FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 4, 2010, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The parties requested the opportunity to file briefs prior to the issuance of the hearing officer’s report, which request was granted.  The briefs were filed on December 20, 2010. 

           

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 complaint dated July 12, 2010, and filed July 15, 2010, the complainant appealed to this Commission, alleging that the respondents, on June 22, 2010, “held an illegal and secret meeting, in violation of the Freedom of Information (“FOI”) Act,” in that they:

 

(a)    Discussed a matter that had never been disclosed as an agenda item either to the complainant or the public, i.e., termination of the complainant’s employment;

(b)   Failed to give the complainant and the public notice of a meeting on the complainant’s proposed termination;

(c)    Denied the complainant the right to attend and participate in the meeting regarding his termination;

(d)   Denied the complainant the right to request that the meeting on his termination be held in public session;

(e)    Failed to disclose, when they came out of executive session, what decisions were made, though they had decided to terminate the complainant and to issue a notice of hearing pursuant to Conn. Gen. Stat. §7-278;

(f)    Failed to reduce the vote of each commissioner to writing;

(g)   Failed to make their votes public;

(h)   Failed to record the times for going in and out of public session;

(i)     Failed to list the attendees in the executive session;

(j)     Failed to take any votes in executive session;

(k)   Failed to return to public session after the executive session; and

(l)     Failed to prepare or post minutes of the meeting, including but not limited to the illegal executive session.

 

3.  The complainant seeks civil penalties against the respondents, as well as an order from the Commission declaring null and void the actions taken by the respondents on June 22, 2010.

 

4.  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.  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 … and shall also be recorded in the minutes of the session at which taken.  Not later than seven days after the date of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available, except that no public agency of a political subdivision of the state shall be required to post such minutes on an Internet web site.  Each public agency shall make, keep and maintain a record of the proceedings of its meetings.

 

5.  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 clerk of such subdivision for any public agency of a political subdivision of the state….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….

 

6.  Section 1-200(6), G.S., defines “executive session” 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; … (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.  (Emphasis added).

 

            7.  Section 1-231(a), G.S., provides, in relevant part that “the minutes of such executive session shall disclose all persons who are in attendance….”

 

8.  It is found that, at 5:30 p.m., on June 22, 2010, the respondent town council held a special meeting (the special meeting).  It is found that the agenda for the special meeting was timely posted on June 21, 2010, in the office of the town clerk.  It is found that items 2 and 3 on the agenda state:

 

“2.  Executive session for the purpose of discussing a legal opinion regarding charter and code requirements of a senior town official as well as a draft proposed severance package for a senior town official.”

 

“3.  Possible actions regarding approval of authorization of a severance package for a senior town official and a temporary appointment to fill said position.”

 

9.  It is found that, for 12 years prior to the special meeting, the complainant was the town of East Hampton’s chief of police.  It is found that, in accordance with the town charter, the position of chief of police “shall be appointed or removed for cause by the town manager.”

 

10.  It is found that, at approximately 4:00 p.m., on the day of the special meeting, the town manager, Jeffrey O’Keefe, summoned the complainant to his office for a meeting (the 4:00 meeting).  It is found that the complainant was under the impression that the reason for the 4:00 meeting was to discuss budget matters.  However, it is found that, when he arrived at Mr. O’Keefe’s office, Mr. O’Keefe informed him that he was terminated from his position as chief of police, effective immediately, and the complainant’s firearm and badge were taken from him.  It is also found that, during the four o’clock meeting with Mr. O’Keefe, the complainant was presented with a severance package, and was told by Mr. O’Keefe that he could have a few days to consider the package.  It is found that the complainant was not informed of the 5:30 p.m. special meeting prior to such special meeting.  It is found that the 4:00 meeting concluded at approximately 4:15 p.m., and that thereafter, the complainant was driven home.

 

11.  It found that, at 5:32 p.m., the special meeting was convened and the respondent town council immediately entered into executive session (the executive session).  It is found that Susan Weintraub, a member of the town council, immediately asked the other members, after reviewing the agenda, whether the unnamed individual who was to be discussed in executive session had been notified and had waived his rights, because it appeared from her review of the agenda that the discussion would pertain to the termination of that individual’s employment.  It is found that the attorney for the town replied that the individual had not been notified because the purpose of the executive session was not “employee performance review” but “attorney-client privilege and a draft document.” 

 

12.   It is found that Mr. O’Keefe, who was not a member of the town council, was present during the executive session, and that he informed the members of the town council in attendance that he had, at the 4:00 meeting, terminated the complainant from his position as chief of police.  Ms. Weintraub testified credibly, at the hearing in this matter, and it is found that, a discussion of the complainant’s termination then ensued, mainly focusing on the issue of whether the complainant’s termination was retaliatory in nature or was done for the stated purpose of reducing the town’s expenses.  Although the respondent Melissa Engel, the chairperson of the respondent town council, testified, at the hearing in this matter, that no discussion of the complainant’s termination occurred during the executive session, it is found that her testimony is not credible.  It is further found that, in addition to the discussion of the reason for the complainant’s termination, the severance package that had been given to the complainant by Mr. O’Keefe at the 4:00 meeting was discussed during the executive session.  In addition, it is found that, during the executive session, a written legal opinion was discussed.

