The above-captioned matter was heard as a contested case on January 19, 2012, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  By agreement of the parties, the case-caption has been amended to eliminate the City of Stamford as a respondent in this matter.

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 June 2, 2011 and filed June 6, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by convening in executive session for an improper purpose, during their May 5, 2011 special meeting.  By letter dated November 30, 2011 and filed December 2, 2011, the complainant filed an amended complaint, informing the Commission that “in the interim, the [ethics] case [against the complainant] has been dismissed,” and requesting the following remedies:  an order declaring the votes of the respondents taken during the meeting null and void; an order that the respondents pay a civil fine and attorney’s fees; and an order requiring the respondents to attend an FOI workshop.

3.  It is found that, on September 17, 2010, after an investigation, the respondents found probable cause that the complainant violated the city Code of Ethics by interfering with the disciplinary process of a city employee.

4.  It is found that, on May 5, 2011, the respondents held a “special meeting and public hearing,” (“May 5 meeting”) and that the agenda for such meeting and hearing stated, in relevant part: 

  Agenda – Public Hearing

1.  Public Hearings with respect to MICHAEL A. SCACCO V. SALVATORE GABRIELE, Ethics Complaint dated May 20, 2010.

  Agenda – Special Meeting

1.  Discussion of scheduling issues, including dates for future hearings in the Scacco v. Gabriele matter.

 ……

5.  It is found that, during the public hearing portion of the May 5 meeting, the respondents discussed, and heard oral argument from the complainant’s attorney on, a written motion by the complainant, dated April 27, 2011 (“motion”), that the respondents limit the scope of the hearing to evidence of events and actions that took place prior to January 5, 2010.¹  

6.  It is found that, at the conclusion of such discussion and argument, the respondents voted, over the objection of the complainant’s attorney, to go into executive session “for the purpose of receiving advice from their attorney.”  It is found that, in response to the objection, the respondent chairman stated that there would be no “deliberations” during the executive session, but rather, the sole purpose of the executive session was to receive advice from counsel.  It is found that the respondents subsequently returned to public session and voted unanimously to deny the motion.

7.  At the hearing in this matter, the respondents argued that the executive session was proper because the motion constituted a “pending claim” or “pending litigation” within the meaning of §§1-200(8) and (9), G.S., respectively. 

8.  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….”  

9.  Section 1-200(6), G.S., provides, in relevant part:

     “Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes: .... (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 …

10.  “Pending claim” is defined in §1-200(8), G.S., as “a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.” 

11.  “Pending litigation” is defined in §1-200(9), G.S., as “(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of action to enforce or implement legal relief or a legal right.”

12.  It is found that the motion is not a “pending claim,” because it does not “set forth a demand for legal relief…stating the intention to institute an action in an appropriate forum if such relief…is not granted by the agency,” nor does it “assert[] a legal right stating the intention to institute an action in an appropriate forum if such…right is not granted by the agency.”

13.  It is found that the motion is not “pending litigation” because it does not “set forth a demand for legal relief…stating the intention to institute an action before a court if such relief…is not granted by the agency,” nor does it “assert[] a legal right stating the intention to institute an action before a court if such…right is not granted by the agency,” within the meaning of §1-200(9)(A), G.S.  It is further found that the motion is not the service of a complaint against the agency, within the meaning of §1-200(9)(B), G.S.  In addition, it is found that the motion does not fall within the definition of “pending litigation” in §1-200(9)(C), G.S., because it was merely a request to limit evidence, and the respondents’ consideration thereof, and therefore cannot reasonably be characterized as “consideration of action to enforce or implement legal relief or a legal right.” 

14.  However, at the hearing in this matter, the respondents argued that an April 4, 2011 memorandum from Karen Murphy, a member of the public, to Kathleen Murphy, a member of the board of finance (April 4 letter); an April 13, 2011 letter from Randall Skigen, President of the Board of Representatives to Michael Larobina, Director of the Legal Affairs Office; and an April 15, 2011 letter from Attorney Larobina to Mr. Skigen, provided a “backdrop” to the motion, which justified the executive session under the provision for discussion of strategy and negotiations with respect to pending claims or pending litigation.

