), G.S., defines “meeting” in relevant part as follows:

 

. . . any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.  “Meeting” does not include: Any meeting of a personnel search committee for executive level employment candidates. . . .

5.      Section 1-200(6), G.S., defines “executive session,” in relevant part as follows:

. . . 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;

6.      Section 1-225(a), G.S., provides in relevant that:

 

The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken. Within seven days of the session to which such minutes refer, such minutes shall be available for public inspection. . . .

7.      Section 1-225(b), G.S., provides in relevant part:

 

. . . The chairperson or secretary of any such public agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. . . .

8.      Section 1-225(d), G.S., provides in relevant part that:

 

Notice 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  . . . clerk of such subdivision for any public agency of a political subdivision of the state . . . . The notice shall specify . . .  the business to be transacted. 

9.      Section 1-231(a), G.S., provides that:

 

[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.

 

10.  At the hearing, the complainant contended that the respondent held a June 14, 2008 special meeting at which his performance and his candidacy for the Director position for the 2008-2009 academic year was discussed.  The complainant contended that he did not receive notice that the respondent planned to discuss him at this meeting.  The complainant further contended that he was informed on June 26, 2008 by the respondent’s former chairman, Charles Croft, that he was discussed at the respondent’s June 14, 2008 meeting. 

 

11.  The complainant further contended the respondent held a June 18, 2008 regular meeting, at which the respondent entered into executive session for the purpose of discussing the complainant’s performance and his candidacy for the Director position for the 2008-2009 academic year.  The complainant contended he did not receive notice that the respondent planned to discuss him during an executive session, or an opportunity to request that the discussion occur during an open meeting. 

12.   The complainant also contended that, subsequent to the executive session described in paragraph 11, above, the respondent reconvened in open session and conducted a vote on three different “teams” of candidates to fill the positions of Director and Associate Director for the 2008-2009 academic year.  The complainant contended that after the meeting, the respondent conducted an illegal electronic communication to induce a board member to change her vote.  

13.  It is found that the complainant was hired by the respondent pursuant to an employment contract, whereby the complainant assumed the position of Director of the respondent school for the 2007-2008 academic year.  It is further found that the complainant’s position as Director began on July 1, 2007 and ended on June 30, 2008.

14.  It is found that, in April 2008, the respondent made a decision to search for new candidates for the positions of Director and Associate Director for the 2008-2009 academic year.  It is further found that, in connection with this decision, the respondent formed a personnel search committee. 

15.  It is found that Chairman Croft designated six of the nine members of the respondent board to be members of the personnel search committee.  It is further found that the three members of the respondent board who were unable to conduct interviews of prospective candidates were not designated by Chairman Croft to be members of the personnel search committee. 

16.  It is found that the personnel search committee described in paragraphs 14-15, above, functioned solely to seek out, interview and recommend candidates to the respondent for the positions of Director and Associate Director for the 2008-2009 academic year. 

17.  While the complainant contends that he was a candidate for the position of Director for the 2008-2009 academic year and further contends that he was interviewed for this position, the complainant testified that he could not “remember exactly” who interviewed him for this position.  The complainant also testified that he was “supposed to be evaluated formally . . . but this never took place.” 

 

18.  It is found that the complainant was not an individual in the pool of potential candidates being considered by the personnel search committee for the position of Director for the 2008-2009 academic year. 

 

19.  It is found that the respondent held a special meeting on June 14, 2008.  It is further found that the complainant prepared the notice and the agenda for this meeting. 

 

20.  The complainant testified that he did not list his performance on the agenda as an item of discussion for the meeting, and he was not aware that his performance had been discussed at such meeting until approximately twelve days later, (see 10, above).   

 

21.  The respondent’s current chairperson, Alexis Highsmith, testified that there were no discussions at the special meeting concerning the complainant’s performance or the potential for the complainant’s continuing employment as the Director.  Chairperson Highsmith further testified that its personnel search committee, referred to in paragraphs 14 through 16, above, did not meet or confer on any matter on the date of the special meeting.  Chairperson Highsmith testified that the respondent board did not discuss any personnel issues or any matter related to any of the prospective candidates for the Director or Associate Director position for the 2008-2009 academic year at this meeting. 

