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Final Decision FIC2014-833
In the Matter of a Complaint by
FINAL DECISION
Bradshaw Smith,
     Complainant
     against
Docket #FIC 2014-833
Craig Cook, Superintendent of Schools,
Windsor Public Schools; Ronald Eleveld,
Michaela Fissel, Darlene Klase, Leonard
Lockhart, Richard O’Reilly, Paul Panos,
Melissa Rizzo Homes, and Kenneth
Williams, Members, Board of Education,
Windsor Public Schools,
     Respondents
September 24, 2015

     The above-captioned matter was heard as a contested case on August 18, 2015, at which time the complainant and the respondents appeared 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.  By letter of complaint, dated and filed November 14, 2014, the complainant appealed to this Commission, alleging that an item on the agenda for the respondent board’s October 21, 2014 regular meeting was not specific enough to apprise the public of the business to be conducted, in violation of the Freedom of Information (“FOI”) Act.  The complainant also requested the imposition of a civil penalty.
     3.  Section 1-225(c), G.S., provides in relevant part that:
The agenda of the regular meetings of every public agency…shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer….
     4.  It is found that the agenda for the October 21, 2014 meeting stated, in relevant part, “Potential Executive Session to Review Attorney/Client Privileged Communication Regarding Personnel Matter” (capitalization in original).  At the hearing in this matter, the complainant alleged that such agenda item was insufficient. 
     5.  The Commission takes administrative notice of the minutes of the October 21, 2014 meeting of the respondent board, posted on the board’s webpage.  Based upon such minutes, it is found that, on October 21, 2014, the respondent board held a regular meeting and convened in executive session to discuss a “personnel matter.”  
     6.  It is well established that a meeting agenda must “fairly apprise the public of the action proposed,” and of the “matters to be taken up at the meeting in order to [permit the public] to properly prepare and be present to express their views.”  See Zoning Board of Appeals of the Town of Plainfield v. Freedom of Information Commission, Docket No. CV 99-047917-S, 2000 WL 765186 (superior court, judicial district of New Britain, May 3, 2000), reversed on other grounds, Zoning Board of Appeals of the Town of Plainfield v. Freedom of Information Commission, 66 Conn. App. 279 (2001).
     7.  This Commission has repeatedly held that in order for the public to be fairly apprised of the reason for an executive session, the public agency must give some indication of the specific topic to be addressed.  Descriptions such as “personnel,” “personnel matters,” “legal,” or even “the appointment, employment, performance, evaluation, health, dismissal of a public officer or employee,” are inadequate.  See, e.g., Richard L. Stone v. Board of Selectmen, Town of Cromwell, Docket #FIC 2010-738 (August 24, 2011) (agenda item “[e]xecutive session: [p]ersonnel,” did not fairly apprise the public of proposed matter to be discussed); Preston D. Schultz and the Citizens for Prudent Spending v. Board of Education, Woodstock Public Schools, Docket #FIC 2008-236 (February 25, 2009) (agenda item “discussion of attorney/client privilege [sic] documents and pending litigation,” did not fairly apprise the public); Bradshaw Smith v. Milo W. Peck, Jr., Member, Board of Education, Windsor Public Schools, Docket #FIC 2007-003 (August 8, 2007) (agenda item “employee personnel matters,” did not fairly apprise the public of the matter to be discussed in executive session); John Voket and the Newtown Bee v. Board of Education, Newtown Public Schools, Docket #FIC 2006-013 (October 11, 2006) (agenda item “executive session – personnel,” did not fairly apprise the public); Trenton Wright, Jr. v. First Selectman, Town of Windham, Docket #FIC 1990-048 (agenda item “executive session – personnel matters,” did not sufficiently state the reason for the executive session); and Robert Cox v. Ridgefield Board of Education, Docket #FIC 88-165 (January 25, 1989) (the agenda item listing executive session to “receive advice from legal counsel on a legal matter,” was insufficient).  
     8.  Based upon the foregoing, it is found that the agenda item in this case did not fairly apprise the public of the nature of the executive session.  It is found that, under the facts and circumstances of this case, the respondents should have more specifically identified on the agenda, and during the meeting, the nature of the “personnel matter” to be discussed. 
     9.  At the hearing in this matter, counsel for the respondents, while acknowledging that a personnel matter was discussed in executive session, and further acknowledging the well-established law, noted in paragraphs 5 and 6, above, argued that because such personnel matter also was the subject of an attorney-client privileged memorandum, which was discussed in the executive session, the respondents were not required to identify, on the agenda, the subject matter of the memorandum.  According to counsel, identifying the subject matter of the memorandum on the agenda would have destroyed the confidentiality to which that communication may be entitled, citing to the Commission’s decision in Marissa Lowthert  v. Chairman, Board of Education, Wilton Public Schools, Docket #FIC 2014-246 (March 11, 2015). 
     10. In Lowthert, the agenda item at issue stated:  “Discussion of Confidential Attorney-Client privileged memorandum -- proposed to be in executive session.”  The complainant in that case alleged that the agenda was insufficient because it failed to disclose the subject matter of the attorney-client privileged memorandum that was discussed in executive session.  The respondents in Lowthert offered evidence to support their claim that (a) the memorandum was exempt from disclosure by the attorney-client privilege; and (b) disclosure of the subject matter of the memorandum on the agenda would have revealed the substance of the confidential communication.  Based upon such evidence, the Commission concluded that the agenda item did not violate §1-225(c), G.S. 
     11. The present case is readily distinguishable from Lowthert, however, because, in the present case, the complainant did not allege that the board’s failure to identify on the agenda the subject matter of a privileged memorandum violated §1-225(c), G.S.  Moreover, unlike the Lowthert respondents, the respondents in this case offered no witnesses or evidence at the hearing to establish (a) the existence of a written memorandum from attorney to client, (b) that the memorandum was privileged, or (c) that disclosure of the subject matter of the memorandum on the agenda would have revealed the substance of the communication. 
     12. As found in paragraph 4, above, the purpose of the executive session was to discuss a personnel matter.  The fact that the respondents may have obtained written legal advice with regard to such personnel matter, which communication also could have been the basis for the executive session, does not eliminate the requirement that the agenda  identify, with more specificity, the “personnel matter,” that was the subject of the discussion in executive session. 
     13. Based upon the foregoing, it is concluded that the respondents violated §§1-225(c), G.S.
     14. The Commission declines to impose civil penalties as requested by the complainant.
     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 the requirements of §1-225(c), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 2015.

_______________________
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:
Bradshaw Smith
23 Ludlow Road
Windsor, CT  06095
Craig Cook, Superintendent of Schools, Windsor Public Schools;
Ronald Eleveld, Michaela Fissel, Darlene Klase, Leonard
Lockhart, Richard O’Reilly, Paul Panos, Melissa Rizzo Homes,
and Kenneth Williams, Members, Board of Education,
Windsor Public Schools
c/o Gary R. Brochu, Esq.
Shipman & Goodwin
One Constitution Plaza
Hartford, CT  06103
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-833/FD/cac/9/24/2015