Crandle v. Connecticut State Employees Retirement Commission

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CATHERINE CRANDLE ET AL. v. CONNECTICUT
STATE EMPLOYEES RETIREMENT
COMMISSION
(SC 20532)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiffs, C and R, former state employees who are members of Tier
II and Tier IIA, respectively, of the State Employees Retirement System
(SERS), appealed to the trial court from the ruling of the defendant,
the State Employees Retirement Commission. C’s last day of paid state
employment was in October, 2012, and R’s last day of paid state employ-
ment was in October, 2015. Thereafter, C and R each submitted an
application for disability retirement benefits to the Retirement Services
Division, which received R’s application in March, 2016, and C’s applica-
tion in April, 2016. The Medical Examining Board for Disability Retire-
ment granted the plaintiffs’ applications, and payment of their benefits
commenced on the first day of the month following the Retirement
Services Division’s receipt of their respective applications. Accordingly,
R’s benefits became payable on April 1, 2016, and C’s benefits became
payable on May 1, 2016. The plaintiffs subsequently filed with the com-
mission a petition for a declaratory ruling, claiming that, under the
State Employees Retirement Act (§ 5-152 et seq.), payment of disability
retirement benefits commences on the day after an employee’s last day
of paid state employment. The commission rejected the plaintiffs’ claim,
concluding instead that disability retirement benefits are payable on the
first day of the month after the Retirement Services Division receives
the employee’s application. The commission noted that, although the
act is silent as to when disability retirement benefits become payable,
the attorney general had issued an opinion in 1981, in which he concluded
that, under Tier I of SERS, such benefits are not payable from the date of
the employee’s termination of employment. Moreover, the commission
observed that it had implemented that interpretation of the act on a
number of occasions since 1981 and that the legislature had not overruled
that interpretation. In the plaintiffs’ administrative appeal before the
trial court, that court upheld the commission’s ruling on the ground that
the commission’s interpretation of the act was entitled to substantial
deference because it was time-tested and reasonable. The trial court
rendered judgment dismissing the plaintiffs’ administrative appeal, from
which the plaintiffs appealed. Held:
1. The plaintiffs could not prevail on their claims that the trial court improp-
erly deferred to the commission’s interpretation of the act on the basis
that that interpretation was neither time-tested, insofar as it was not
formally articulated or adopted pursuant to formal rule-making or adjudi-
catory procedures, nor reasonable, insofar as the provisions of the act
clearly and unambiguously provide that disability retirement benefits
become payable on the day after the employee’s last day of paid
employment:
a. The commission’s interpretation of the act was time-tested: even if
an agency’s interpretation of a statute is entitled to no deference unless
it had been adopted pursuant to formal rule-making or adjudicatory
procedures, the commission attached to its ruling an exhibit showing
that, since 1986, it has issued decisions in a number of cases applying
the rule that disability retirement benefits commence on the first day of
the month after the application is received, this court repeatedly has
afforded deference to an agency’s interpretation of a statute, as reflected
in the agency’s rulings in specific cases, and the plaintiffs did not explain
why these cases were not issued pursuant to adjudicatory procedures;
moreover, unlike agency interpretations that are set forth only in private
correspondence and internal documents, which are not entitled to judi-
cial deference, the commission’s interpretation of the act in the present
case had been formally articulated pursuant to adjudicatory procedures,
namely, in the specific cases it cited in its exhibit; in addition, the attorney
general’s 1981 opinion had been distributed to the heads of all state
agencies shortly after it was issued, presumably so that agencies could
make the substance of the opinion known to any SERS member who
inquired about the date on which disability retirement benefits
become payable.
b. There was no merit to the plaintiffs’ claim that the commission’s
interpretation of the act, which was based on the attorney general’s 1981
opinion, was unreasonable because it conflicted with the legislature’s
1983 amendments to the act adopting tier II of SERS: the provisions
(§§ 5-169 (j) and 5-192l (c)) of the act on which the plaintiffs relied
did not specify the date that payment of retirement disability benefits
commences but, rather, distinguished between the member’s date of
disability and date of retirement, nothing in the act indicated that the
date a member becomes eligible for retirement disability benefits and
the date that benefits become payable are identical, and, accordingly,
the 1983 amendments did not clearly indicate that the attorney general’s
interpretation of the act was incorrect; moreover, although the act is
silent regarding when disability retirement benefits commence and its
express provisions do no compel the interpretation that the commission
adopted, that interpretation was nonetheless reasonable, especially in
view of the fact that the provisions of the act were negotiated by the state
and representatives of the state employee unions pursuant to collective
bargaining, and approved and codified by the legislature, and neither
those parties nor the legislature, which were all presumed to have been
aware of the attorney general’s 1981 opinion and the commission’s deci-
sions applying its interpretation of the act, has sought to renegotiate the
agreement or to amend the provisions of the act to reflect a different
understanding, even though the legislature has amended the act several
times since 1981; furthermore, because the express terms of the act
provide that, for normal retirement, early retirement and hazardous duty
retirement, retirement occurs after the date that an application is filed,
and payment of retirement benefits commences on the day of retirement,
it was reasonable for the commission to treat disability retirement consis-
tently with these other forms of retirement; in addition, having disability
retirement benefits become payable on the first day of the month after
an application for such benefits is received allows the state to predict
at any given time its potential liability for the payment of such benefits,
changing the rule could subject the state to claims for retroactive pay-
ments from members who are already retired, and it was appropriate
for this court to defer to the commission’s reasonable interpretation of
the act in light of the gap that the legislature left in the act by failing to
specify the date on which an employee’s disability retirement benefits
begin.
2. There was no merit to the plaintiffs’ claim that the commission, as a
fiduciary of the plaintiffs, had the burden of proving, by clear and con-
vincing evidence, fair dealing with respect to its use of an unwritten
practice to set a start date for disability benefits: when a breach of
fiduciary duty is alleged, the burden of proof shifts to the fiduciary to
prove fair dealing by clear and convincing evidence only when the
dominant party is the beneficiary of the transaction or obtains a possible
benefit, and, in the present case, the plaintiffs did not allege that the
commission took advantage of its fiduciary relationship with SERS mem-
bers to benefit itself; moreover, even if it were unfair for the commission
to apply its unwritten interpretation of the act, the plaintiffs failed to
raise a colorable claim because it would be anomalous to conclude that
the commission must apply the plaintiffs’ preferred interpretation, which
also is not expressly set forth in the act or related regulations.
Argued January 12, 2021—officially released February 1, 2022*
Procedural History
Administrative appeal from the decision of the defen-
dant determining the commencement date of the plain-
tiffs’ disability retirement benefits, brought to the
Superior Court in the judicial district of New Britain,
where the court, Huddleston, J., granted in part the
defendant’s motion to dismiss; thereafter, the court,
Cordani, J., rendered judgment dismissing the appeal,
from which the named plaintiff et al. appealed. Affirmed.
Russell D. Zimberlin, for the appellants (named plain-
tiff et al.).
Cindy M. Cieslak, with whom, on the brief, was
Michael J. Rose, for the appellee (defendant).
Opinion
ROBINSON, C. J. The principal issue in this appeal
is whether the State Employees Retirement Act (act),
General Statutes § 5-152 et seq., requires the state to
commence payment of state employee disability retire-
ment benefits on the day after the employee’s last day
of paid employment or, instead, the act permits the
payment of such benefits to start on the first day of the
month after receipt of the employee disability retire-
ment application. The plaintiffs, Catherine Crandle and
Ronald Robinson,1 who are former state employees,
appeal2 from the judgment of the trial court dismissing
their administrative appeal from the declaratory ruling
of the defendant, the Connecticut State Employees
Retirement Commission (commission). On appeal, the
plaintiffs claim that the trial court improperly upheld
the commission’s declaratory ruling that, under various
provisions of the act, disability retirement benefit pay-
ments commence on the first day of the month following
receipt by the Retirement Services Division (division) of
the employee’s approved application for such benefits.
The plaintiffs contend that the trial court improperly
(1) deferred to the commission’s interpretation of the
act because that interpretation is neither reasonable
nor time-tested, and (2) failed to consider that the com-
mission, as a fiduciary of members of the State Employ-
ees Retirement System (SERS), had the burden of
proving fair dealing by clear and convincing evidence.
We disagree with these claims. Accordingly, we affirm
the judgment of the trial court.
The record reveals the following facts, which the
commission found or which are undisputed, and proce-
dural history. Crandle is a member of Tier II of SERS.3
On April 13, 2016, the division received Crandle’s appli-
cation for disability retirement benefits. Because Cran-
dle’s last date of state employment was October 16,
2012, the application was untimely under § 5-155a-2 (d)
of the Regulations of Connecticut State Agencies, which
requires such applications to be filed within twenty-four
months of the applicant’s last day of paid employment.
Crandle requested that the commission toll the limita-
tion period for submitting the application, and the com-
mission granted her request. Thereafter, the State of
Connecticut Medical Examining Board for Disability
Retirement (board) conducted a hearing on Crandle’s
application for disability retirement benefits and granted
it. Payment of the benefits commenced on May 1, 2016,
the first day of the month following the division’s receipt
of the application.
Robinson is a member of Tier IIA of SERS.4 His last
date of state employment was October 31, 2015. On
March 30, 2016, Robinson applied for disability retire-
ment benefits. The board approved his application, and
payment of the benefits commenced on April 1, 2016,
the first day of the month following the division’s receipt
of his application.
On March 1, 2018, the plaintiffs filed a petition for a
declaratory ruling with the commission, contending
that, under the act, payment of disability retirement
benefits commences the day after the employee’s last
day of paid employment.5 In its decision and declaratory
ruling, the commission noted that the act is silent with
respect to when disability retirement benefits become
payable. The commission disagreed with the plaintiffs’
reliance on § 5-155a-2 (d) of the regulations of Connecti-
cut State Agencies to support their position. The com-
mission concluded that the language of the regulation,
providing that ‘‘[t]he time period for filing an application
for disability retirement benefits . . . shall begin on
the day after the applicant’s last day of paid employ-
ment,’’ simply provides a time frame in which the appli-
cant must apply and does not prescribe the day that
payment begins. The commission also observed that
normal retirement benefits for Tier II members become
payable on the first day of any future month named in
the application.6 See, e.g., General Statutes § 5-192l (a)
(‘‘[e]ach member of tier II who has attained age sixty-
five and has completed ten or more years of vesting
service may retire on his own application on the first
day of any future month named in the application’’).
In addition, the commission pointed out that, in 1981,
it had sought an opinion from the attorney general on
the issue of whether disability retirement benefits are
payable retroactive to the date of the employee’s termi-
nation of employment under Tier I of SERS.7 In that
opinion, the attorney general concluded that the legisla-
ture intended that Tier I ‘‘retirement benefits are to flow
prospectively from the time of making application.’’
Opinions, Conn. Atty. Gen. No. 1981-50 (July 30, 1981)
p. 1 (1981 attorney general opinion). This is because
‘‘[a]xiomatic to the granting of such benefits is the
requirement that a member of [SERS] apply for retire-
ment, be it regular, disability or service-connected dis-
ability.’’ Id., pp. 1–2. Emphasizing that it ‘‘is the filing
of the application for retirement, and its subsequent
approval by the [c]ommission [that] triggers a member’s
entitlement to benefits’’; id., p. 2; the 1981 attorney
general opinion concluded that ‘‘service-connected dis-
ability retirement benefits are not to be given retroac-
tive effect when the application [therefor] is submitted
subsequent to the date of termination.’’ Id., p. 3.
The commission further reasoned in its declaratory
ruling that ‘‘the [plaintiffs’] request to use the day after
their last day of paid employment as the date on which
benefits become payable is less of a bright-line rule
[than the practice of commencing payment of benefits
on the first day of the month after the application is
received] since, often, in cases of disability retirement,
members . . . take some form of a leave of absence
while they evaluate whether they will recover from their
injury or in fact are permanently disabled from the job
so as to qualify for a disability retirement. Sometimes
such leave is paid, and sometimes it is unpaid, depending
on the types of leave accrued pursuant to sick time,
vacation, family and medical leave, and workers’ com-
pensation laws and policies.’’ Moreover, the commis-
sion noted that ‘‘some of the petitioners’’; see footnote
5 of this opinion; ‘‘claimed service credit for certain
types of leave, and the statutes do not permit an
employee to receive service credit and a retirement
benefit for the same period of employment.’’
Finally, the commission observed that it had imple-
mented the foregoing interpretation of the act in a num-
ber of cases since 1981 and that the legislature had not
overruled that interpretation, despite making multiple
changes to SERS.8 The commission further pointed out
that the act is a creature of collective bargaining and
was approved and codified by the legislature pursuant
to General Statutes (Rev. to 2017) § 5-278 (b),9 and that
the parties charged with negotiating the terms of SERS
had not made any attempt to amend the act in light of
the commission’s interpretation. Accordingly, the com-
mission concluded in its declaratory ruling that disabil-
ity retirement benefits are payable on the first day of the
month following the division’s receipt of an approved
application for benefits.
Thereafter, the plaintiffs10 filed an administrative appeal
from the commission’s declaratory ruling with the trial
court. The trial court concluded that the commission’s
ruling was time-tested and reasonable and, therefore,
was entitled to substantial deference. In addition, the
trial court observed that neither the legislature nor the
parties that had negotiated the terms of SERS had taken
steps to change those terms as a result of the commis-
sion’s interpretation. Moreover, the court reasoned that
the commission’s interpretation provides an incentive
for members to apply promptly for disability retirement
benefits, thereby minimizing the need for retroactive
payments and maximizing the predictability of the
state’s financial liability. The court rejected the plain-
tiffs’ reliance on General Statutes § 5-169 (j),11 which
provides in relevant part that ‘‘[a] member’s date of
disability shall be his last date of active employment
by the state prior to such disability or the date as of
which his benefits under this section are payable,’’ con-
cluding that that provision merely defines the member’s
date of disability for purposes of calculating benefits
and does not specify the date that benefits first become
payable. The court also rejected the plaintiffs’ con-
tention that the act should be liberally construed because
it is remedial in nature, concluding that it merely sets
forth contractual obligations negotiated by the unions
and the state. Accordingly, the trial court rendered judg-
ment dismissing the administrative appeal. This
appeal followed.
On appeal, the plaintiffs claim that the trial court
incorrectly concluded that the commission’s interpreta-
tion of the act was entitled to deference because that
interpretation is neither time-tested nor reasonable.
They further claim that, as a fiduciary of SERS and its
members, the commission had the burden of proving
fair dealing with the plaintiffs by clear and convincing
evidence. We address each claim in turn.
I
We begin our analysis with the plaintiffs’ claims that
the trial court improperly deferred to the commission’s
interpretation of the act because that interpretation was
neither time-tested nor reasonable in that the applicable
statutes clearly and unambiguously provide that bene-
fits become payable on the day after the employee’s
last day of paid employment. We disagree.
Before turning to the plaintiffs’ specific claims, we
note the following general principles that govern judi-
cial review of an agency’s interpretation of the statutory
scheme that it administers. ‘‘This court reviews the trial
court’s judgment pursuant to the Uniform Administra-
tive Procedure Act (UAPA), General Statutes § 4-166 et
seq. Under the UAPA, it is [not] the function . . . of
this court to retry the case or to substitute its judgment
for that of the administrative agency. . . . Even for
conclusions of law, [t]he court’s ultimate duty is only
to decide whether, in light of the evidence, the [agency]
has acted unreasonably, arbitrarily, illegally, or in abuse
if its discretion. . . . [Thus] [c]onclusions of law
reached by the administrative agency must stand if the
court determines that they resulted from a correct appli-
cation of the law to the facts found and could reasonably
and logically follow from such facts.’’ (Internal quota-
tion marks omitted.) Commissioner of Public Safety
v. Freedom of Information Commission, 312 Conn.
513, 525–26, 93 A.3d 1142 (2014).
This court previously has recognized that ‘‘the tradi-
tional deference accorded to an agency’s interpretation
of a statutory term is unwarranted when the construc-
tion of a statute . . . has not previously been subjected
to judicial scrutiny [or to] . . . a governmental agency’s
time-tested interpretation . . . . Conversely, an
agency’s interpretation of a statute is accorded defer-
ence when the agency’s interpretation has been for-
mally articulated and applied for an extended period
of time, and that interpretation is reasonable. . . . Def-
erence is warranted in such circumstances because a
time-tested interpretation, like judicial review, provides
an opportunity for aggrieved parties to contest that
interpretation. Moreover, in certain circumstances, the
legislature’s failure to make changes to a long-standing
agency interpretation implies its acquiescence to the
agency’s construction of the statute. . . . For these
reasons, this court long has adhered to the principle
that when a governmental agency’s time-tested interpre-
tation [of a statute] is reasonable it should be accorded
great weight by the courts.’’12 (Citations omitted; inter-
nal quotation marks omitted.) Tuxis Ohr’s Fuel, Inc.
v. Administrator, Unemployment Compensation Act,
309 Conn. 412, 422–23, 72 A.3d 13 (2013).
This court also has recognized that, in cases involving
the interpretation of federal statutes, ‘‘[i]f the agency’s
reading fills a gap [in the statute] . . . we give that
reading controlling weight, even if it is not the answer
the court would have reached if the question initially
had arisen in a judicial proceeding.’’ (Internal quotation
marks omitted.) Ahern v. Thomas, 248 Conn. 708, 718,
733 A.2d 756 (1999). Other courts have applied the same
principle to the interpretation of state statutes. For
example, in Hama Hama Co. v. Shorelines Hearings
Board, 85 Wn. 2d 441, 536 P.2d 157 (1975), the Washing-
ton Supreme Court reasoned that, ‘‘when a statute is
ambiguous . . . there is the well known rule of statu-
tory interpretation that the construction placed [on] a
statute by an administrative agency charged with its
administration and enforcement, while not absolutely
controlling [on] the courts, should be given great weight
in determining legislative intent. . . . The primary
foundation and rationale for this rule is that consider-
able judicial deference should be accorded to the spe-
cial expertise of administrative agencies. Such
expertise is often a valuable aid in interpreting and
applying an ambiguous statute in harmony with the
policies and goals the legislature sought to achieve by
its enactment.
‘‘At times, administrative interpretation of a statute
may approach lawmaking, but we have heretofore rec-
ognized that it is an appropriate function for adminis-
trative agencies to fill in the gaps where necessary to
the effectuation of a general statutory scheme. . . . It
is likewise valid for an administrative agency to fill
in the gaps via statutory construction—as long as the
agency does not purport to amend the statute.’’ (Cita-
tions omitted; emphasis added; internal quotation marks
omitted.) Id., 448.
Similarly, in Silver Lining Group EIC Morrow
County. v. Ohio Dept. of Education Autism Scholar-
ship Program, 85 N.E.3d 789 (Ohio App. 2017), appeal
denied, 152 Ohio St. 3d 1424, 93 N.E.3d 1005 (2018),
the Ohio Court of Appeals held that, ‘‘[i]f a statute pro-
vides an administrative agency authority to perform a
specified act but does not provide the details by which
the act should be performed, the agency is to perform
the act in a reasonable manner based [on] a reasonable
construction of the statutory scheme. . . . An agency’s
reading that fills a gap or defines a term in a reasonable
way in light of the [l]egislature’s design controls, even
if it is not the answer the court would have reached in
the first instance. . . .
‘‘Thus, a legislative gap is not equivalent to a lack of
authority for the agency to act. . . . Rather, the power
of an administrative agency to administer a . . . pro-
gram necessarily requires the formulation of policy
and the making of rules to fill any gap left, implicitly
or explicitly, by the legislature.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 801; see also Division of Justice & Community
Services v. Fairmont State University, 242 W. Va. 489,
496, 836 S.E.2d 456 (2019) (‘‘a court is obligated to defer
to an agency’s view only when there is a statutory gap
or ambiguity’’ (internal quotation marks omitted)).
A
We begin with the plaintiffs’ claim that the commis-
sion’s interpretation of the act is not time-tested because
it ‘‘was neither formally articulated nor adopted pursuant
to formal rule-making or adjudicatory procedures and
because the agency . . . relied [only] on private corre-
spondence and internal documents . . . .’’13 In support
of this claim, the plaintiffs rely on two of this court’s
decisions. See Tilcon Connecticut, Inc. v. Commis-
sioner of Environmental Protection, 317 Conn. 628,
651, 119 A.3d 1158 (2015) (agency’s interpretation of
statute is not time-tested if it has ‘‘been neither formally
articulated nor adopted pursuant to formal rule-making
or adjudicatory procedures’’); Hasselt v. Lufthansa
German Airlines, 262 Conn. 416, 432, 815 A.2d 94 (2003)
(noting that, under United States Supreme Court’s deci-
sion in Christensen v. Harris County, 529 U.S. 576,
587, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000), ‘‘opinion
letters—like interpretations contained in policy state-
ments, agency manuals, and enforcement guidelines,
all of which lack the force of law—do not warrant . . .
deference’’ (internal quotation marks omitted)); see
also Christensen v. Harris County, supra, 587 (United
States Department of Labor’s interpretation contained
in opinion letter was not entitled to deference because
it was ‘‘not one arrived at after, for example, a formal
adjudication or [notice and comment rule making],’’
and ‘‘[i]nterpretations such as those in opinion letters—
like interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all of
which lack the force of law—do not warrant . . . def-
erence’’ under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 104 S.
Ct. 2778, 81 L. Ed. 2d 694 (1984)).14
We conclude that neither Hasselt nor Tilcon Connect-
icut, Inc., supports the plaintiffs’ position. In Hasselt,
the defendant, the Second Injury Fund, contended that
this court should give deference to a memorandum
written by Jesse M. Frankl, the chairman of the Workers’
Compensation Commission, in which Frankl gave his
interpretation of General Statutes § 31-307a (c). See
Hasselt v. Lufthansa German Airlines, supra, 262
Conn. 421. This court noted that it ‘‘previously [had] not
determined whether a commissioner’s policy directive,
which contains an interpretation [of a state statute] not
adopted pursuant to formal rule-making or adjudicatory
procedures, is entitled to deference,’’ or, instead, this
court should adopt the Christenson rule applicable to
policy directives interpreting federal statutes. Id., 432.
This court did not resolve that issue, however, because
it concluded that, even if such policy directives may
be entitled to deference in appropriate circumstances,
Frankl’s memorandum was not because it was neither
time-tested nor reasonable.15 Id.
We further note that, in Christensen v. Harris
County, supra, 529 U.S. 576, on which this court relied
in Hasselt, the United States Supreme Court recognized
that, although interpretations contained in opinion let-
ters ‘‘do not warrant Chevron-style deference,’’ they are
‘‘entitled to respect under [its] decision in Skidmore v.
Swift & Co., 323 U.S. 134, 140 [65 S. Ct. 161, 89 L. Ed.
124] (1944) . . . to the extent that those interpreta-
tions have the power to persuade . . . .’’ (Internal quo-
tation marks omitted.) Christensen v. Harris County,
supra, 587; see Skidmore v. Swift & Co., supra, 140
(‘‘We consider that the rulings, interpretations and opin-
ions of the [a]dministrator under [the Fair Labor Stan-
dards] Act, while not controlling [on] the courts by
reason of their authority, do constitute a body of experi-
ence and informed judgment to which courts and liti-
gants may properly resort for guidance. The weight of
such a judgment in a particular case will depend [on] the
thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it
power to persuade, if lacking power to control.’’). This
formulation seems consistent with our jurisprudence
holding that, although an agency’s interpretation of a
statute is not binding, it is entitled to deference when
it is time-tested and reasonable.16 The same is true of
an opinion of the attorney general. See Connecticut
Hospital Assn., Inc. v. Commission on Hospitals &
Health Care, 200 Conn. 133, 143, 509 A.2d 1050 (1986)
(‘‘[a]lthough an opinion of the attorney general is not
binding on a court, it is entitled to careful consideration
and is generally regarded as highly persuasive’’).
In any event, even if the plaintiffs were correct that
an agency’s interpretation of a state statute is entitled
to no deference if it was not adopted pursuant to formal
rule-making or adjudicatory procedures, the commis-
sion attached to its ruling an exhibit showing that, on
a number of occasions since 1986, the commission has
issued decisions in specific cases applying the rule that
disability retirement benefits commence on the first
day of the month after the application is received.17
See footnote 8 of this opinion. The plaintiffs have not
explained why these specific cases were not issued
pursuant to adjudicatory procedures. Cf. United States
v. Independent Bulk Transport, Inc., 480 F. Supp. 474,
478 (S.D.N.Y. 1979) (under federal administrative law,
‘‘[a]djudicatory proceedings, unlike [rule-making] pro-
ceedings, involve determinations of contested facts in
applying rules to specific circumstances’’). This court
has repeatedly afforded deference to an agency’s inter-
pretation of a statute, as reflected in the agency’s rulings
in specific cases. See, e.g., Tuxis Ohr’s Fuel, Inc. v.
Administrator, Unemployment Compensation Act,
supra, 309 Conn. 430–31 (giving deference to interpreta-
tion of statute by Board of Review of Employment Secu-
rity Appeals Division, as reflected in that board’s
decisions); Stec v. Raymark Industries, Inc., 299 Conn.
346, 357, 10 A.3d 1 (2010) (‘‘[i]n light of the [Compensa-
tion Review] [B]oard’s numerous decisions from 1980
to 2010, a period of thirty years, we conclude that the
board’s construction of [General Statutes] § 31-301 (a)
constitutes a time-tested interpretation’’ entitled to def-
erence); Hartford v. Hartford Municipal Employees
Assn., 259 Conn. 251, 268, 788 A.2d 60 (2002) (giving
deference to agency’s interpretation when agency ‘‘con-
sistently [had] interpreted the statute for more than
twenty-five years’’ in its rulings); Savings Bank of Rock-
ville v. Wilcox, 117 Conn. 188, 194, 167 A. 709 (1933)
(‘‘The interpretation [that] we have given this statute
conforms to the practice of the tax commissioner’s
office and the bank in computing the deductions pre-
viously accorded as shown by the stipulation and exhib-
its. It is a familiar rule of statutory and constitutional
construction that such usage, while not absolutely bind-
ing [on] the courts, is entitled to great weight.’’ (Internal
quotation marks omitted.)).
The plaintiffs contend that the commission’s deci-
sions are not entitled to deference because they merely
indicate that the commission applied the rule that pay-
ment of disability retirement benefits commences on
the first day of the month after receipt of the application,
not that it ‘‘evaluated’’ that rule. In one of the cases,
however, the applicant claimed that, as the result of a
settlement with a workers’ compensation carrier, the
applicant was eligible for disability retirement benefits
on a date considerably earlier than the settlement date
and the date on which the applicant applied for benefits.
The exhibit states that ‘‘[t]he [c]ommission decided that
the retirement benefits could not commence until the
first of the month after the [m]ember applied for retire-
ment benefits . . . .’’ (Emphasis added.) Although the
exhibit does not expressly indicate that the commission
engaged in a thorough reexamination of its interpreta-
tion of the act, the commission presumably considered
arguments why that interpretation was incorrect. In
any event, the plaintiffs have cited no authority for the
proposition that, for an agency’s interpretation to be
considered time-tested, every application of the inter-
pretation in an adjudicatory proceeding must be subject
to a challenge. An agency’s interpretation of a statute
is time-tested if it ‘‘has been formally articulated and
applied for an extended period of time . . . .’’ (Internal
quotation marks omitted.) Tuxis Ohr’s Fuel, Inc. v.
Administrator, Unemployment Compensation Act,
supra, 309 Conn. 422.
For similar reasons, we also conclude that Tilcon
Connecticut, Inc. v. Commissioner of Environmental
Protection, supra, 317 Conn. 628, does not support the
plaintiff’s claim that the commission’s interpretation is
not entitled to deference because it is not time-tested.
In that case, the defendant, the Commissioner of Envi-
ronmental Protection, claimed that the interpretation
of the Department of Environmental Protection (depart-
ment) of the Connecticut Water Diversion Policy Act,
General Statutes § 22a-365 et seq., was entitled to defer-
ence because it had ‘‘(1) consistently required informa-
tion from other applicants for water diversion permits
that was similar to the category and extent of informa-
tion [requested of the plaintiff]; and (2) consistently
evaluated the direct and indirect effects of proposed
diversions in acting on diversion permit applications.
In support of this claim, the department submitted
excerpts from various permit review processes, includ-
ing correspondence and other internal memoranda, for
a variety of applicants seeking diversion permits from
the department.’’ (Emphasis in original.) Id., 650. This
court concluded that the department’s interpretation
was not entitled to deference because an interpretation
that is set forth only in ‘‘private correspondence and
internal documents’’ has not been formally articulated.18
Id., 651. We conclude that the present case is distin-
guishable because the commission has formally articu-
lated its interpretation of the act in adjudicatory
procedures. Moreover, after the commission obtained
the formal opinion from the attorney general on the
question of when payments of disability retirement ben-
efits become payable under the act, the Office of the
State Comptroller distributed the opinion to the heads
of all state agencies.19 It is reasonable to conclude that
one reason that the Office of the State Comptroller
disseminated the memorandum was so that agencies
could make the substance of the opinion known to any
SERS member who inquired about the date on which
disability retirement benefits become payable. Thus,
the 1981 attorney general opinion is distinguishable
from the ‘‘private correspondence and internal docu-
ments’’ to which deference was not afforded in Tilcon
Connecticut, Inc. Id. We conclude, therefore, that the
commission’s interpretation of the act is time-tested.
B
We next address the plaintiffs’ claim that the trial
court incorrectly determined that the commission’s
interpretation of the act is reasonable. In support of
this claim, the plaintiffs contend that the 1981 attorney
general opinion, on which the commission’s interpreta-
tion is premised, conflicts with certain provisions of
the 1983 amendments to the act adopting Tier II of
SERS, specifically, General Statutes §§ 5-169 (j), 5-192l
(c) and 5-192p. See Public Acts 1983, No. 83-533, §§ 16,
28 and 32. For the following reasons, we disagree.
In reaching the conclusion that retirement disability
benefits are not retroactive to the day following the last
date of paid employment, the attorney general relied
on the provisions of General Statutes (Rev. to 1981)
§ 5-162 (c), (d) and (e),20 General Statutes (Rev. to 1981)
§ 5-163a (a), (b) and (c),21 and General Statutes (Rev.
to 1981) § 5-169 (c).22 See Opinions, Conn. Atty. Gen. No.
1981-50, supra, pp. 1–3. On the basis of the provisions
of General Statutes (Rev. to 1981) §§ 5-162 (c) and (d),
and 5-163a (a), (b) and (c), the attorney general deter-
mined that, because a member seeking normal retire-
ment is retired following the member’s application, the
application is a prerequisite for retirement. In addition,
under General Statutes (Rev. to 1981) § 5-162 (e), which
authorizes the comptroller to ‘‘draw his orders upon
the treasurer for any amounts the applicant is entitled
to receive’’; (emphasis added); it is the retirement appli-
cation that triggers retirement payments. With respect
to retirement disability benefits, the attorney general
determined that the provision of General Statutes (Rev.
to 1981) § 5-169 (c) authorizing the board ‘‘to determine
whether each applicant for disability retirement is enti-
tled thereto’’; (emphasis added); indicated that an appli-
cation for retirement is a precondition for retirement.23
See Opinions, Conn. Atty. Gen. No. 1981-50, supra, p.
2. The attorney general concluded that, because ‘‘the
disability retirement income is an incident of retire-
ment, it does not begin to accrue prior to retirement.’’
Id., p. 3.
The plaintiffs first contend that the legislature’s
enactment of §§ 5-169 (j) and 5-192l (c) makes it clear
that the attorney general’s interpretation of the act was
incorrect. Specifically, the plaintiffs point out that § 5-
169 (j) provides in relevant part that ‘‘[a] member’s date
of disability shall be his last date of active employment
by the state prior to such disability or the date as of
which his benefits under this section are payable,
whichever is earlier. . . .’’ Section 5-192l (c) provides
in relevant part: ‘‘Notwithstanding any other provision
of sections 5-192e to 5-192x, inclusive, to the contrary,
if a member’s date of retirement, disability, death or
termination occurs in the first six months of any calen-
dar year, his monthly retirement income shall in no
event be less than that which would have been payable
had his date of retirement, disability, death or termina-
tion occurred as of December thirty-first of the prior
year, and had his final average earnings, credited ser-
vice, and breakpoint been determined as of that date.
No retroactive payments shall be paid because of such
minimum, and his actual date of retirement, disability,
death or termination shall be utilized for all other
purposes of the tier II plan.’’ (Emphasis added.) The
plaintiffs contend that these provisions clearly establish
that, for purposes of determining when payment of dis-
ability retirement benefits commences, a member’s date
of disability retirement is the day after the member’s
‘‘last date of active employment by the state prior to
such disability,’’ at the latest.24 General Statutes § 5-169
(j).
We are not persuaded. As the trial court observed,
§ 5-169 (j) specifies the provisions of the act that govern
the calculation of the amount of retirement disability
benefits that the member will receive, based on the
date of disability.25 See General Statutes § 5-169 (j) (‘‘[a]
member whose date of disability occurs prior to January
1, 1984, shall have his benefits calculated in accordance
with the provisions of law in effect at the time of such
occurrence’’). Section 5-169 (j) does not specify the date
that payment of such benefits will commence. Section
5-192l (c) provides that, if a member’s date of disability
occurs in the first six months of the year and the calcula-
tion of the amount of the member’s disability retirement
benefit on the date of disability is less than it would
have been if the date of disability had occurred before
December 31 of the prior year, the amount will be calcu-
lated as of the latter date. Nothing about § 5-192l (c)
suggests that the date of disability is the date of disabil-
ity retirement or that the ‘‘other purposes’’ of the act
to which the statute refers include the date that payment
of disability retirement benefits commences. Indeed,
both §§ 5-169 (j) and 5-192l (c) distinguish the date
of retirement from the date of disability. See General
Statutes § 5-169 (j) (referring separately to ‘‘date of dis-
ability’’ and ‘‘date as of which [disability retirement]
benefits . . . are payable,’’ thereby implying that dates
are different); General Statutes § 5-192l (c) (referring
separately to ‘‘date of retirement’’ and ‘‘date of . . .
disability,’’ thereby implying that dates are different).
Moreover, if the legislature had intended to mandate
the payment of disability retirement benefits commenc-
ing on the day after the last day of paid employment,
we cannot conceive why it would have done so in this
roundabout way instead of expressly stating the date
that payment commences.
The plaintiffs further contend that § 5-192p (a) implies
that disability retirement benefits become payable on
the day after the member’s last day of paid employment.
Section 5-192p (a) provides in relevant part that, ‘‘[i]f
a member of tier II, while in state service, becomes
disabled as defined in subsection (b) of this section,
prior to age sixty-five, he is eligible for disability retire-
ment if the member has completed at least ten years
of vested service. . . .’’ We conclude that this statute
merely sets forth the conditions for eligibility for disabil-
ity retirement benefits; it does not provide that the date
of eligibility and the date that benefits become payable
are identical.
Finally, if the legislature had intended to overrule the
1981 attorney general opinion when it enacted the 1983
amendments adopting Tier II of SERS, it presumably
would have amended the act to ensure that the same
rule would apply to members subject to § 5-169, govern-
ing Tier I disability retirement benefits. The plaintiffs
have made no claim that that is the case. We conclude,
therefore, that the 1983 amendments do not clearly
indicate that the attorney general’s interpretation of the
act was incorrect. Rather, the act is silent on the ques-
tion of when disability retirement benefits commence.26
In light of this silence, we acknowledge that the
express provisions of the act do not compel the interpre-
tation set forth in the attorney general’s opinion and
adopted by the commission. We agree with the plain-
tiffs, for example, that the fact that an application is a
prerequisite for payment of disability retirement bene-
fits—which the plaintiffs have never denied—does not,
ipso facto, compel the conclusion that retroactive pay-
ment of the benefits is prohibited. Nevertheless, we
conclude, for the following reasons, that the commis-
sion’s position that disability retirement benefits are
payable on the first day of the month following applica-
tion is reasonable.
First, the express terms of the act provide that, for
normal retirement,27 early retirement28 and hazardous
duty retirement,29 retirement occurs after the date that
an application is filed, and payment of retirement bene-
fits commences on the day of retirement. Although the
act does not expressly state when disability retirement
occurs or when payment of disability retirement bene-
fits commences, it is reasonable for the commission to
treat disability retirement consistently with these other
forms of retirement.30
Second, the provisions of the act were negotiated
by the state and representatives of the state employee
unions pursuant to collective bargaining and were sub-
mitted to the legislature for approval and codification
pursuant to § 5-278 (b). State employers and the unions
have presumably been aware of the 1981 attorney gen-
eral opinion, which was distributed to the heads of all
state agencies, as well as the commission’s decisions
applying its interpretation of the act with respect to
the date that normal and disability retirement benefits
become payable, and neither party has sought to rene-
gotiate the agreement or to amend the provisions of
the act to reflect a different understanding. In addition,
the legislature is presumed to be aware of the interpreta-
tion given to statutes by the attorney general and admin-
istrative agencies, and it has not given any indication
that it had a different understanding of the agreement
that the parties submitted to it for approval, even though
the legislature has amended the act several times since
1981. See Berkley v. Gavin, 253 Conn. 761, 776 n.11,
756 A.2d 248 (2000) (‘‘we have applied [the] doctrine
of legislative acquiescence to administrative interpreta-
tions of statutes’’); Housing Authority v. Dorsey, 164
Conn. 247, 253, 320 A.2d 820 (‘‘[w]e . . . construe the
legislature’s failure to amend [General Statutes (Rev.
to 1973)] § 8-42 after the attorney general’s opinion that
the statute barred tenants from being commissioners
as an indication of legislative intent that tenants should
not be placed in a position [in which] they could control
housing authorities in whose properties they were ten-
ants’’), cert. denied, 414 U.S. 1043, 94 S. Ct. 548, 38 L.
Ed. 2d 335 (1973); see also State v. Salamon, 287 Conn.
509, 525, 949 A.2d 1092 (2008) (‘‘[l]egislative concur-
rence is particularly strong [when] the legislature makes
unrelated amendments in the same statute’’ (internal
quotation marks omitted)).
Third, we are not persuaded by the plaintiffs’ argu-
ment that the commission’s interpretation of the act
‘‘punishes injured members who attempt to recover.’’
The plaintiffs posit ‘‘two employees, one [A] who [after
his last day of paid employment] attempts rehabilitation
through physical therapy or other treatment before
sending in the application for disability retirement.
Another employee [B] leaves work and immediately
files for benefits, making no attempt to regain the ability
to work. The second employee will receive more in
state retirement benefits because there will be no gap
between initial injury or sickness and application for
pension benefits.’’ The reason that employees A and B
are treated differently in this scenario, however, is that
A believed that he could not establish that he was enti-
tled to disability retirement benefits immediately after
his last date of paid employment, whereas B was in
fact able to do so.31 If B could continue the service
for which he was employed, he would not qualify for
disability retirement benefits at any time, notwithstand-
ing the fact that he filed an application for disability
retirement benefits immediately after his last day of
paid employment. If A believed as of his last day of
paid employment that it was unlikely that he would be
able to return to work but was uncertain whether he
had sufficient information to establish that fact, that
uncertainty would not prevent him from submitting an
application the next day, if he so chose.32 See Regs.,
Conn. State Agencies § 5-155a-2 (d).33 If the board
denied the application, the member would have one
year in which to file a motion for reconsideration. See
id., § 5-155a-2 (f).34 The member would then have one
year from the date that he sought reconsideration to
submit additional information to the board about his
medical condition on the last day of employment and
an explanation as to why the information was not avail-
able at the time of the original application. See id., § 5-
155a-2 (g).35 Thus, a member who filed an application
the day after his last day of paid employment, even
though he was not certain at that time that he could
establish that he was qualified to receive disability
retirement benefits, would have up to two years after
his application was denied to obtain additional informa-
tion to support the application. Although the member
would admittedly have less time to obtain information
supporting his application than a member who waited
for two years after his last date of paid employment to
file an application would have, we are not persuaded
that that fact renders the commission’s interpretation
unreasonable.36 We further note that an employee who
takes an unpaid leave before filing an application
because he is uncertain whether he will be able to
return to work and who ultimately receives disability
retirement benefits is in no worse a position than an
employee who takes an unpaid leave and ultimately
returns to work. Both will be unpaid during the period
they are on leave. Finally, we note that an uncodified
addendum to the SERS agreement governing disability
retirement benefits provides that, if the board ultimately
denies the member’s application, the agency in which
the member was last actively employed is required to
return the applicant to employment. Thus, the member
is not punished for filing an application that is denied.
Fourth, making disability retirement benefits payable
on the first day of the month after an application is
received allows the state to predict at any given time
its potential liability for payment of such benefits. If a
member could be paid benefits retroactively to a date
up to two years before receipt of the application, the
state could be subject to sudden, unforeseen increases
in liability.37 Moreover, if the rule were now changed,
the state could be subject to claims for retroactive pay-
ments from members who are already retired.
Finally, and perhaps most significant, it is appropriate
for this court to give great deference to the commis-
sion’s reasonable interpretation in light of the gap that
the legislature left in the act on this issue: the statute
does not specify the date on which an employee’s dis-
ability retirement benefits will begin. See Silver Lining
Group EIC Morrow County v. Ohio Dept. of Education
Autism Scholarship Program, supra, 85 N.E.3d 801(‘‘[a]n agency’s reading that fills a gap . . . in a reason-
able way in light of the [l]egislature’s design controls’’
(internal quotation marks omitted)). Even if the com-
mission reasonably could have adopted the plaintiffs’
position, nothing in the act required it to do so, and we
ought not substitute our judgment as to which of two
reasonable positions is preferable for the judgment of
the commission. Accordingly, we conclude that the trial
court properly gave substantial deference to the com-
mission’s position that disability retirement benefits
become payable on the first day of the month after the
application is received.
II
We next address the plaintiffs’ claim that, as a fidu-
ciary of the plaintiffs, the commission has the burden
of proving fair dealing by clear and convincing evidence
and that it has failed to do so.38 The commission con-
tends that, because this is an administrative appeal, not
a civil action for breach of fiduciary duty, the burden
is on the plaintiffs to demonstrate that the commission’s
interpretation of the act is incorrect. We conclude that
the commission did not have the burden of proving fair
dealing by clear and convincing evidence.
We begin with a review of the governing law. General
Statutes § 5-155a (c) provides in relevant part that the
commission ‘‘shall have general supervision of the oper-
ation of the retirement system, shall conduct the busi-
ness and activities of the system, in accordance with
this chapter and applicable law and each trustee shall
be a fiduciary with respect to the retirement system
and its members. . . .’’ ‘‘This court has instructed that
. . . [a] fiduciary or confidential relationship is charac-
terized by a unique degree of trust and confidence
between the parties, one of whom has superior knowl-
edge, skill or expertise and is under a duty to represent
the interests of the other. . . . The superior position
of the fiduciary or dominant party affords him great
opportunity for abuse of the confidence reposed in
him.’’ (Internal quotation marks omitted.) Iacurci v.
Sax, 313 Conn. 786, 800, 99 A.3d 1145 (2014). ‘‘Once a
[fiduciary] relationship is found to exist, the burden of
proving fair dealing properly shifts to the fiduciary. . . .
Furthermore, the standard of proof for establishing fair
dealing is not the ordinary standard of fair preponder-
ance of the evidence, but requires proof either by clear
and convincing evidence, clear and satisfactory evi-
dence or clear, convincing and unequivocal evidence.’’
(Internal quotation marks omitted.) Murphy v. Wakelee,
247 Conn. 396, 400, 721 A.2d 1181 (1998).
‘‘[I]t is only when the confidential relationship is
shown together with suspicious circumstances, or
[when] there is a transaction, contract, or transfer between
persons in a confidential or fiduciary relationship, and
[when] the dominant party is the beneficiary of the
transaction, contract, or transfer, that the burden shifts
to the fiduciary to prove fair dealing.’’ (Emphasis added;
internal quotation marks omitted.) Cadle Co. v. D’Adda-
rio, 268 Conn. 441, 456, 844 A.2d 836 (2004); see id. (‘‘if
the superior party obtains a possible benefit, equity
raises a presumption against the validity of the transac-
tion or contract, and casts upon such party the burden
of proving fairness, honesty, and integrity in the transac-
tion or contract’’ (emphasis in original; internal quota-
tion marks omitted)); id., 457 (‘‘when a breach of
fiduciary duty is alleged, and the allegations concern
fraud, self-dealing or a conflict of interest, the burden
of proof shifts to the fiduciary to prove fair dealing by
clear and convincing evidence’’).
The plaintiffs in the present case appear to claim that
the commission was required to prove by clear and
convincing evidence that its use of ‘‘an unwritten prac-
tice . . . to set a start date for disability benefits’’ was
fair to the plaintiffs. The plaintiffs contend that ‘‘[a]n
unwritten policy could lead to inconsistent and arbi-
trary decisions’’ and ‘‘does not give fair notice to
employees who are contemplating disability retire-
ment.’’ The plaintiffs also claim that the substance of
the commission’s rule is unfair insofar as it punishes
SERS members who do not file an application for dis-
ability retirement benefits immediately after their last
day of paid employment because they are uncertain
whether they can establish that they qualify. Even if
we were to assume, however, that the plaintiffs estab-
lished a prima facie case with respect to these issues,39
the plaintiffs have not claimed that the commission
took advantage of its fiduciary relationship with SERS
members to benefit itself. We conclude, therefore, that
the burden did not shift to the commission to prove
fair dealing by clear and convincing evidence.40 See,
e.g., Cadle Co. v. D’Addario, supra, 268 Conn. 456–57
(fiduciary is required to prove fair dealing by clear and
convincing evidence only if plaintiff alleges that fidu-
ciary obtained benefit from alleged wrongdoing). We
further note that, even if we were to conclude that it
was unfair of the commission to apply its interpretation
of the act to the plaintiffs because it was not expressly
set forth in the act or any regulation, it is unclear to
us what the remedy would be. It would be anomalous to
conclude that the commission must apply the plaintiffs’
interpretation, which also is not expressly set forth in
the act or regulations. Accordingly, even if we were to
assume, without deciding, that the commission’s appli-
cation of a time-tested and reasonable rule that fills a
gap in the act could conceivably constitute an abuse
of its fiduciary relationship with SERS members, and
that a claim of breach of fiduciary duty may be raised in
an administrative appeal, we conclude that the plaintiffs
have not made a colorable claim that that is the case
here.
The judgment is affirmed.
In this opinion the other justices concurred.
* February 1, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
In addition to Crandle and Robinson, the plaintiffs in the underlying
administrative appeal were Stephanie Hawthorne, Pedro Rodriguez, Michael
Gardner, Leslie Cavanagh, Leah Margentino, Tammy Fettig, Ebone Kearse,
Dana Goldberg, Gerard Bernier, Darcie Dockum, Stanley Jarosz, Derek Wil-
liams, Linda Walsh, Maria Sous and Karla Carey. The trial court, Huddleston,
J., dismissed the claims of Margentino, Fettig, Kearse, Goldberg, Bernier,
Dockum, Jarosz, Williams, Walsh, Sous and Carey for their failure to exhaust
their administrative remedies. The trial court, Cordani, J., dismissed the
claims of Hawthorne, Cavanagh, Gardner and Rodriguez for lack of aggrievement.
Because only Crandle and Robinson are participating in this appeal, all
references herein to the plaintiffs are to them collectively, and we refer to
them individually by name when appropriate. Moreover, all references in
this opinion to the trial court are to Judge Cordani.
2
The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
Tier II of SERS is governed by part V of the act, General Statutes § 5-
192e et seq., which applies to all members who joined SERS after July 1,
1984, and to some members who joined SERS after January 1, 1984. See
General Statutes § 5-192e (a). Tier II does not apply to members who joined
SERS after June 30, 1997. See Office of the State Comptroller, Retirement
Services Division, Tier II/ IIA–Retirement Basics, available at https://www.
osc.ct.gov/empret/tier2summ/workshop/tierprint22a.htm (last visited Janu-
ary 31, 2022).
4
Tier IIA of SERS applies to members who joined SERS from July 1, 1997,
through June 30, 2011. See Office of the State Comptroller, Retirement
Services Division, Tier II/IIA Retirement Basics, available at https://www.
osc.ct.gov/empret/tier2summ/workshop/tierprint22a.htm (last visited Janu-
ary 31, 2022).
5
The petition was brought by the plaintiffs, Jeremy Wiganowske, Steph-
anie Hawthorne, Paula Mitchell, Leslie Cavanagh, Pedro Rodriguez and
Michael Gardner. Only the plaintiffs remain as parties to this case. See
footnote 1 of this opinion.
6
None of the parties contends that, for purposes of the issue before us
in this appeal, Tier IIA disability retirement benefits differ in any material
way from Tier II benefits.
7
General Statutes §§ 5-157 through 5-192d govern Tier I of SERS. See
General Statutes § 5-192f (e). Tier I applies to most employees who joined
SERS on or before July 1, 1984. See Connecticut State Employees Retirement
System, Tier I: Summary Plan Description, available at https://www.osc.ct.-
gov/empret/tier1summ/tier1summ.htm (last visited January 31, 2022)
8
The commission attached to its ruling an exhibit that is identified in the
index to the return of record that was filed in the trial court as a ‘‘selection
of the commission’s past decisions relating to the effective date of payment
of disability retirement benefits.’’ Three of the decisions appear to involve
applications for disability retirement benefits.
9
General Statutes (Rev. to 2017) § 5-278 (b) provides in relevant part:
‘‘Any agreement reached by the negotiators shall be reduced to writing. The
agreement, together with a request for funds necessary to fully implement
such agreement and for approval of any provisions of the agreement which
are in conflict with any statute or any regulation of any state agency . . .
shall be filed by the bargaining representative of the employer with the
clerks of the House of Representatives and the Senate within ten days after
the date on which such agreement is reached . . . . The General Assembly
may approve any such agreement as a whole by a majority vote of each
house or may reject such agreement as a whole by a majority vote of either
house. . . .’’
10
See footnote 1 of this opinion.
11
General Statutes § 5-169 (j) provides: ‘‘A member whose date of disability
occurs prior to January 1, 1984, shall have his benefits calculated in accor-
dance with the provisions of law in effect at the time of such occurrence.
A member’s date of disability shall be his last date of active employment
by the state prior to such disability or the date as of which his benefits
under this section are payable, whichever is earlier. A leave of absence for
medical reasons shall not be deemed to be active employment.’’
12
The plaintiffs point out that, in Bouchard v. State Employees Retirement
Commission, 328 Conn. 345, 178 A.3d 1023 (2018), this court stated, with
respect to a number of issues involving the interpretation of the act, that,
‘‘[a]lthough substantial deference is given to factual and discretionary deter-
minations of administrative agencies, each of these questions is a purely
legal matter over which we exercise plenary review.’’ Id., 358. There was
no claim in Bouchard, however, that the commission’s interpretation was
entitled to deference because it was time-tested and reasonable. Accordingly,
we cannot conclude that that case overruled the long-standing principle
that deference is given to a time-tested and reasonable agency interpretation.
See, e.g., Meriden v. Freedom of Information Commission, 338 Conn. 310,
319, 258 A.3d 1 (2021) (court gives deference to agency’s interpretation of
statute if it is time-tested and reasonable).
13
The plaintiffs also contend that the commission’s interpretation is not
time-tested because the 1981 attorney general opinion, on which the commis-
sion heavily relies, conflicts with later amendments to the act that, according
to the plaintiffs, clearly show that the payment of disability retirement
benefits commences on the day after the member’s last day of paid employ-
ment. Because that claim goes more properly to the plaintiffs’ claim that
the commission’s interpretation is unreasonable, we address it in part I B
of this opinion.
14
Under Chevron, ‘‘[s]tatutory ambiguities will be resolved . . . not by
the courts but by the administering agency.’’ Arlington v. Federal Communi-
cations Commission, 569 U.S. 290, 296, 133 S. Ct. 1863, 185 L. Ed. 2d 941(2013); see id. (‘‘if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s answer
is based on a permissible construction of the statute’’ (internal quotation
marks omitted)).
15
We recognize that, in Sarrazin v. Coastal, Inc., 311 Conn. 581, 89 A.3d
841 (2014), this court cited Hasselt for the proposition that an agency’s
interpretation of a statute is not entitled to deference when it ‘‘was not
promulgated pursuant to any formal rule-making procedures or articulated
pursuant to any adjudicatory procedures . . . .’’ Id., 611; see Frank v. Dept.
of Children & Families, 312 Conn. 393, 421, 94 A.3d 588 (2014) (citing
Sarrazin for proposition that ‘‘an agency interpretation, whether of its own
regulations or of a statute that the agency is charged with enforcing, is not
accorded deference by the court when it has not been promulgated pursuant
to any formal rule-making procedures or articulated pursuant to any adjudi-
catory procedures’’ (internal quotation marks omitted)); State v. Drupals,
306 Conn. 149, 169, 49 A.3d 962 (2012) (citing Hasselt for proposition that
‘‘[a]n agency form, to the extent it contains an interpretation not adopted
pursuant to formal rule-making or adjudicatory procedures,’’ is not entitled
to deference (internal quotation marks omitted)). As we have explained,
however, this court did not hold in Hasselt that an agency’s interpretation
of the statute that was not adopted pursuant to formal rule-making or
adjudicatory procedures is not entitled to deference, and in none of these
cases did the court independently analyze the issue.
16
We acknowledge that it is arguable that the ‘‘respect’’ given to informal
but persuasive policy directives interpreting federal statutes under Chris-
tensen may be somewhat weaker than the deference that we afford to time-
tested and reasonable agency interpretations.
17
The commission also recognized exceptions to the rule that payment
of retirement benefits commences on the first day of the month after receipt
of the application when receipt of the application by the division was delayed
through no fault of the applicant, when an agency, through its error, contin-
ued a member on sick leave when he should have been retired, and when
the applicant failed to apply for retirement in a timely manner because the
state misinformed her regarding her retirement rights.
