Ansonia And Derby Not Always Following ‘Executive Session’ Rules

For this story, which I originally wanted to publish during ​“Sunshine Week,” I’m taking a look at executive session meetings in the cities of Ansonia and Derby.

Executive sessions are meetings that are closed to the public, but are perfectly legal under specific circumstances explained in state law.

In other words, it’s often the stuff your city hall or school district is NOT posting on Facebook.

It’s important to keep an eye on how local boards and commissions use executive sessions. A group that does not follow the rules can use executive sessions to hide things they don’t want the public to know, such as controversial topics involving employees. Or they could be using executive session for reasons of political strategy, as opposed to legal strategy.

I was expecting this to be a short column because I had assumed the vast majority of people were aware of the executive session rules. 

But I reviewed about 24 agendas — and found roughly eight that contained executive sessions that were questionable.

First a little bit about how these private discussions are supposed to take place …

THE RULES

According to state law, the decision to enter an executive session must be approved by a two-thirds vote of the entity trying to go into executive session.

The reason for going into executive session must be stated at the meeting.

Got it? OK, here’s some more: it’s is directly from a 2010 legislative report, and the most recent version of state law:

Executive sessions may be held to discuss:

1. Individual officers or employees (unless the officer or employee asks for the discussion to happen in public)

2. Strategies and negotiations about pending claims or pending litigation involving the agency or a member

3. Security matters

4. Real estate transactions

5. Any matter that would result in disclosing a public record that is exempt from disclosure described in subsection (b) of state law section 1 – 210.

OK, got it? I have to read it every time I see ​“executive session” published on a meeting agenda.

THE VALLEY INDY TEST

For this story, I looked at the published agendas of a few boards/commissions/committees in Ansonia and Derby to learn whether an executive session had been scheduled.

By the way, the purpose of a meeting agenda is simple: it lets John or Jane Q public know, in advance, about what his or her government is up to.

If the agenda called for an executive session, I looked at whether the reason for the executive session was listed on the agenda, and whether that reason seemed appropriate.

By appropriate I mean, ​‘Was the reason for the executive session one of the five reasons allowed under state law?’

My notes and conclusion below are open to interpretation, to some extent.

That’s because in the cases where I found something questionable (in my non-lawyer opinion), I did not file complaints with the state’s Freedom of Information Commission to get an official ruling. That’s why I didn’t assign ​“pass” or ​“fails” to the public bodies. 

Instead, if I suspected an open meeting issue, I labeled it ​“QUESTIONABLE,” and emailed lawyers and/or board members for more info.

Also, I’ve ​“judged” these executive sessions from, I hope, John Q Public’s point of view.

Sure, maybe a given agenda is technically proper under the FOI Act, but could the committee or commission do more to be ​“transparent?”

Oh, and I used emoticons to pass judgement.

Sunshine Week may be over for this year, but that doesn’t mean it’s time to quit trying to shine a light! Sunshine Week is all about the importance of government transparency. Show us how you celebrated Sunshine Week by adding #SunshineWeek to your posts and tagging us!

— Sunshine Week (@SunshineWeek) March 18, 2019

To keep this manageable, I only looked at agendas and meeting minutes from the first three months of this year, and I only concentrated on the Board of Aldermen, the Board of Apportionment and Taxation, the police commission, and the school board (though I accidentally stumbled upon a few building committees, as you’ll read).

I only used the Derby and Ansonia official city websites to read agendas and meeting minutes. I did not go in person to the town clerk’s office to look at these documents, because it’s 2019 and the Internet exists, even though the government is not mandated to use it to post agendas, which is dumb.

Finally, my intent is not to make anyone look bad. I know the people on these boards and commissions are volunteers. We’re all neighbors, and public service should be applauded.

And as a guy who gets criticized every other day for spelling errors, typos and/or bias, I understand the sting of public criticism. 

But rules are rules and the public there’s nothing more American than the public’s right to know.

Let’s proceed!