 

22.  It is found, based on Chairperson Highsmith’s testimony, that the respondent did not discuss the complainant’s performance or the potential for his continued employment at the June 14, 2008 special meeting.  It is therefore concluded that the complainant did not violate the FOI Act as alleged by the complainant in paragraph 2.b, above.

 

23.  It is further found that the respondent’s special meeting was properly noticed. 

 

24.  With regard to the allegations described in paragraph 2.d, it is found that, based on the testimony of Chairperson Highsmith, the minutes for the June 14, 2008 special meeting were not prepared and available for public inspection until January 15, 2009. 

 

25.  Accordingly, it is concluded that the respondent violated 1-225(b), G.S., by not having the minutes for its special meeting available for public inspection within seven days of such meeting. 

 

26.  It is found that the respondent held a regular meeting on June 18, 2008.  The complainant testified that he prepared the notice and the agenda for this meeting.  The complainant further testified that the notice for this meeting was included in the respondent’s schedule of regular meetings that was prepared and filed at the beginning of the calendar year. 

 

27.  Neither party produced the agenda for the June 18, 2008 meeting at the hearing for the Commission’s consideration.  The complainant testified at the hearing that the agenda for this meeting did not state that the respondent planned an executive session for this meeting.  Based on the testimony of the respondent, it is found that the respondent had planned in advance of the meeting to convene in executive session in order to receive a recommendation on prospective candidates from its personnel search committee.    

 

28.  It is found that, sometime during the course of the June 18, 2008 regular meeting, the respondent convened in executive session. 

 

29.  It is found that the respondent’s meeting minutes state that the purpose of the “executive session [was] to discuss the search for administration.”  The respondent testified, and it is found, that a clearer statement of the purpose of the executive session was for the respondent’s personnel search committee to report to the full board of directors its recommendation for the selection of Director and Associate Director for the 2008-2009 academic year.  It is further found that the respondent’s meeting minutes did not disclose all persons who were in attendance at the executive session.

 

30.  The respondent’s chairperson testified, and it is found, that there were no discussions during this executive session concerning the complainant’s current performance or his candidacy for the position of Director during the 2008-2009 academic year.

31.  Based on the complainant’s testimony, as described in paragraph 26, above, it is found that the respondent’s June 18, 2008 meeting was properly noticed.   

32.  Based on the findings in paragraphs 23 and 26, above, it is concluded that the respondent’s June 14, 2008 special meeting  and June 18, 2008 regular meeting were properly noticed pursuant to 1-225(b) and 1-225(d), G.S.   It is therefore concluded that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2.e, above. 

33.  Based on the findings in paragraph 29, above, it is concluded that the respondent violated 1-231(a), G.S., by not identifying in its meeting minutes the individuals who were in attendance during the executive session of the June 18, 2008 meeting. 

 

34.  Based on the findings in paragraphs 24 and 29, above, it is further concluded that the respondent violated the FOI Act by failing to properly prepare its meeting minutes, as alleged by the complainant in paragraph 2.d., above. 

 

35.  Because the complainant did not raise allegations in the complaint with regard to the sufficiency of the respondent’s July 14, 2008 special meeting agenda or July 18, 2008 regular meeting agenda, the Commission will not rule on matters pertaining to these records that were raised for the first time at the hearing.  However, the Commission notes for the respondent that the court has observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”  Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC, et al., Superior Court, Docket No. 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001). 

 

36.  It is further found that after the executive session, referred to in paragraph 28, above, the respondent reconvened to the open session of its regular meeting.  It is found that, at this time, the respondent raised for a vote the candidates for the positions of Director and Associate Director for the 2008-2009 academic year.  It is found that the respondent voted on three, two-member teams.  It is found, however, that the voting did not result in a majority vote for any one team of candidates.

 

37.  It is found that at no time during the open portions of this regular meeting did the respondent discuss the complainant’s current performance or his candidacy for the position of Director during the 2008-2009 academic year.