 

13.  It is found that the respondent town council came out of executive session at 6:10 p.m., and voted, in public, 5-1, with Ms. Weintraub opposed, to authorize the town manager to offer the severance package, discussed in executive session, to the complainant.  It is found that this severance package is the same severance package that had previously been provided to the complainant by Mr. O’Keefe at the 4:00 meeting.  It is also found that the respondent town council voted, 5-1, with Ms. Weintraub opposed, to appoint Mr. O’Keefe as the acting chief of police.

 

14.  It is found that the special meeting was adjourned at 6:20 p.m., and that the minutes of the special meeting were created and posted in the office of the town clerk.  It is found that such minutes reflect the votes of each member of the town council, the times for going into and coming out of executive session, and that the respondents returned to public session after the executive session.  It is found, however, that although the minutes reflect who was present at the special meeting, they do not reflect who was present during the executive session.  

 

15.  Based upon the findings in paragraphs 9, 13 and 14, above, it is concluded that the respondents did not violate the FOI Act, as alleged in paragraphs 2(e), 2(f), 2(g), 2(h), 2(k), and 2(l), above.[1]

 

16.  Based upon the finding in paragraph 14, above, it is concluded that the respondents violated §1-231(a), G.S., as alleged in paragraph 2(i), above.

 

17.  It is found that, subsequent to his termination by Mr. O’Keefe, the complainant requested a hearing, pursuant to §7-278, G.S., which provides, in relevant part, that:

 

No active head of any police department of any town, city or borough shall be dismissed unless there is a showing of just cause by the authority having the power of dismissal and such person has been given notice in writing of the specific grounds for such dismissal and an opportunity to be heard in his own defense, personally or by counsel, at a public hearing before such authority.  Such public hearing, unless otherwise specified by charter, shall be held not less than five nor more than ten days after such notice.

 

18.  It is found that a public hearing was convened on July 2, 2010, pursuant to §7-278, G.S., and adjourned, and later reconvened in October 2010.  It is found that, in early November, 2010, a decision was rendered by the new town manager, Robert Durey, finding that Mr. O’Keefe did not have “just cause” to terminate the complainant from his position as chief of police.  It is also found that the complainant was thereafter reinstated to his position as chief of police.

 

19.   It is found that the gravamen of the complaint, described in paragraph 2(a), above, is that the respondents considered business not on its notice of special meeting.  Based upon the findings in paragraphs 11 through 13, above, it is concluded that the respondents violated §1-225(d), G.S., as alleged in paragraph 2(a), above.

 

20.  It is further found that the allegation described in paragraph 2(b), above, read in conjunction with the allegation described in paragraph 2(e), above, incorrectly assumes that the complainant had not been terminated by the town manager prior to the special meeting and that the respondent town council had the authority and the intention to terminate him during the special meeting.  Based upon the findings of fact in paragraphs 9, 10, and 12, above, however, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 2(b), above.

 

21.  It is found that the gravamen of the complaint, as described in paragraph 2(c), and 2(d), above, is that the respondents failed to notify the complainant that his termination would be discussed in the executive session.  Based upon the findings in paragraph 11 through 13, above, it is concluded that the respondents violated §1-225(a), G.S., as alleged in paragraphs 2(c) and 2(d), above. 

 

22.  Counsel for the respondents argued, at the hearing in this matter, that the executive session was permitted, and therefore that there was no violation, because the purpose of the executive session was to discuss a written legal opinion and to discuss a draft document.  While the respondents may have had a legitimate basis for portions of its executive session discussions during the special meeting, the discussions pertaining to the complainant’s termination were impermissible, as found above. 

 

23.  The complainant seeks civil penalties and an order from the Commission declaring the actions of the respondent town council taken at the special meeting null and void.   With regard to the complainant’s request for civil penalties, the Commission declines to impose a civil penalty. 

 

24.  With regard to the complainant’s request that the Commission declare the actions of the respondent town council null and void, the Commission notes that the action taken by the respondent town council, as it pertains to the complainant, was the vote to authorize the town manager to offer the severance package to the complainant.  Because this action benefitted the complainant, and because, as of the date of the hearing in this matter, the complainant had been reinstated to his position as chief of police, the Commission declines to declare the action of the respondent town council null and void.

 

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 §§1-225(a) and 1-231, G.S.

 

2.       The members of the respondent town council are ordered to contact the Commission to set up a training session on executive session procedures within three months of the notice of final decision.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 11, 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:

 

Matthew A. Reimondo

c/o Alexandra J. Rosenblatt, Esq.

Law Offices of Leon M. Rosenblatt

10 North Main Street

West Hartford, CT  06107

 

Melissa H. Engel, as Member, Town Council,

Town of East Hampton; John W. Tuttle, as

Member, Town Council; Town of East Hampton;

Thomas M. Cordeiro, as Member, Town Council,

Town of East Hampton; William G. Devine, as

Member, Town Council, Town of East Hampton;

Christopher J. Goff, as Member, Town Council,

Town of East Hampton; Barbara W. Moore, as Member,

Town Council, Town of East Hampton; and

Town Council, Town of East Hampton

c/o Jean M. D’Aquila, Esq.

D’Aquila Law Offices, LLC

100 Riverview Center, Suite 205

Middletown, CT  06457

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-444/FD/cac/5/17/2011