#MiddleburyCT #FreedomOfInformation
By MARJORIE NEEDHAM
During meetings of various Middlebury boards and commissions, questions related to the Freedom of Information Act sometimes arise. Starting with this article, we will share information on these questions and the answers to them that we get from Russell Blair, the director of education and communications for the Connecticut Freedom of Information Commission.
Questions that arose this time were about what constitutes an illegal meeting and what detail is required when describing the topic of an executive session.
Question: If two members of the three-member Board of Selectmen discuss town business outside of a Board of Selectmen meeting, are those members having an illegal meeting, or is it illegal only if they vote on a town issue?
Answer: As we discussed, if two members of a three-member board of selectman are discussing board business, that constitutes a meeting under the FOIA, regardless of whether they take any votes or make any decisions. I will copy below the definition of a meeting from the FOIA, you will see that it includes “to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.” So even if they do not vote, if they discuss a matter that is within their purview, that constitutes a meeting. I realize that this can create logistical challenges, particularly for small towns with a three-member Board of Selectmen where two members creates a quorum, but these are the rules that we all have to live by.
(2) “Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multi-member public agency, and any communication by or to a quorum of a multi member public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. “Meeting” does not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.
Question: When an agenda lists an executive session and says the topic is “Personnel Matter,” is that an adequate description of what will be considered during the executive session?
Answer: Blair shared some citations on executive sessions and said he didn’t think personnel matters would be sufficient. He said possible wording for an executive session to discuss a board chairperson could be “Executive Session: Discussion of the Performance of the Board Chairperson” or to be even more specific if you wished: “Executive Session to Discuss Potential Dismissal of Board Chairperson.” Then he gave the following information on what the Commission has said on this issue:
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).