THE CITY OF ANSONIA

Ansonia Board of Aldermen

Jan. 8
Executive Session listed on agenda 
Notes: The agenda lists three lawsuits and a worker’s comp case to be discussed in executive session. The city named the person involved in the worker’s compensation issue, and noted the nature of each lawsuit.

The agenda made it very easy for any member of the public to find out more info. 

I’ll also note Ansonia also published a 49-page meeting agenda packet online, which is truly transparent (though no executive session stuff was mentioned in the packet).

They get a …

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Feb. 4
Executive Session scheduled for a ​‘special meeting’ (a meeting scheduled outside the board’s normal meeting schedule)
The agenda stated the legislators were meeting in private to discuss the school board’s lawsuit against them. Pending litigation, so …

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Feb. 12
Executive Session
A property damage claim with the person named, and a discussion of pending litigation (the school board funding lawsuit again). The legislators are allowed to talk about legal strategy without the public present.

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Feb. 26
Executive Session, special meeting 
Two pending litigation items listed with information on both, one lawsuit was school board versus the city again, so …

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March 4
Executive Session, special meeting 
Ansonia BOE v city

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March 12
Executive Session 

BOE lawsuit

Actual pending litigation that can be looked up in court.

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EXTRA CREDIT TO ANSONIA FOR PUTTING ALDERMEN AGENDA PACKETS ONLINE.

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Ansonia Board of Apportionment and Taxation

No executive sessions so far this year (again, as of March), according to agendas I looked at this week on the city’s website. 

As an aside, these BOAT agendas have little to no detail on what’s being discussed, especially compared to other tax boards in the Valley.

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Ansonia Police Building Commission AND Ansonia Police Commission

NOTE: I was not intending to include the Ansonia Police Building Commission. It is the panel supervising the construction of a new police department on Main Street.

However, I was looking for the Ansonia Police Commission meetings on the city’s website under ​“police” in a dropdown menu, and the website took me to Ansonia Police Building Commission instead of the Police Commission, which was confusing.

Eventually I realized that the agendas and minutes for the ​“police building commission” and the separate ​“police commission” are deposited into the same place on the city’s website.

Jan. 2
Police Commission 
I could not find the agenda for this meeting on the website, but the minutes for the meeting are posted.

The minutes state there was an executive session, but the minutes fail to state the reason for the executive session. 

The minutes note that once the commissioners returned to public session, they appointed an interim chief of police.

Based only on the information posted on the city’s website this executive session was …

QUESTIONABLE

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Jan. 16
Police Building Committee 
Executive Session noted on agenda, but no reason listed. 

However, the minutes note that there was no executive session held. 

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Feb. 20
Police Building Committee
Executive session noted on agenda, but no info on the reason. 

A suggestion: list ​“executive session: none” or don’t put executive session on the agenda if an executive session is not scheduled. I understand that government sometimes likes to leave options open, but using executive session as a placeholder on an agenda just in case is not transparent.

(FYI, Feb. 20 was canceled but Feb. 27 makeup meeting had same listing

Minutes show there was no executive session held.

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Feb. 6
Police Commission
Executive session 

The agenda listed the reason for the executive discussion was to discuss the ​“hiring process” to fill the chief of police vacancy.

Talking about a hiring process is not at all listed as one of the legitimate reasons to have a discussion without the public present.

Candidates for a job can be interviewed in executive session, but a job search ​“process?” But everything in government is a process, so I can’t understand how a process — especially when not talking about a specific, named individual — can be discussed behind closed doors?

To get the full meeting minutes for the Feb. 6 board of police commissioners, I clicked on the minutes for the Feb. 6 police building commission meeting. 

The minutes state the police commission went into executive session to ​“discuss the process” to select a permanent chief of police.

Based on the information available on the city’s website, that’s …

QUESTIONABLE

Explanation: I emailed John Marini, Ansonia’s corporation counsel, asking whether the Feb. 6 police commission executive session was proper.

Marini responded that the ​“hiring process” was justified under state law Section 210(b) (1) and (6) ​“as it would divulge confidential drafts and documents relative to the hiring process for a new police chief.”

Now, that being said, neither the agenda nor the minutes for the meeting show anything even close to that, which leaves John Q. Public in the dark.

Marini said he advised the police commission to be more specific.

“The executive sessions were proper, though I have just recently advised the Police Commission to be more specific with their agendas when stating the reason(s) for entering executive session,” he said.

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Feb. 6
Police Building Commission 
Executive Session listed on agenda

Reason for executive session: to ​“discuss floor plans for the new police building.” 

Floor plans are not listed as a reason under state law to close a meeting to the public.

This was a questionable executive session, without additional information. 

Yes, the FOI Act allows security matters to be discussed in private, but the agenda does not say that.

It says ​“floor plans for the police department.” 

And the meeting minutes from Feb. 6 indicate the location of police department offices were discussed both in public and private.

The minutes also do not specifically state whether an executive session was held, but notes the commissioners returned to regular session after some point.

QUESTIONABLE

Explanation: Marini said the executive session was justified under the security exemption.

“The floor plan session was justified under the general security matters provision. The discussion would have divulged information and details about the new police station that would compromise public safety if made public,” he wrote in an email.

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March 6
Police Commission 

The agenda listed an executive discussion to discuss a police officer’s employment status (the officer was named on the agenda), plus the discussion of a grievance, and more ​“hiring process” talk. 

Now, I realize I’m splitting hairs here, but the union grievance was referenced as a number. True transparency calls for a brief summation of the grievance or at least some additional details other than the year, a dash and a numeric.

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Ansonia School Board

Please note I only looked at regularly scheduled or special school board meetings, not subcommittees.

Jan. 9
Executive Session 

Behind closed doors the school board talked about an expulsion, conducted the superintendent’s employment review, and the super’s contract. 

All of those as OK under FOI.

: ) BUT …

This agenda is a little shaky from a common sense perspective, because meeting minutes show the school board appointed a new superintendent at the end of the meeting.

Seems like the possibility of hiring a new school superintendent would be something to mention on an agenda for the good of the people, no?

Again, I’m going on what’s available on the school district’s website, so perhaps there’s a perfectly reasonable explanation. I emailed Superintendent Carol Merlone and a school board lawyer in March but neither responded with an explanation.

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Feb. 6
Special meeting 

The agenda for Ansonia Board of Education did NOT call for an executive session, even though they were to take action on their funding lawsuit against the Board of Aldermen.

That’s true transparency! 

Whoops, hold on.

The meeting minutes show the school board did, in fact, meet in executive session to talk about the lawsuit with the city, which is perfectly acceptable under state law.

I’m taking a smiley face back.

By the way, the law does NOT say you cannot talk about a lawsuit in public. Elected officials can talk about lawsuits all day long in public. The law says pending litigation is something that is allowed to be talked about behind closed doors. It’s not smart to reveal legal strategies to your opposition, of course.

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THE CITY OF DERBY

Board of Aldermen/Alderwomen (regular meetings only)

Unfortunately, Derby’s website isn’t set up (as of March 2019) to archive agendas online next to meeting minutes, so you have to work a little harder to find the agendas by looking through the calendar on the city’s home page.

Jan. 10
Executive Session

Reason: to discuss property acquisition with Regional Water Authority. Yup, a legit reason to go into executive session. Derby takes an extra step by putting on the agenda whether any action (such as a vote) will be taken after the private talks.

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Feb. 14

Executive Session

According to the agenda Turco Golf ​“pending claim.” 

There’s no lawsuit pending, but they are dealing with insurance claims connected to the company who allegedly didn’t do enough to prevent flooding from the Derby multi-purpose project currently underway.

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AS AN ASIDE … The Derby Athletic Complex Building Committee had an executive session scheduled for its March 12 meeting.

The committee is supervising a state-grant funded project that includes the construction of a new multi-purpose field between Hawthorne Avenue and Chatfield street.

The reason listed for the executive session: to ​“review project status” connected to two contractors working on the job.

You can’t talk about a project status behind closed doors.

That reason is not among the open meeting exemptions listed in state law governing executive sessions, because by that standard anything under the sun can be discussed in private, so …

QUESTIONABLE

Explanations: The agenda was pointed out to Derby corporation counsel Vin Marino prior to the meeting. Marino said in an email that he would review the matter, and noted he had been invited to the meeting.

Keith McLiverty, chairman of the committee (and the city treasurer), reached out to The Valley Indy and said the process would be corrected if need be. He indicated the purpose of the executive session was actually identical to the Aldermen’s Turco-related executive session: pending insurance claims based on past flooding from the construction site (which is allowed under state law).

So, like Ansonia, it seems to be a matter of just clearly stating the reason for the executive session and making sure it fits one of the five reasons state in the law. And, of course, sticking to the topic once you go behind closed doors, because it’s illegal to state a reason and then start blabbing about other things.

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OK, back to Derby Board of Aldermen

March 14
Executive Session

Reasons cited: Regional Water Authority Water Tank contract and negotiations (allowed) fuel cell company contract (allowed)

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Derby Police Commission

The Derby Police Commission is a civilian oversight board. Its members are appointed.

I looked at the agendas for meetings held in February and March. Both had executive sessions scheduled to talk about the following:

Feb. 11 and March 11
Monthly personnel updates to commission (QUESTIONABLE)
Family medical leave (Sure)
Worker’s compensation injuries/illness briefs (I get it, but see the info below)
Covert assignments (Sure)

The state’s Freedom of Information Commission has repeatedly ruled that using ​“personnel” as a reason for an executive session is improper.

This is from a 2014 commission decision, with emphasis added: 

“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.

During two Valley Indy podcast appearances, Tom Hennick, the Connecticut Freedom of Information Commission’s public education officer, twice said ​“personnel” is not specific enough to trigger an executive session.

I emailed police commission chairman Sam Pollastro, the city attorney, and the police chief seeking clarification.

Explanation Marino said he briefed the commission on executive session rules. A more recent agenda shows this item removed from executive session discussion.

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Derby Board of Apportionment and Taxation

There were no executive sessions scheduled for either the Jan. 22 or Feb. 19, but look at how information is published on this agenda!

(Fast forward to May 14: Derby BOAT had scheduled a wildly improper executive session (IMO) to discuss ​“legal aspects of education funding,” but didn’t go through with it.) 

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Derby Board of Education

Jan. 8
Executive Session

The meeting agenda listed two items to be discussed during an executive session: 

To review an appointment list 
To review a memorandum of understanding

QUESTIONABLE.

First, it should be noted that Derby Public Schools are extremely responsive, as is the school board. 

The chairman, Jim Gildea, not only Tweets every regular meeting agenda — he tags The Valley Indy so more people see the agenda. Can’t beat that for openness. 

But what was the nature of the memorandum, and with whom?

Regarding the minutes show the board then approved an agreement with the district’s paraprofessional union. So, a better way to advertise that executive session on the meeting’s agenda would have been to note the memo involved the paraprofessional union.

Regarding the ​“appointment list,” Gildea said it’s a list of new hires in the school district. The appointments become official after the board returns to public session and votes on the list.

“I believe the thought was that until they are hired by the board, they deserve some level of confidentiality as they may be leaving other districts and they are still in the hiring process,” Gildea said.

To be perfectly honest, the appointment list confuses me. I’d argue that the names should be put on the agenda for the greater good. What if the school board is only hiring family members and friend, Charlie Manson, etc.?

Then again, I’d have to rely on someone with more expertise than me — such as a lawyer.

Gildea reached out to the school board’s lawyer to ensure executive sessions are properly noticed and held.

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Feb 5.
Committee of the Whole

An executive session was held, in part, to discuss a personnel matter.

The state’s Freedom of Information Commission has said repeatedly that’s not enough information. At the least, the school board has to list whether it’s a teacher, custodian, etc. To be truly transparent they’d include more description — a one-line narrative about the nature of the talk, perhaps.

QUESTIONABLE

Explanation​“I hear what you are saying about personnel matter – we will review with counsel and ensure we are always comply with the FOI Act,” Gildea said. ​“I appreciate you reaching out, a good discussion.”