FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 12, 2011, 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.      It is found that the respondent board conducted a special meeting on November 12, 2010 (hereinafter “the meeting”).

 

3.      By letter filed on December 14, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to vote in public at the meeting and by failing to record the votes of each member in the minutes of the meeting.

 

4.      The respondents claim that the Commission lacks subject matter jurisdiction over the complainant’s appeal because it was filed more than 30 days after the November 12, 2010 meeting.

 

5.      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. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. [Emphasis added.]

 

6.      It is found that the complainant’s appeal was postmarked on December 13, 2010.

 

7.      The Commission takes administrative notice of the fact that the thirtieth day after November 12, 2010, was Sunday, December 12, 2010, a day on which the offices of the Commission were closed.

 

8.      Section 1-21j-22 of the Regulations of Connecticut State Agencies provides:

 

All papers and other recorded information governed by sections 1-21j-1 to 1-21j-57 of the Regulations of Connecticut State Agencies, shall be deemed to have been filed on the date they are recorded as having been received by the commission at its principal office. The commission shall accept papers and other recorded information transmitted by electronic mail or fax to the same extent permitted by the rules of the superior court in civil actions.

 

9.      Section 1-21j-15 of the Regulations of Connecticut State Agencies provides:

 

Computation of any period of time referred to in sections 1-21j-1 to 1-21j-57, inclusive, of the Regulations of Connecticut State Agencies begins by first counting the day after the day on which the precipitating event occurs, and ends on the last day of the period so computed. The last day of the period is to be included unless it is a day on which the principal office of the commission is closed, in which event the period shall run until the end of the next following business day. If the period of time, including the intervening Saturdays, Sundays and legal holidays, is five (5) days or less, such Saturdays, Sundays and legal holidays shall be excluded from the computation; otherwise such days shall be included in the computation. [Emphasis added.]

 

10.  It is concluded that the complaint in this matter was required to be postmarked by the end of the business day on Monday, December 13, 2010.

 

11.  It is concluded that the Commission has subject matter jurisdiction over the complaint, which was postmarked on December 13, 2010.

 

12.   It is found that on November 12, 2010, the respondents held a level-three grievance hearing in compliance with the collective bargaining agreement between the complainant’s union and the respondent Board of Education.

 

13.  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. 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 . . .

 

14.   It is found that the evidentiary portion of the grievance hearing was open to the public.

 

15.   It is found that after the evidentiary portion of the hearing, the respondents met in a closed session to deliberate on the grievance.

 

16.   It is found that the discussion in the closed session concerned whether there had been any adverse action taken against the complainant.  It is found that the respondents used the closed session to discuss and make a decision about the complainant’s grievance.

 

17.   It is found that the only people permitted to attend the respondents’ closed session at the meeting were members of the Personnel Committee and another member of the Board of Education.

 

18.   It is found that neither the complainant nor the complainant’s union representative participated in or was permitted to attend the closed session.

 

19.   It is found that the respondents subsequently reconvened in open session and announced that the complainant’s grievance was denied.

 

20.   The respondents claim that their closed session was not a “meeting,” within the definition of §1-200(2), G.S., because it was strategy or negotiations with respect to collective bargaining.

 

21.   Section 1-200(2), G.S., provides:  “Meeting” does not include … strategy or negotiations with respect to collective bargaining[.]”

 

22.   The respondents contend that the deliberations in closed session were strategy or negotiations with respect to collective bargaining because, they assert, any board determination about whether the complainant substantiated the grievance under the collective bargaining agreement necessarily further defined the terms of the agreement.

 

23.   The respondents rely on Waterbury Teachers Association v. Freedom of Information Commission, 240 Conn. 835, 843 (1997), which held: 

 

Grievance hearings are meetings that must be open to the public during the presentation of evidence regarding the underlying facts allegedly giving rise to the grievance, but they may be closed to the public, in the absence of a waiver, during negotiations regarding appropriate remedies or settlements.

 

24.   In Waterbury Teachers Association, the board of education conducted the entire grievance hearing in closed session.  On appeal, the court rejected the argument of the board and the union that grievance hearings, in their entirety, are strategy or negotiation sessions.  Instead, the court held that the evidentiary portion must be open to the public. Waterbury did not address, however, whether grievance proceedings that are not evidentiary are, by default, strategy and negotiations with respect to collective bargaining.  Waterbury did not answer the precise issue presented in this case:  whether deliberations about an alleged violation of a collective bargaining agreement must be considered strategy or negotiations with respect to collective bargaining.   

 

25.   In a case concerning binding arbitration, and which, like this case and Waterbury Teachers Association, required the court to determine the applicability of the exemption for strategy and negotiations with respect to collective bargaining, the Superior Court in Waterbury Firefighters Assn. v. City of Waterbury, No. CV 01166380S, at *17, Judicial District of Waterbury, at Waterbury (September 26, 2001), stated:

 

Whether any portion of an arbitration hearing constitutes strategy or negotiations is a question that must be answered on a case by case analysis based on the particular facts and circumstances of the arbitration.  The Board’s decision to conduct the proceedings in public, except to the extent that a particularized showing is made that the discussion before, or presentation of evidence to, the Board constitutes ‘strategy or negotiations,’ is legally correct. (Emphasis added.)

 

26.   Glastonbury Education Association v. Freedom of Information Commission, 234 Conn. 704, 712-713 (1995) stated:

 

[T]he statutory definition of public meetings contained in § [1-200(2), G.S.] must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings.  Accordingly, the language providing that public meetings ‘shall not include . . . strategy or negotiations with respect to collective bargaining’ means as the FOIC maintains that what is excluded from the term ‘meeting’ is not all collective bargaining, but only ‘strategy or negotiations’ sessions that relate to collective bargaining. This interpretation accords proper respect for the manifest legislative policy expressed in the FOIA. It also comports with its legislative history, which suggests that the collective bargaining exception was understood to provide privacy for ‘the give-and-take in negotiating sessions of collective bargaining. . . .’ 18 H.R. Proc., supra, p. 3896.  Had the legislature intended a broader exclusion, it could have excluded ‘collective bargaining’ without limitation, or it could have excluded ‘collective bargaining, including but not limited to strategy and negotiations relating thereto.’ …  It chose neither of these options. (Citation omitted; emphasis in original.)

 

27.  It is concluded that Waterbury Teachers Association v. Freedom of Information Commission, supra, 240 Conn. 842, clearly contemplates a closed session only where any strategy is discussed in the context of active negotiations: 

 

[T]he parties ‘bargain back and forth’ and often resolve the grievance through a new interpretation of the collective bargaining agreement.  That new interpretation may result in the execution of new memoranda of understanding that may become part of present or future collective bargaining agreements. 

 

28.   Although the FOI Act does not define the terms “strategy” and “negotiations,” the state’s appellate courts have examined such terms in the context of the collective bargaining exemption: 

 

Strategy is defined as a careful plan or method and the art of devising or employing plans or stratagems toward a goal. … Negotiations is a broad term, not in all connotations a term of art, but in general it means the deliberation which takes place between the parties touching a proposed agreement . . . the deliberation, discussion, or conference on the terms of a proposed agreement; a treating with another with a view to coming to terms. . . . Negotiations look to the future, and are preliminary discussions... (Citations omitted; emphasis in original; internal quotation marks omitted.) 

 

Bloomfield Education Assn. v. Frahm, 35 Conn. App. 384, 390, cert. denied, 231 Conn. 926, (1994).

 

29.   Based on the findings of fact set out in paragraphs 14 through 19, above, it is found that the respondents’ did not “bargain back and forth” with the complainant or her union representative, as neither was permitted to participate in or even attend the closed session. It is found that the respondents’ deliberation among the members of the board of education was not the “give-and-take in negotiating sessions of collective bargaining” that the legislature intended to exempt from the FOI Act’s access requirements. (See paragraph 26, above.)

30.   It is found that the respondents’ closed session was not negotiations with respect to collective bargaining, within the meaning of §1-200(2), G.S.

 

31.   With respect to whether the closed session was strategy with respect to collective bargaining, it is found that, notwithstanding the respondents’ claim, described in paragraph 22, above, the respondents failed to prove that their deliberation in closed session was the devising of a careful plan or method, or tactics, toward a goal. 

 

32.   It is found that the respondents failed to prove that their closed session was strategy with respect to collective bargaining, within the meaning of §1-200(2), G.S.

 

33.   The respondents also rely on a previous Commission decision, Borer v. Personnel & Negotiations Committee, Board of Education, Milford Public Schools, Docket #FIC 1999-611 (May 24, 2000).  It is concluded, however, that Borer is not inconsistent with the Commission’s decision in this case.  In Borer the board of education’s closed session to discuss “the appropriate remedy, if any, regarding the complainant’s grievance” was found not to be a meeting within the meaning of §1-200(2), G.S.  Although the Commission concluded that the closed session was strategy with respect to collective bargaining, it is not apparent from the final decision what evidence the respondents submitted to prove that the proceeding was not a meeting. Cf.  Doninger and the Monroe Courier v. Chairman, Monroe Board of Police Commissioner, Town of Monroe; and Monroe Board of Police Commissioners, Town of  Monroe; Docket #FIC 1998-58 (August 24, 1998), where the Commission’s conclusion that the respondents’ closed session was not a meeting within the meaning of §1-200(2), G.S., was based on evidence that the respondents met privately with their attorney in order to strategize about the union grievance and the upcoming evidentiary hearing, and also met in closed session with the grievant and his union representative in an effort to negotiate a resolution of the grievance.

 

34.   Furthermore, since 1997, when the Connecticut Supreme Court decided  Waterbury Teachers Association v. FOI Commission, supra, 240 Conn. 835, public agencies have held grievance proceedings in sessions that were meetings within the meaning of §1-200(2), G.S.  See, for example, O’Connell v. Chairman, Board of Fire Commissioners, City of Bridgeport; and Board of Fire Commissioners, City of Bridgeport; Docket #FIC 2003-189 (January 14, 2004) (agency deliberated and voted on grievance in open session); Mara v. Carriero, Chairman, Police Commission, Borough of Naugatuck, et al. Docket #FIC 2001-199 (April 10, 2002) (agency convened in executive session for discussion of complainant’s grievance).   

 

35.   It is found that the respondents’ closed session of November 12, 2010 was a “meeting” within the meaning of 1-200(2), G.S.

 

36.   It is found that such meeting failed to comply with the access requirements of §1-225(a), G.S., in that it was not open to the public and the vote of each member of the respondent committee was not reduced to writing and available to the public within 48 hours. (It is found that although the respondents stated in open session that the vote was 3 to 1, the vote of each member was not reduced to writing and available to the public.)

 

37.   Accordingly, it is concluded that the respondents violated §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.  Henceforth, the respondents shall strictly comply with §1-225(a), G.S.

 

2.  Forthwith, the respondents shall file amended minutes of its November 12, 2010 meeting.  Such amended minutes shall include a detailed summary of what was discussed at the closed session and shall include a record of all votes taken.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 13, 2011.

 

 

____________________________

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:

 

Mary C. O’Reilly

1 Lower Deer Run

Sharon, CT 06069

 

Chairman, Board of Education,

Regional School District; Personnel

Committee, Board of Education,

Regional School District 1; and

Board of Education, Regional School

District 1

246 Warren Turnpike Road

Falls Village, CT 06031

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-766FD/sw/7/18/2011