FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Michael Courtney and State of

Connecticut, Office of the Chief

Public Defender,

 
  Complainants  
  against   Docket #FIC 2009-088

Chairperson, State of Connecticut,

Connecticut Medical Examining

Board; and State of Connecticut,

Connecticut Medical Examining Board,

 
  Respondents December 16, 2009
       

 

The above-captioned matter was heard as a contested case on June 12, 2009, at which time the complainants and the respondents appeared, stipulated to certain facts 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 respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.      It is found that by letter dated January 8, 2009, the complainants submitted a “Request for a Declaratory Ruling” to the respondent board asking: “Is physician participation in the execution of condemned Connecticut inmates using lethal injection permitted?”  It is found that the complainants sought a determination as to whether a physician’s participation in executions constituted a departure from the ethics of the medical profession and whether such participation would subject the physician to disciplinary action. 

 

3.      It is found that, at its January 20, 2009 meeting, the respondent board convened in executive session to “obtain legal advice” regarding the request for declaratory ruling, described in paragraph 2, above.  It is found that the respondent board convened in executive session for approximately ten minutes. 

 

4.      It is found that by letter dated February 13, 2009, the complainants informed Mr. Thomas J. Ring, Assistant Attorney General and counsel to the respondent board, that they believed there was a “potential conflict of interest” in his representation of the respondent board.  The letter states, in part, as follows:

 

We write to inform you of a potential conflict of interest in your continuing representation of the State Medical Examining Board in [this] matter . . .

. . .

It would seem to us that any advice your office might give the Board in determining whether to issue the ruling requested, or as to the content of such a ruling, would pose a significant risk that the representation of one of your two clients, the Board or Dr. Galvin, would be materially limited by your office's responsibilities to the other client.

We suggest, therefore, that the State Medical Examining Board be provided with outside counsel before making any ruling on this request. We recognize that you may not see this as any real issue, but we felt it incumbent upon us to point this possible conflict out to you . . . .

 

5.      It is found that, at its February 17, 2009 meeting, the respondent board convened in executive session for the following announced purpose: to “discuss [the] pending claim contained in [the] letter from Attorney Courtney to Assistant Attorney General Thomas Ring.”  It is found that the respondent board convened in executive session for approximately five minutes. 

 

6.      By letter dated and filed on February 18, 2009, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by convening in executive session during the respondent board’s January 20 and February 17, 2009 meetings for purposes not permitted under the Act.  The complainants requested that the respondents be ordered to disclose the content of the discussions held during the aforementioned executive sessions.

 

7.      At the hearing on this matter, and in their briefs, the respondents contended that, pursuant to 52-146r, G.S., a public agency may convene in executive session to receive legal advice claiming that said section “protects all oral communications transmitted for purposes of obtaining confidential legal advice sought by the public agency from an attorney.”  The respondents also contended that 1-231 and 52-146r, G.S., are in conflict with each other and that because 52-146r, G.S., reflects the legislature’s more recent articulation of its intention, 52-146r, G.S., controls.  

 

8.      The respondents also contended at the hearing on this matter, and in their briefs, that not only were they permitted to convene in executive session pursuant to 52-146r, G.S., but that they were permitted to convene in executive session during both the January 20 and February 17, 2009 meetings pursuant to 1-200(6), G.S.

 

9.      Section 1-225(a), G.S., provides in relevant 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.”

 

10.   Section 52-146r, G.S., prohibits disclosure of confidential communications between a government attorney and a public official or employee of a public agency and provides, in relevant part, that:

 

[i]n any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure.

 

11.       However, 1-231(b), G.S., provides that:

 

An 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. 

 

12.       An established principle of statutory construction is that “specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling . . . The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage." (Citations omitted; internal quotation marks omitted.) Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 760, 830 A.2d 711 (2003) citing Moscone v. Manson, 185 Conn. 124, 133-34, 440 A.2d 848 (1981).

 

13.       Section 52-146r, G.S., is an evidentiary statute which prohibits governmental attorneys from disclosing privileged communications in civil, criminal, legislative or administrative proceedings.  On the other hand, it is found that the language in 1-231(b), G.S., specifically covers the issue presented in this case, which is whether a multimember public agency may convene in executive session to receive or discuss oral communications that would ordinarily be privileged by the attorney-client relationship.  Therefore, 1-231(b), G.S., is controlling.  

 

14.       Section 1-231(b), G.S., specifically precludes a multimember public agency from convening in executive session to receive oral communications that would otherwise be privileged by the attorney-client relationship unless the executive session is for one of the five explicitly permitted purposes found in subdivision (6) of section 1-200, G.S.[1]  

15.       With respect to the respondents’ contention that the respondent board convened in executive session for a permissible purpose pursuant to 1-200(6), G.S., the respondents offered no evidence that the executive session convened during the January 20, 2009 meeting was for one of the five permissible purposes found in 1-200(6), G.S.

 

16.       It is concluded, therefore, that the respondents failed to prove that the respondent board convened in executive session during its January 20, 2009 meeting for a purpose permitted under 1-200(6), G.S.

 

17.       However, the respondents contended in their brief that they convened in executive session during the February 17, 2009 meeting to discuss strategy and negotiations with respect to pending claims pursuant to 1-200(6)(B), G.S.  In that regard, the respondents contended that the complainants’ February 13, 2009 letter, described in paragraph 4, above, included a demand for legal relief and therefore, constituted a pending claim within the meaning of 1-200(8), G.S.

 

18.       Section 1-200(6)(B), G.S., provides that: 

 

“Executive sessions” means a meeting of a public agency at which the public is excluded for… strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled . . . .

 

19.       Section 1-200(8), G.S., provides that:

 

“Pending claim” means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.

 

20.   It is found that a fair reading of the February 13, 2009 letter, described in paragraph 4, above, reveals that the complainants were merely pointing out what they considered to be a “potential” conflict and only suggested that the respondent board be provided with outside legal counsel before issuing a decision related to the request for a declaratory ruling.

 

21.   It is found that the complainants’ letter did not constitute notice of a pending claim.  It is found that the complainants were deliberate in their choice of words when drafting the February 13, 2009 letter because they wanted to avoid even implying that they were demanding any relief or that they intended to institute an action regarding the alleged potential conflict of interest. 

 

22.   It is found, therefore, that the February 13, 2009 letter was not a “written notice which set forth a demand for legal relief or which asserted a legal right stating the intention to institute an action in an appropriate forum if such relief or right was not granted,” within the meaning of 1-200(8), G.S.

23.   Furthermore, it is found that the respondents failed to prove that their discussion of the February 13, 2009 letter constituted “strategy” or “negotiations” within the meaning of 1-200(6)(B), G.S.

 

24.   Consequently, the discussion held by the respondents during their February 17, 2009 meeting was not “strategy and negotiations with respect to pending claims” within the meaning of 1-200(6)(B), G.S.

 

25.   Based on the foregoing, it is concluded that the respondents violated the open meetings provisions of 1-225(a), G.S., by failing to hold the discussions described in paragraphs 3 and 5, above, in public. 

 

26.   Under the facts and circumstances of this case, the Commission, in its discretion, declines to grant the specific form of relief requested by the complainants.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.      Henceforth, the respondents shall strictly comply with the provisions of 1-225(a), G.S.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 16, 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:

 

Michael Courtney and State of

Connecticut, Office of the Chief

Public Defender

C/o Michael Courtney, Esq.

30 Trinity Street

Hartford, CT 06106

 

and

 

Daniel Habib, Certified Legal Intern

29 Nash Street

New Haven, CT 06507

 

Chairperson, State of Connecticut,

Connecticut Medical Examining

Board; and State of Connecticut,

Connecticut Medical Examining Board

C/o Kerry A. Colson, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-088FD/sw/12/17/2009

 



[1] However, it is permissible to convene in executive session to discuss the contents of records subject to the attorney-client privilege pursuant to 1-200(6)(E) and 1-210(b)(10), G.S.  See Docket #FIC 2006-414; Robert Fromer v. Michael Sinko, Chairman, Hospital Advisory Committee, Town of Preston; Allyn Brown III, Roy Beauregard, Kent Borner, Robert Congdon, Sandy Ewing, Merrill Gerber, Gerald Grabarek, Dan Kulesza, and Kristina Gregory, as members, Hospital Advisory Committee, Town of Preston; and Hospital Advisory Committee, Town of Preston (Commission concluded that respondent committee convened an executive session in order to discuss the contents of records subject to the attorney-client privilege, within the meaning of 1-210(b)(10), G.S.)