Final Decision FIC2011-681
In the Matter of a Complaint by
||Docket #FIC 2011-681|
Town of Wallingford,
October 10, 2012
The above-captioned matter was heard as a contested case on March 21, 2012, at which time the complainant and respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter dated December 16, 2011, and filed on December 19, 2011, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act at its December 14, 2011 meeting by:
(a) failing to take a roll call vote before going into executive session;
(b) making decisions and voting in executive session; and
(c) failing to reduce votes to writing and to make them available for public inspection.
At the hearing, the complainant withdrew his complaint with respect to paragraph 2(a), and therefore, such allegation is no longer at issue and will not be further addressed herein.
3. 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. The votes of each member of any such agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken.
4. Section 1-200(6), G.S., provides that “executive sessions” mean:
[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….
5. With respect to the complainant’s allegation in paragraph 2(b), above, the Commission has consistently ruled that action beyond discussion pursuant to §1-200(6), G.S., such as a vote, is not permissible in an executive session.
6. It is found that the respondent held a regular meeting on December 14, 2011.
7. It is found that the respondent voted to enter into, and conducted, an executive session at its December 14th meeting to “discuss personnel matters.”
8. The complainant maintains that the respondent acted while in executive session and authorized the increase of hours of two part-time employees to become full-time employees.
9. The respondent contends that during the executive session, the respondent addressed an operational matter concerning the need to increase the hours worked by two part-time employees and that two of the respondent’s commissioners were told to go talk to these employees and inquire as to whether they were willing to increase their hours.
10. It is further found that when the respondents came out of executive session, there was no further discussion or action taken on any matter, except to adjourn the December 14th meeting.
11. It is found that while in executive session the respondent authorized two commissioners to inquire of the two part-time employees whether they would be willing to increase their hours.
12. It is found that the respondent took action beyond discussion in executive session at its December 14th meeting, and that such action was tantamount to a vote on an issue before a public agency within the meaning of §1-225(a), G.S.
13. With respect to the complainant’s allegation in paragraph 2(c), above, it is found that the minutes do not reflect what action was taken while the respondent was in executive session.
14. It is therefore concluded that the respondent violated §1-225(a), G.S., by making decisions and voting in executive session; and by failing to reduce votes to writing and to make them available for public inspection.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the requirements of §1-
225(a), G.S., with respect to actions taken during executive sessions and the recording of actions and votes of its members.
2. The respondent shall forthwith amend the minutes for the December 14, 2011
meeting, to reflect the actions and votes taken at such meeting.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 10, 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:
15 Montowese Trail
Wallingford, CT 06492
Town of Wallingford
c/o Warren L. Holcomb, Esq.
Berchem, Moses & Devlin, P.C.
75 Borad Street
Milford, CT 06460
Cynthia A. Cannata
Acting Clerk of the Commission