Final Decision FIC2015-050
In the Matter of a Complaint by
||Docket #FIC 2015-050|
Board of Selectmen,
Town of Suffield; and
Town of Suffield,
October 14, 2015
The above-captioned matter was heard as a contested case on July 6, 2015, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
1. The respondents are public agencies within the meaning of §1-200(1), G.S.
2. By letter dated January 19, 2015 and filed January 20, 2015, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOI Act”) in the following ways:
a. By amending the Board of Selectmen’s January 7, 2015 Board of Selectmen’s regular meeting agenda by way of a motion without sufficiently describing the action item being added to the agenda;
b. By moving the Board of Selectman’s January 7, 2015 regular meeting into an executive session without stating the purpose of the executive session;
c. By ignoring the request of a prospective selectman to have his candidacy discussed as part of the open meeting, rather than in executive session; and
d. By failing to post the January 7, 2015 Board of Selectmen’s meeting minutes in a timely manner.
3. Section 1-200(2), G.S., provides, in relevant part, as follows:
“Meeting” means any hearing or other proceeding of a public agency, [and] any convening or assembly of a quorum of a multimember public agency . . . to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. . . .
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, in relevant part, 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, health or dismissal of a public officer or employee, provided that such individual may require that the discussion be held at an open meeting. . . .
6. Section 1-225(f), G.S., provides, in relevant part, as follows:
A public agency may hold an executive session as defined in subdivision (6) of section 1-200, 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. . . .
7. Section 1-225(c), G.S., provides, in relevant part, as follows:
The agenda of the regular meeting of every public agency . . . shall be available to the public and shall be filed, not less than twenty-four hours before the meeting to which they refer. . . . Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.
8. At the start of the contested case hearing, the complainant indicated that he wished to withdraw the allegations contained in paragraph 2.d, above. Accordingly, the Commission will not address these allegations.
9. With regard to the allegations in paragraphs 2.a and 2.b, above, regarding two motions that were made at one of the Board of Selectman’s regular meetings, it is found that, in December 2014, a member of the Suffield Board of Selectmen took a position as the Suffield Interim Superintendent of Schools. Accordingly, the Board of Selectmen found itself with a vacant selectman’s position that needed to be filled. It is found that, prior to January 7, 2015, the Board of Selectmen received applications from, and/or nominations for, two individuals.
10. It is found that the Board of Selectmen held a regular meeting on January 7, 2015 and that one of the action items on the agenda was “Selectman’s Update: Open Positions.”
11. It is found that, at the start of the January 7, 2015 meeting, the First Selectman made introductory remarks, which included the fact that the Board of Selectmen would be adding an executive session to that evening’s meeting agenda in order “to discuss what we heard from any and all parties” interested in the open selectman’s position. It is found that, a short time after the First Selectman’s introductory remarks, one of the other Selectman made the following motion to amend the agenda: “Move to amend the agenda to add an Executive Session.” It is found that the Selectman’s motion was seconded, and approved unanimously.
12. It is found that both of the candidates for the selectman’s position were present at the January 7, 2015 meeting. It is found that the respondents provided the candidates with an opportunity to introduce themselves at the meeting, and address the Board of Selectmen and the public.
13. It is found that, shortly after the candidates introduced themselves, the Selectman who had moved to amend the agenda made a motion to move the meeting into executive session. It is found that the Selectman’s motion did not include a statement of the purpose; rather, the motion was simply, “move to enter executive session.” It is found that the Selectman’s motion was seconded, and approved unanimously.
14. The complainant takes issue with both of the Selectman’s motions because neither motion included an express statement of purpose. See ¶¶ 11, 13, above.
15. This Commission has repeatedly stated that in order for the public to be fairly apprised of the business to be transacted during an executive session, the public agency must give some indication of the specific topic to be addressed, prior to convening such session. Therefore, descriptions such as “personnel,” “personnel matters,” “legal” or even “the appointment, employment, performance, evaluation, health, dismissal of a public officer or employee” are inadequate and do not state the reason for convening in executive session, within the meaning of §1-225(f), G. S. See Kate King and the Stamford Advocate v. Water Pollution Control Authority, City of Stamford, et al., Docket #FIC 2012-502 (May 8, 2013).
16. However, it is found that even the complainant conceded in his complaint that it was abundantly clear why the Selectman was moving the meeting into executive session: “When the Board entered the Executive Session they did not indicate the reason for the session, though it was obvious from the earlier comments that it had to do with the appointment to be made.” It is found that the complainant’s mention of “earlier comments” is a reference to the First Selectman’s introductory remarks. See ¶ 11, above. Accordingly, it is necessarily found that it was also abundantly clear why the Selectman moved to amend the agenda to add an executive session to it, as this motion occurred closer in time to the First Selectman’s introductory remarks than did the motion to move the meeting into executive session.
17. In this case, it is found that the respondents did not expressly state the purpose of the motions at the time the motions were made. However, it is found that these failures are, at best, technical oversights, not rising to the level of a violation of the FOI Act. This determination is bolstered by the fact that the respondents’ failure to state the purpose behind the motions did not impede the public’s ability to meaningfully attend the January 7, 2015 meeting; it was readily understood by those in attendance that the purpose of both motions related back to the First Selectman’s introductory remarks concerning the two prospective candidates.
18. Finally, with regard to allegations in paragraph 2.c, above, concerning one of the candidates’ request to be discussed as part of the open meeting, it is found that, as one of the candidates introduced himself at the January 7, 2015 meeting, he stated that he believed in transparent government and that he wanted his candidacy to be discussed as part of the open, public meeting. It is found that, subsequent to the candidate requesting to be discussed as part of the open meeting, the Board of Selectman moved the meeting into an executive session. It is found that the executive session lasted approximately eleven minutes.
19. It is found that the Board of Selectmen did not discuss the candidate who had requested to have his candidacy discussed as part of the open meeting, during the executive session; rather, they only discussed the other candidate in executive session. It is further found that, upon the conclusion of the executive session, the Board of Selectmen reconvened in the meeting in public and voted to select one of the candidates for the vacant position.
20. It is therefore concluded that the respondents did not violate the FOI Act, as alleged in the complaint.
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 October 14, 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:
489 Warnertown Road
P.O. Box J
West Suffield, CT 06093
Board of Selectmen, Town of Suffield; and
Town of Suffield
c/o Charles T. Alfano, Jr., Esq.
Alfano & Flynn, LLC
53 Mountain Road
Suffield, CT 06078
Cynthia A. Cannata
Acting Clerk of the Commission