38.  It is found that sometime after this regular meeting, one of the respondent’s board members contacted another board member by e-mail for the purpose of encouraging the second board member to consider changing her vote, so that one of the two member teams could carry a majority of votes.  It is further found that the board member did change her vote and, thereafter, voted again by “e-mail proxy” for a different two member team of candidates. 

39.  It is found that the board member’s change in vote, referred to in paragraph 38, above, resulted in a majority of votes for one of the teams of candidates for the position of Director and Associate Director for the 2008-2009 academic year. 

 

40.  It is further found that, after the e-mail vote, described in paragraph 38, above “[t]he board was reached by phone . . . and polled to get a consensus [concerning whether it] should move forward based on this vote and the consensus was reached.” 

 

41.  It is found that electronic communications described in paragraphs 39 and 40, above, were summarized in an “addendum,” which was attached to the minutes of the June 18, 2008 regular meeting.  

 

42.  Thereafter, during an open session of a regular meeting held on July 16, 2008, it is found that the respondent board members voted again on the appointment of a Director and Associate Director.  It is further found that the respondent selected, by unanimous vote, the two member team referenced in paragraph 39, above, to fill the positions of Director and Associate Director for the 2008-2009 academic year. 

 

43.  With regard to the allegation in paragraph 2.a, above, that the respondent conducted “secret meetings,” it is found that there is insufficient evidence to show that the respondent attempted to conceal its meetings or conduct its meetings in secret.  To the contrary, based on the findings in paragraph 41, above, it is found that the respondent summarized all of its electronic communications into a written document, which was then incorporated into its July 18, 2008 meeting minutes. 

 

44.  With regard to the remaining allegations in paragraph 2.a, above, and the allegations in paragraph 2.b, above, it is found that, because it has been determined that the complainant was not an individual in the pool of candidates being considered for the position of Director, (see 18, above), the respondent did not violate the “notice requirement” of 1-200(6), G.S.

 

45.  With regard to the allegations in paragraph 2.c, above, it is found that the respondent board exercised “supervision, control, jurisdiction or advisory power,” within the meaning of 1-200(2), G.S., with respect to the selection of a Director and an Associate Director for the 2008-2009 academic year.

 

46.  It is further found that the communication, whereby one board member encouraged another board member to change her vote, as well as the recasting of the vote itself, as described in paragraph 38, above, constituted a “proceeding” of the respondent, within the meaning of 1-200(2), which should have occurred at a public meeting. 

 

47.  It is further found that the ensuing discussion and polling activity, as described in paragraph 40, above, constituted a “communication by or to a quorum of a multimember public agency,” within the meaning of 1-200(2), G.S.

 

48.  It is therefore, concluded, that the respondent violated 1-225(a), G.S., by conducting the meetings described in paragraphs 46 and 47, above, without complying with the open meeting requirements of the FOI Act. 

 

49.  It is found that, in an effort to rectify any procedural irregularities or possible FOI Act violations that occurred during and after the June 18, 2008 regular meeting, the respondent conducted an open meeting and recast their votes for the candidates, as described in paragraph 42, above.  It is therefore concluded that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2.f, above. 

 

50.  Because the Commission finds that the multiple violations found in this case are based on a lack of understanding of the requirements of the FOI law generally, it denies the complainant’s request for sanctions, as described in paragraph 3, above.  The Commission finds that ordering an FOI education class is the best method for addressing and correcting the respondent’s lack of understanding. 

 

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 1-225(a), 1-225(b), and 1-231(a), G.S.

 

2.   Forthwith, the respondent, or its designee, shall arrange for an FOI Act training session to be conducted by the staff of the FOI Commission.  The respondent, or its designee, shall forthwith contact the FOI Commission to schedule such training session.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 10, 2009.

 

____________________________

S. Wilson

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:

 

Edward C. Favolise

C/o Eric M. Grant, Esq.

Yamin & Grant, LLC

83 Bank Street

Waterbury, CT 06702

 

Board of Directors,

Highville Charter School, Inc.

C/o Daniel P. Murphy, Esq.

Siegel, O’Connor, O’Donnell & Beck, P.C.

150 Trumbull Street

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-491FD/sw/6/11/2009