15.  It is found that the April 4 letter, described in paragraph 14, above, in essence, suggests that the respondent board lacked authority to proceed against the complainant.  It is found that, in the April 13 letter, Mr. Skigen describes the reasons why he believes Ms. Murphy’s suggestion is incorrect and requests Attorney Larobina’s opinion on the matter.  It is found that the April 15 letter is Attorney Larobina’s response, in which he states that he agrees that Ms. Murphy’s suggestion is incorrect.  The respondent chairman testified, at the hearing in this matter, that, at the time of the May 5 meeting, he was aware of such letters, and in their brief, the respondents argued that “in order to seek legal advice with regard to the [motion] and the jurisdictional challenge made known to him as a result of the April 4 memorandum and the April 13 and April 15 responses, Chairman Young …sought the advice of counsel…[in] Executive Session.”  Respondents Brief at 6.

16.  It is found that the respondents did not discuss the letters, described in paragraphs 14 and 15, above, during the May 5 meeting, and they are not mentioned on the agenda for such meeting. 

17.  It is found that the respondent chairman’s knowledge of the letters, described in paragraphs 14 and 15 above, do not transform the motion into a “pending claim” or “pending litigation” under §§1-200(8) and 1-200(9), G.S., respectively. 

18.  Accordingly, it is concluded that the respondents failed to prove that they met in executive session for the purpose of discussing strategy and negotiations with respect to pending claims or pending litigation, pursuant to §1-200(6)(B), G.S.

19.  Section 1-231(b), G.S., provides that:

     An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200. 

20.  Section 1-231(b), G.S., specifically precludes a multimember public agency from convening in executive session to receive oral communications that would otherwise be privileged by the attorney-client relationship unless the executive session is for one of the five explicitly permitted purposes found in subdivision (6) of section 1-200, G.S. See, e.g., State of Connecticut Citizen’s Ethics Advisory Board v. Freedom of Information Commision, Superior Court, Judicial District of New Britain, Docket No. CV-106007661 (July 15, 2011, Cohn, J); Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, Superior Court, Judicial District of New Britain, Docket No. CV 106003500 (June 24, 2011, Owens, JTR); Board of Public Safety, City of Torrington v. Freedom of Information Commission, Superior Court, Judicial District of New Britain, Docket No. CV 010506448 (November 20, 2001, Owens, J.).  

20. It is found that the respondents went into executive session for the purpose of receiving oral advice regarding the motion, a purpose not permitted under §1-231(b), G.S.   See The Eisler Family Trust v. Zoning Board of Appeals, Town of Norfolk, Docket #FIC 2006-305 (May 23, 2007).

21.  Accordingly, it is concluded that the respondents violated §1-225(a), G.S, as alleged in the complaint.
 
22.  With regard to the complainant’s request for remedies, the Commission declines to order the respondents’ actions null and void, in view of the fact that the case against the complainant has been dismissed.  The Commission further declines to issue civil penalties.

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 provisions of §§1-225(a) and 1-231(b), G.S.

 2.  Forthwith, the respondents shall create minutes of the May 5 executive session, to include a detailed account of the discussions that took place, and a description of who was in attendance, and further, shall forthwith post such minutes with the town clerk and provide a copy, free of charge, to the complainant.

 3.  The respondents shall, within 30 days of the date of the Final Decision, contact the Commission to set up a training session for all members of the respondent board.

Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 2012.

__________________________
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:

Salvatore Gabriele
c/o Joseph Sargent, Esq.
1129 Post Road
Second Floor
Fairfield, CT  06824

Daniel Young, Chairman, Board of Ethics,
City of Stamford; Sarah Summons and
Paul Steed, as Members, Board of Ethics,
City of Stamford; and Board of Ethics,
City of Stamford,
c/o Arthur C. Laske, III, Esq.
Laske Law Firm, LLC
1261 Post Road
Fairfield, CT  06824

Courtesy Copy:  Burt Rosenberg, Esq
                           Assistant Corporation Counsel
                           Office of Legal Affairs
                           P.O. Box 10152
                           Stamford, CT  06904

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission