FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 29, 2010, at which time the complainant 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.      By letter dated April 7, 2010 and filed April 8, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOI Act”) in the following way: the Board of Selectmen and the Board of Finance (the “respondents”) met in an executive session at a March 10, 2010 joint special meeting to discuss the selection of a Director of Finance, and, during the course of the executive session, discussed the complainant’s performance and employment status, and made derogatory remarks about her.  The complainant further contends that the respondents failed to provide her with notice of their intent to discuss her in executive session and, therefore, denied her the right to request that any discussion concerning her employment occur at an open meeting.

 

3.      At the start of the contested case hearing, counsel for the complainant made a motion to sequester the witnesses in order to avoid duplicative testimony and for purpose of ensuring that all of the testimony was credible.  Counsel for the respondents objected on the ground that a contested case hearing at the Freedom of Information Commission is a public meeting.  After hearing argument on the motion from both sides, the motion to sequester was denied. 

 

4.      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.”

 

5.      Section 1-200(6), G.S., provides in relevant part:

“Executive sessions” means 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(d), G.S., provides in relevant part that:

 

Notice of each special meeting of every public agency. . . shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and 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 Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency.  The secretary or clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting. . . .  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. 

7.      It is found that the complainant is currently employed by the Town of Westbrook as the town’s Treasurer.

8.      It is found that, in June 2009, the respondents formally voted to create an ad hoc committee to review the details of a chartered finance director’s position from another town.    It is found that, in December 2009, the respondents formally voted to create the position of Director of Finance within the Town of Westbrook.  It is further found that, in December 2009, the respondents also created a screening committee to review applications for the position of Director of Finance.  It is found that the screening committee consisted of four individuals, including the First Selectman.

9.      It is found that, in December 2009, the complainant applied for the position of Director of Finance.  It is further found that, by letter dated January 27, 2010, the complainant was informed that she had not been selected for the position. 

 

10.   It is found that, on March 10, 2010, the respondents met in executive session for the purpose of discussing the candidates for the director position. 

11.  It is found that, at the time of the March 10, 2010 executive session referred to in paragraph 10, above, the complainant was no longer a candidate for the director position, and had been so informed. 

12.  It is found that the executive session in question took place in the First Selectman’s office, which office is adjacent to the complainant’s office. 

13.  It is found that, at the time of the executive session referred to in paragraph 10, above, the complainant was in her office.

14.  It is the complainant’s principal contention that, at or around 7:40 PM, when she shut her computer down, she could hear the discussion of individuals attending the executive session.  The complainant contends that she could hear the individuals discussing the possibility of having an interim finance director; re-advertising for new candidates for the Director of Finance position; and the possibility of a particular individual re-applying for the position.  As regards the last part of the discussion, the complainant contends that she heard the attendees laughing.  She further testified that she overheard discussion about the anticipated tensions between the individual occupying the position of Treasurer and the individual occupying the position of Director of Finance.  She further testified that she heard discussion concerning the possibility of eliminating the Treasurer’s position or reducing the associated salary to zero. The complainant believes that, as concerns the issue of possibly soliciting new applications for the director position and the associated laughter, the attendees of the executive session were discussing her. The complainant testified that her belief that she was being discussed is based, in large part, on the fact that, when she interviewed for the position, the interview itself was “perfunctory,” and that certain references she overheard during the executive session seemed to be related to her and evidenced an intention to smear her character. [1]   The complainant conceded, however, that she did not actually hear her name mentioned. 

 

15.  The complainant further contends that, once the executive session discussion focused on her and/or her position as Treasurer, the meeting should have been adjourned in order to invite her into the executive session. 

 

16.  It is found that the agenda for the Board of Selectmen’s March 10, 2010 special meeting listed the following action item:  “Executive session—for the purpose of deliberating over candidates for the Director of Finance position.  Potential public session for vote after deliberations.”

 

17.  It is found that the agenda for the Board of Finance’s March 10, 2010 special meeting agenda listed an action item almost identical to that listed by the Board of Selectmen. 

 

18.  It is found that the purpose of the joint executive session was to discuss the applications of the two finalists who had been selected as potential candidates for the position of Director of Finance.  It is found that the complainant’s name did come up in the context of discussing the two candidates.  Specifically, it is found that the complainant was discussed in connection with the respondents’ preferred candidate because this individual had expressed her intention to withdraw (and subsequently did withdraw) her application for the position.  It is further found that the candidate’s withdrawal of her application was based, at least in part, on her concern for potential conflict with the town’s Treasurer—to wit, the complainant.  It is found that there was some further discussion during the executive session as to what the respondents could do to resolve the conflict or anticipated conflict expressed by the applicant.  It is found that there was also discussion of perhaps, at some later date, combining the positions of Treasurer and Director of Finance.  Finally, it is found that there was no specific discussion at the executive session of the complainant’s employment or job performance.

19.  It is found that, when the respondents concluded their deliberations in executive session, they did not take up any issue for a vote, but rather adjourned their meeting.

20.  In 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), the court 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.”

 

21.  Based on the findings above, it is concluded that the respondents’ agendas fairly apprised the public that a joint executive session would occur during which time the respondents would deliberate upon the candidates for the Director of Finance position.  It is further found that the respondents appropriately convened in executive session to conduct such deliberations. 

 

22.  Based on the foregoing, it is concluded that the respondents did not violate the open meeting provision of §1-225(a), G.S. 

 

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

 

1.      The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Darlene Jones

c/o John M. Walsh, Jr., Esq.

Licari, Walsh & Sklaver, LLC

105 Court Street

New Haven, CT  06511

 

Board of Selectmen, Town of Westbrook;

and Board of Finance, Town of Westbrook

c/o John S. Bennet, Esq.

Gould, Larson, Bennet, Wells & McDonnell, PC

P.O. Box 959

Essex, CT  06426

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-228/FD/cac/3/25/2011