Final Decision FIC2013-384
In the Matter of a Complaint by
||Docket #FIC 2013-384|
Chairman, Board of Education,
Norwalk Public Schools; and
Board of Education, Norwalk
April 9, 2014
The above-captioned matter was heard as a contested case on January 15, 2014, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
Prior to the contested case hearing, by motion dated December 10, 2013 and filed on December 13, 2013, the respondents moved to dismiss the complainant. The respondents contended that the allegations in the complaint, when read in a light most favorable to the complainant, fail to state a violation of the Freedom of Information (“FOI”) Act.
On January 12, 2014, the complainant filed an objection to the motion to dismiss, contending that he had alleged a violation of the FOI Act.
By order dated January 13, 2014, the hearing officer denied the motion to dismiss and stated that an evidentiary hearing would take place on January 15, 2014.
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 May 9, 2013 and filed May 16, 2013, the complainant appealed to the Commission, alleging that the respondents violated the FOI Act in the following ways:
a. By convening in an executive session on April 2, 2013 to discuss a document that had not been made available to the public, and thereby prevent the public from commenting on said document; and
b. By convening in an executive session on May 7, 2013 to discuss contract negotiations, coming out of the executive session and voting in favor of accepting certain contracts without first providing copies of the contracts to the public.
3. Section 1-200(2), G.S., provides, in relevant part, as follows:
“Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. “Meeting” does not include: . . . strategy or negotiations with respect to collective bargaining. . . . (Emphasis supplied).
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. . . .”
5. Section 1-200(6), G.S., provides as follows:
“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; (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member's conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (C) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by the state or a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would adversely impact the price of such site, lease, sale, purchase or construction until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (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.
6. Section 1-206(b)(1), G.S., provides, in relevant part, as follows:
(b)(1) 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 not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held.
7. With regard to the allegations described in paragraph 2.a, above, it is found that the Board of Education held a regular meeting on April 2, 2013.
8. It is found that the April 2, 2013 meeting was properly noticed. It is further found that the complainant did not allege in his complaint, nor contend at the contested case hearing, that the April 2, 2013 meeting was, in any way, a secret meeting.
9. It is therefore found that, pursuant to §1-206(b)(1), G.S., any claim of violation concerning April 2, 2013 meeting would have had to have been filed with the Commission within thirty days of such meeting.
10. Because the complaint in this case was not filed within thirty days of the April 2, 2013 meeting, it is concluded that the Commission is without jurisdiction to consider the allegations contained in paragraph 2.a, above.
11. With regard to the allegations described in paragraph 2.b, above, it is found that the Board of Education held a special meeting on April 23, 2013.
12. It is found that, at the April 23, 2013 meeting, the Board of Education reported on the status of two contracts subject to collective bargaining. It is further found that the Board announced that the negotiations with regard to the Nurses’ contract and with regard to the Custodians’ contract were likely to conclude by May 7, 2013.
13. It is found that the Board of Education held a regular meeting on May 7, 2013.
14. It is found that an item of business on the May 7, 2013 agenda was “discussion and possible action on collective bargaining.” It is further found that the agenda indicated that the Board of Education anticipated moving the meeting into an executive session for a discussion concerning this item of business.
15. It is found that the Board of Education moved into executive session at the May 7, 2013 meeting to discuss the status of the collective bargaining with regard to the Nurses’ and the Custodians’ contracts.
16. It is found that the list of topics appropriate for an executive session discussion does not include “strategy and negotiations with respect to collective bargaining.” However, §1-200(2), G.S., provides that a discussion of strategy or negotiation with respect to collective bargaining is not considered a public meeting. It is found that the Board of Education mislabeled its discussion concerning the status of collective bargaining by calling it an executive session, when it should have simply deemed such discussion a non-meeting, not placed the discussion concerning such this item on the agenda, and conducted the discussion accordingly.
17. It is further found that the Board of Education voted to approve the Nurses’ contract and the Custodians’ contract in the public portion of the May 7, 2013 meeting.
18. It is further found that, while the Board of Education voted to approve the contracts in the public portion of the May 7, 2013 meeting, there was no final written versions of the contracts at such time. In this regard, it is found that, during the May 7, 2013 meeting, the Board of Education was working with hard copies of the previous year’s contracts and was modifying certain aspects of those contacts in order to finalize new contracts, which would run through 2016. It is found that it was not until after the May 7, 2013 meeting that the previous year’s contacts were updated with the provisions agreed upon during the May 7, 2013 meeting, and written contracts memorializing the new terms were committed to writing.
19. It is therefore found that, at the time of the May 7, 2013 meeting, there were no hardcopy versions of the new contracts to provide to the public.
20. The complainant contends that the Board of Education should not be permitted to work off of the previous year’s contacts and vote to approve the marked-up documents as the succeeding year’s contacts. Rather, the complainant contends that the Board should be required to bring finalized versions of the new contracts to the public meeting, hand them out to the public, and permit the public to comment on the new provisions before any voting takes place.
21. The Commission notes that, while meetings of a public agency are required to be open to the public, the FOI Act does not require a public agency to permit members of the public to speak or comment at its meetings. Furthermore, the FOI Act does not obligate a public agency to create records; it only obligates it to provide access to those records which it in fact has created and retained. See §1-200(5), G.S. (“Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency. . . .).
22. Based on the foregoing, it is concluded that the respondents did not violate any provision of the FOI Act.
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 April 9, 2014.
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:
P.O. Box 1111
Norwalk, CT 06856
Chairman, Board of Education, Norwalk Public Schools;
and Board of Education, Norwalk Public Schools
c/o Jeffry Spahr, Esq.
Office of Corporation Counsel
125 East Avenue
P.O. Box 798
Norwalk, CT 06856-0798
Cynthia A. Cannata
Acting Clerk of the Commission