The above-captioned matter was heard as a contested case on September 27, 2011, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2011-240, Jon Norris v. George Slaiby and H.W. Davis, as Members, Local Emergency Planning Commission, Town of Southbury; and Local Emergency Planning Commission, Town of Southbury.

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 May 6, 2011 and filed May 11, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act, during its May 5, 2011 regular meeting, by:

     (a)   improperly discussing in executive session the eligibility of the first selectman to participate in the Police Pension Plan; and

     (b)   improperly inviting William Sarosky, Jennifer Naylor and Noreen Thompson into the executive session.

     In his complaint, the complainant requested that a civil penalty be assessed against the respondents.

3.  It is found that, on May 5, 2011, the respondent Board of Selectmen (Board) held a regular meeting, and that the agenda for such meeting listed “Pension Plan” under “New Business.” 

4.  It is found that, at the time of the May 5th meeting, the contract between the police union and the town was in the process of being re-negotiated.  It is found that the pension plan, and more specifically, who qualified as a plan participant, was part of the contract negotiations, and also was the subject of the alleged executive session.

5.  It is found that prior to the May 5th meeting, the first selectmen received advice from counsel that the discussions pertaining to the pension plan should be held in executive session because they pertained to negotiations with respect to collective bargaining. 

6.  It is found that, based on such advice, the first selectman, during the May 5th meeting, suggested that the discussions concerning the pension plan be held in executive session.  It is found that a motion was made, and seconded to go into executive session to discuss the pension plan.  It is found that the motion passed by a vote of 3 to 1, and that the first selectman then recused himself from the discussions.  It is found that Mr. Sarosky, Ms. Naylor and Ms. Thompson, who were not members of the Board, were present during the executive session.

7.  Section 1-225(a), G.S., provides, in relevant part:

     [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. 

8.  Section 1-200(2), G.S., in turn, defines “meeting” as:

     any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember 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: … strategy or negotiations with respect to collective bargaining….

9.  It is found that, under the facts and circumstances of this case, the discussions regarding the eligibility of certain individuals to participate in the police pension plan, described in paragraph 4, above, constituted “strategy and negotiations with respect to collective bargaining,” within the meaning of §1-200(2), G.S.

10.  Although the respondents argued, at the hearing in this matter, that they properly discussed the pension plan in executive session, because such discussions related to negotiations with respect to collective bargaining, it is concluded that the closed session was not an executive session, as that term is used in §§1-225(a) and 1-200(6), G.S.   Rather, it is concluded that the discussions at issue took place outside the FOI Act, in that the gathering by the respondents to negotiate with respect to collective bargaining is not considered a meeting, as that term is defined in §1-200(2), G.S.

11.  Accordingly, it is further concluded that the respondents did not violate the FOI Act as alleged in paragraph 2(a) or 2(b), above.

12.  Based on the foregoing, the Commission declines to consider the imposition of civil penalties in this case.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 1.  The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 8, 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:

Jon Norris
145 Hornet Nest Road
Southbury, CT  06488

Board of Selectmen, Town of Southbury; and
Town of Southbury
c/o Tara L. Shaw, Esq.
Secor, Cassidy & McPartland, PC
41 Church Street
P.O. Box 2818
Waterbury, CT  06723

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission