: SUPERIOR COURT
: JUDICIAL DISTRICT OF
: NEW BRITAIN
OF INFORMATION :
JUNE 11, 2001
MEMORANDUM OF DECISION
is an administrative appeal from a final decision of the defendant, Freedom of
Information Comrnission ("FOIC"), brought pursuant to General
Statutes §§ 1-206(d) and 4-183. The plaintiff, David Royce, seeks to reverse
the decision of the FOIC in its contested case, Royce v. Freedom of
Inforrnation Cornrnission, Docket No. FIC 2000-395. The plaintiff claims
that the FOIC erred in concluding that the provisions of the Freedom of
Information Act were not violated when the Board of Finance for the town of
Wesport held an executive session on June 30, 2000 to discuss a vacancy on the
board. In the present appeal, the plaintiff argues that the executive session
was not lawful because a member of the Board of Finance is not a "public
offrcer" within the meaning General Statutes § 1-200(6)(A) authorizing
executive sessions. The town of Westport intervened as a party defendant,
The following facts are relevant to this appeal and are undisputed. A member of the Board of Finance resigned because he was leaving the community and a replacement was required. (Return of Record ("ROR"), p. 34.) At a duly noticed meeting on June 30, 2000, the Board of Finance voted unanimously to go into executive session for the purpose of discussing the appointment of a new member to its board. (ROR, p. 20.) Ten candidates had already been interviewed in public sessions. (ROR, p. 34.) Immediately following the executive session, a public meeting was held to vote to fill the vacancy. (ROR, p. 18.) After the first nomination failed on a 4‑2 vote, the second person nominated was elected to serve the remainder of the departing member's term. (ROR, p. 18.) There is no dispute that the Board of Finance interviewed candidates for the position in public session, discussed their suitability in executive session and filled the vacancy in public session.
Statutes § 1-200(6) defines "executive session" as "a meeting
of 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." This subsection creates an exception from the Freedom of
Information Act's open meeting provisions to permit a public agency to
deliberate in executive session for purposes of discussion concerning the
appointment of a public official. Board of Education v. Freedom of
Information Commission, 213 Conn. 216 (1989). The plaintiff argues that a
member of the Board of Finance is not a "public officer" and
therefore the Board was not authorized under § 1‑200(6)(A) to hold an
court reviews the issues raised by the plaintiff in accordance with the
limited scope of judicial review afforded by the Uniform Administrative
Procedure Act ("UAPA"). Dolgner v. Alander, 237 Conn. 272,
280 (1996). "The scope of permissible review is governed by § 4-183(j)
and is very restricted. See Cos Cob Volunteer Fire Co. No. 1, Inc. v.
Freedom of Information Commission, 212
Conn. 100, 104, 561 A.2d 429 (1989); New Haven v. Freedom of Information
Commission, 205 Conn. 767, 774,
535 A.2d 1297 (1988).... [T]he trial court may [not] retry the case or
substitute its own judgment for that of the defendant. C & H
Enterprises, Inc. v. Commissioner of Motor Vehicles,
176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of
Motor Vehicles, 168 Conn. 587,
589, 362 A.2d 840 (1975); see General Statutes § 4-183(g). New Haven v
Freedom of Information Commission, supra,
773. The conclusion reached by the [agency] must be upheld if it is legally
supported by the evidence.... The credibility of witnesses and the
determination of factual issues are matters within the province of the
administrative agency, and, if there is evidence . . . which reasonably
supports the decision of the [agency], [the court] cannot disturb the
conclusion reached by [the agency]. Hart Twin Volvo Corporation v.
Commissioner of Motor Vehicles, 165
Conn. 42, 49, 327 A.2d 588. See Paul Bailey's Inc. v. Kozlowski,
167 Conn. 493, 496-97, 356 A.2d 114 (1975). Lawrence v. Kozlowski,
171 Conn. 705, 708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.
Ct. 2930, 53 L. Ed. 2d 1066 (1977). Our ultimate duty is to determine, in view
of all of the evidence, whether the agency, in issuing its orders, acted
unreasonably, arbitrarily, illegally or in abuse of its discretion. Dolgner v. Alander, supra, 237 Conn. 280-81." (Footnote omitted; internal
quotation marks omitted.) Domestic Violence Services of Greater New Haven.
Inc. v. FOIC, 47 Conn. App. 466, 469-70 (1998).
of law reached by the administrative agency must stand if the court determines
that they resulted from the correct application of the law to the facts found
and could reasonably and logically follow from such facts. New Haven v.
Freedom of Information Commission, 205 Conn. 767, 774 (1988). Ordinarily,
great deference is given to the construction given a statute by the agency
charged with its enforcement. Connecticut Assn. of Not-for-Profit Providers
for the Aging v. Dept. of Social Services, 244 Conn. 378, 389 (1998).
rule allowing executive sessions to discuss interim appointments has long been
the law in Connecticut. In Board of Education v. Freedom of Information
Commission, supra, 213 Conn. 216, the Board of Education met in
executive session on two occasions in 1987 in order to discuss candidates for
interim board membership. The board interviewed the candidates for these
positions in public session, discussed their suitability in executive session
and filled the vacancies in public session. The Supreme Court, focusing on the
meaning of the word "appointment," found that discussion of interim
appointments following a vacancy in municipal elected offices may be discussed
in executive session pursuant to General Statutes § 1-200(6)(A).
the present case, the procedure followed by the Board of Finance was lawful
and held pursuant to Board of Education v, Freedom of Information
Commission, supra, 213 Conn. 216. The FOIC properly concluded that the
executive session of the Board of Finance's discussion of the vacancy was an
appropriate purpose within the meaning of 1-200(6)(A) of General Statutes and Board
of Education v. Freedom of Information Commission, supra.
Clearly, elected members of the Board of Finance are public officials. The plaintiff by taking words out of context suggests distinctions that defy logic. By referring to "public officer or employee" in § 1-200(6)(A) concerning appointment, employment, performance, evaluation, health or dismissal, it is his claim that this defines public officer. He also claims that a single member of a Board of Finance is not a public officer because he accomplishes nothing unless joined by sufficient other jobs.
structure of Title 7 of the General Statutes concerning municipalities
the conclusion that a member of a Board of Finance is
a "public officer".
Members of the Board of Finance must be sworn to perform their duties. General Statutes § 3-341. The selectman is required to swear in after an election or appointment any town officers of whom an oath is required by law. General Statutes § 7-12. General Statutes § 7-l0la holds harmless any municipal officer while serving, whether elected or appointed, on any board, committee, council, agency or commission member from financial loss while acting in the discharge of his duties. General Statutes § 7-101a. Similarly, General Statutes § 7-103 concerning resignation addresses any elected or appointed town, city or borough officer. General Statutes § 7-103.
plaintiff's claim that a single member of a multi-member board is not a public
officer is also contradicted by a long line of Connecticut case law that a
single member of the Board of Education is a public officer. See Keegan v.
Thompson, 103 Conn. 418 (19253; Wallingford v. Board of Education,
152 Conn. 568, 573 (1965); Cahill v. Board of Education. 198 Conn. 229,
court follows the rule established by our Supreme Court in Board of
Education of the City of Danbury v. Freedom of Information Commission,
supra, 213 Conn. 216 and finds that discussion of interim appointments, to
fill a vacancy in an elected municipal office may be conducted in executive
Accordingly, the FOIC's decision is affirmed and the plaintiff's appeal is dismissed.