Final Decision FIC2013-026
In the Matter of a Complaint by
Mary Beth Litrico,
||Docket #FIC 2013-026|
President, Eighth Utilities District, Town
of Manchester; and Eighth Utilities
District, Town of Manchester,
September 25, 2013
The above-captioned matter was heard as a contested case on June 4, 2013, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.
2. By letter filed January 17, 2013, the complainant appealed to this Commission, alleging that the respondents’ board of directors violated the Freedom of Information (“FOI”) Act by convening in executive session at their special meeting of December 26, 2012, to discuss the complainant’s job performance without providing her the opportunity to require that the discussion be held in an open meeting. In addition, the complainant alleged that the respondents “on numerous occasions held Executive Sessions to discuss Job Descriptions.”
3. By letter filed January 22, 2013, the complainant also alleged that the respondents held an improper executive session at their meeting of December 3, 2012, to discuss a “job description” and that she recently learned that such discussion concerned her performance as clerk of the respondents’ board of directors.
4. With respect to the meeting of December 3, 2012, described in paragraph 3, above, §1-206(b)(1), G.S., provides, in relevant part:
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.
5. It is found that the December 3, 2012 meeting was neither unnoticed nor secret.
6. It is found that the notice of appeal in this matter was filed more than 30 days after the December 3, 2012 executive session.
7. It is concluded that the Commission lacks subject matter jurisdiction to address alleged violations occurring at the December 3, 2012 meeting.
8. With respect to the complainant’s allegation, described in paragraph 2, above, that the respondents “on numerous occasions” improperly discussed “job descriptions” in executive session, it is found that the complainant’s appeal lacked specific dates of alleged violations.
9. It is concluded, therefore, that this portion of the complainant’s appeal also fails to satisfy the threshold requirement of §1-206(b)(1), G.S., requiring a notice of appeal to be filed within thirty days of the alleged violation.
10. With respect to the balance of the complainant’s appeal, described in paragraph 2, above, §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…”
11. Section 1-200(6), G.S., provides:
“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 ….
12. It is found that the notice for the December 26, 2012 meeting listed “executive session on Job Performance – Elected Official.”
13. It is found that the elected official discussed at the December 26, 2012 executive session was the tax collector, not the complainant.
14. It is found that the respondents did not discuss the complainant’s job performance in executive session on December 26, 2012.
15. It is found that the respondents did discuss the complainant’s job performance at executive sessions convened during their meetings of November 5, 2012 and January 22, 2013, and that on both occasions they provided the complainant with the opportunity to have such discussions in an open meeting.
16. It is concluded that the respondents did not violate §1-200(6)(A), G.S., of the FOI Act.
17. At the hearing in this matter, the complainant observed that her letters to the Commission would not have been necessary had the District’s agendas been more precise in identifying specific topics to be discussed in the executive sessions.
18. The 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. See, Carlson v. Board of Education, East Granby Public Schools, Docket #FIC2007-388 (March 12, 2008) (“personnel matters” violated FOIA notice requirement for executive session); Trenton E. Wright, Jr. v. First Selectman, Town of Windham, Docket #FIC 1990-048 ("executive session - personnel matters" too vague); Boman v. Connecticut Resources Recovery Authority, Docket #FIC1990-24 (September 26, 1990) (“personnel matters” on agenda too vague to communicate to public what topics would be discussed).
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 September 25, 2013.
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:
Mary Beth Litrico
45 Brookview Circle
Manchester, CT 06040
President, Eighth Utilities District, Town of Manchester;
and Eighth Utilities District, Town of Manchester
c/o John D. LaBelle, Jr., Esq.
LaBelle, LaBelle & Naab, P.C.
243 Main Street
Manchester, CT 06042
Cynthia A. Cannata
Acting Clerk of the Commission