In the Matter of a Request
    for Advisory Opinion



     Advisory Opinion   #38

Harold Baker, Applicant





On November 14, 1979, the Commission considered and agreed to respond to a request for an advisory opinion filed by Harold Baker of Waterbury, Connecticut.


In essence, the applicant seeks the Commission's opinion as to whether it is permissible under the Freedom of Information Act for a public agency to hold an executive session to discuss the candidacies of several persons for a single employment position, where one candidate requests that the discussion be conducted at a meeting open to the public.


Before responding to this specific inquiry, it is necessary to interpret portions of two statutes, and to analyze their relationship to each other. The first statute is Conn. Gen. Stats §l-21, which provides in pertinent part that


[a] public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.


The second relevant statute is Conn. Gen. Stats. §1‑18a(e)(1), which states that a public agency may convene in executive session for


 [d]iscussion 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....








It is the opinion of the Commission that the language of §1-21, empowering an agency to conduct executive sessions, is permissive and not mandatory. Morris v. Timenterial, Inc., 168 Conn. 41, 43 (1975); General Motors Acceptance Corp. v. Powers, 137 Conn. 145, 149 (1950). Consequently, where a proper purpose exists under §1-18a(e), the decision to convene in executive session lies, at least initially, in the exclusive discretion of the agency. And, in the absence of governing authority to the contrary, no one outside the agency has the right to require that it conduct such a session.


When, however, the purpose of a proposed executive session is to discuss the hiring of a public employee, or any of the other personnel matters set forth in §1‑18a(e)(1), a further condition must be met before the session can be held. Because that subdivision of the statute explicitly permits the individual who is the subject of discussion to require that the discussion be held at an open meeting, the individual must be given a meaningful opportunity to exercise that option. It is therefore the Commission's opinion that the individual subject of a proposed, §1‑18a(e)(1) executive session must be given advance notice of the intended session, and, must be informed of his right to require discussion at an open meeting. See Journal Inquirer v. Town of East Windsor, et al., Docket #FIC78‑130. This conclusion is entirely consistent with the primary rule of statutory construction that every word, phrase or sentence in a legislative enactment is presumed to have meaning and purpose. Levin-Townsend Computer Corp. v. Hartford, 166 Conn. 405, 409 (1974); State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168 (1974).


Thus, when §1‑21 is read together with §1‑18a(e)(1), the rights of public agencies and the rights of individuals, who are, subject to discussion, emerge. Under these statutes, the initial choice, of whether to convene in executive session belongs exclusively to the agency. If the agency chooses to conduct an open meeting, the subject individual cannot compel an executive session. On the other hand, if a public agency decides to hold an executive session for a purpose incorporated in §1‑18a(e)(1), it can do so only if the subject individual does not exercise his right to require an open meeting.


Based upon the foregoing analysis, the Commission can now address the specific problem raised by the applicant. It is the Commission's opinion that where one of several candidates for a single employment position requests that his candidacy be discussed at an open meeting, that request must be honored to the greatest extent possible. This conclusion is required by the proviso contained in §1-18a(e)(1). Therefore, if the discussion of that candidate can be severed from the discussion of the others, it must be held at a meeting open to the public. Under these circum­stances, the discussion relating to the remaining candidates may be held either in executive session or at a public meeting, according to the sound discretion of the agency. If, however, all or part of the discussion of the various candidates cannot be severed, for example where comparisons are inevitable, the agency again, in its sole discretion, may hold such discussion either in executive session or open meeting. It is the Commission's opinion that this interpretation best achieves a fair balance between the rights of the agency and the rights of the individuals recognized in the referenced statutes.


In implementing this opinion, it is incumbent upon agencies to make good faith judgments that will maximize the right to a public meeting accorded to individuals otherwise subject to a §1-18a(e)(1) executive session. Where a good faith effort is made to effectuate the guidelines set forth in this opinion, the Commission will not attempt to second-guess or substitute its judgment for that of the agency involved.






                                                                                            By Order of the Freedom of
                                                                                            Information Commission


                                                                                            Judith A. Lahey, Chairman of
                                                                                            of the Freedom of Information

Date  ___________________



Leslie Ann McGuire, Clerk of the Commission