18
We note that, in Tilcon Connecticut, Inc., this court stated that the
interpretations of the Department of Environmental Protection were not
entitled to deference ‘‘because they have been neither formally articulated
nor adopted pursuant to formal rule-making or adjudicatory procedures
. . . .’’ (Emphasis added.) Tilcon Connecticut, Inc. v. Commissioner of
Environmental Protection, supra, 317 Conn. 651. As we explained, however,
this court had not previously held that no deference is given to an agency’s
interpretation unless it was adopted pursuant to formal rule-making or
adjudicatory procedures.
19
We note that the commission is ‘‘within the Retirement Division of the
office of the Comptroller for administrative purposes . . . .’’ General Stat-
utes § 5-155a (a). Under General Statutes § 4-38f (b), ‘‘[t]he department to
which an agency is assigned for administrative purposes only shall . . . (2)
disseminate for the agency any required notices, rules or orders adopted
. . . by the agency . . . .’’
20
General Statutes (Rev. to 1981) § 5-162 provides in relevant part: ‘‘(c)
. . . (1) Except as provided in section 5-163a, each member who has com-
pleted twenty-five or more years of state service shall be retired on his own
application on the first day of the month named in the application, and on
or after the member’s fifty-fifth birthday.
***
‘‘(d) . . . (1) Except as provided in section 5-163a, each member who
has completed less than twenty-five years of state service shall be retired on
his own application, on the first day of the month following his application,
if the member has completed ten years of state service and reached his
sixtieth birthday.
***
‘‘(e) Each retirement application shall be made to the retirement commis-
sion and, upon its approval, shall be forwarded to the comptroller, who
shall draw his orders upon the treasurer for any amounts the applicant is
entitled to receive.’’
21
General Statutes (Rev. to 1981) § 5-163a provides in relevant part: ‘‘(a)
Any member who has completed twenty-five years of state service and has
reached the age of fifty prior to June 30, 1980, may elect to be retired on
the first day of the month following such application and receive retirement
benefits in accordance with the provisions of subdivision (3) of subsection
(c) of section 5-162, provided such member so elects prior to June 30, 1980.
‘‘(b) Any member who has completed at least ten but less than twenty-
five years of state service and reached the age of fifty-five prior to June 30,
1980, may elect to be retired on the first day of the month following his
application and receive retirement benefits in accordance with subsection
(d) of this section, provided such member so elects prior to June 30, 1980.
‘‘(c) Any member who has completed at least five but less than ten years
of state service and has reached the age of sixty-five prior to June 30,
1980, may elect to be retired on the first day of the month following such
application and receive retirement benefits in accordance with the provi-
sions of subsection (d) of this section, provided such member so elects
prior to June 30, 1980. . . .’’
22
General Statutes (Rev. to 1981) § 5-169 (c) provides in relevant part:
‘‘The governor shall appoint a board of seven physicians, each of whom is
a state employee and two of whom shall be experienced in psychiatry, to
serve at his pleasure as a medical examining board to determine whether
each applicant for disability retirement is entitled thereto. . . .’’
23
On October 5, 1981, the Office of the Comptroller distributed the 1981
attorney general opinion to the heads of all state agencies.
24
The commission contends that, because the plaintiffs did not rely on
these specific statutory provisions before the trial court, this claim is not
preserved for review. We have some doubt as to whether a party’s failure
to cite a specific statute in support of its interpretation of a related statute
before the trial court precludes the party from arguing that the previously
uncited statute supports its interpretation on appeal. We conclude that we
need not determine whether this claim was preserved, however, because
the plaintiffs cannot prevail on it. See, e.g., Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 157–58, 84 A.3d
840 (2014) (‘‘[r]eview of an unpreserved claim may be appropriate . . .
when the minimal requirements for review are met and . . . the party who
raised the unpreserved claim cannot prevail’’ (citation omitted; emphasis
omitted; footnote omitted)).
25
In their reply brief, the plaintiffs contend that, in § 5-169 (j), ‘‘date of
disability’’ is used to calculate the amount of the retirement disability benefit
only with respect to Tier I, not Tier II. Section 5-169 (j) specifies, however,
whether the provisions of Tier I or Tier II apply for purposes of calculating
the amount of the benefit.
26
In reaching this conclusion, we acknowledge that the act is complex
and hardly a model of clarity. For example, § 5-169 (j) provides in relevant
part that ‘‘[a] member’s date of disability shall be his last date of active
employment by the state prior to such disability or the date as of which his
benefits under this section are payable, whichever is earlier. . . .’’ (Empha-
sis added.) It is unclear to us how a member’s disability retirement benefits
could be payable earlier than his last date of active employment (which,
according to the plaintiffs, means last date of paid employment) when the
parties in the present case agree that a member cannot receive employment
compensation and retirement benefits at the same time. See footnote 32 of
this opinion. We note that the plaintiffs contend that, for purposes of § 5-
169 (j), the phrase ‘‘date as of which [a member’s] benefits . . . are payable’’
means the date that the member filed his application for benefits. They cite
no authority in support of this claim, which would be inconsistent with
their claim that disability retirement benefits are payable the day after the
last day of paid employment. They also do not explain how a member could
file an application for disability retirement benefits earlier than his last day
of paid employment.
27
General Statutes § 5-162 (c), governing Tier I normal retirement for
members with twenty-five or more years of service, provides in relevant
part: ‘‘(1) Except as provided in section 5-163a, each member who has
completed twenty-five or more years of state service shall be retired on his
own application on the first day of the month named in the application, and
on or after the member’s fifty-fifth birthday.
‘‘(2) Each member who has completed twenty-five or more years of state
service and has reached his seventieth birthday and who is in an appointive
position shall continue in service and shall be retired on the first day of the
month on or after his seventieth birthday, upon notice from the Retirement
Commission to the member, to the executive head of his agency and the
Comptroller.
‘‘(3) Each member referred to in subdivisions (1) and (2) of this subsection
shall receive a monthly retirement income beginning on his retirement
date . . . .’’
Although § 5-162 (c) does not specify that the ‘‘day of the month named
in the application’’ must be after the date of the application, the 1981 attorney
general opinion presumes that that is the case, and neither the plaintiffs
nor the commission has suggested otherwise.
General Statutes § 5-162 (d), governing Tier I normal retirement for mem-
bers with fewer than twenty-five years of service, provides in relevant part:
‘‘(1) Except as provided in section 5-163a, each member who has completed
less than twenty-five years of state service shall be retired on his own
application, on the first day of the month following his application, if the
member has completed ten years of state service and reached his fifty-
fifth birthday.
‘‘(2) Each such member in an appointive position who has reached his
seventieth birthday shall continue in service and shall be retired on the first
day of the month on or after his seventieth birthday, upon notice from the
Retirement Commission to the member, the executive head of his agency
and the Comptroller.
‘‘(3) Each member referred to in subdivisions (1) and (2) of this subsection
shall receive a monthly retirement income beginning on his retirement
date . . . .’’
General Statutes § 5-192l, governing Tier II normal retirement, provides
in relevant part: ‘‘(a) Each member of tier II who has attained age sixty-
five and has completed ten or more years of vesting service may retire on
his own application on the first day of any future month named in the
application. Benefits shall be payable from that date provided the member
is no longer in state employment.
‘‘(b) Each member of tier II who has attained age seventy and has com-
pleted five or more years of vesting service shall be retired on the first
day of the month coincident with or, otherwise, immediately following his
seventieth birthday, except as provided in subsection (e) of this section.
‘‘(c) Each member of tier II referred to in subsections (a) and (b) of
this section shall receive a monthly retirement income beginning on his
retirement date . . . .’’
28
General Statutes § 5-192m (a), governing Tier II early retirement, pro-
vides: ‘‘Each member of tier II who has attained age fifty-five and has
completed ten or more years of vesting service, shall be retired on his own
application on the first day of any future month named in the application.
Benefits shall be payable from that date provided the member is no longer
in state employment.’’
29
General Statutes § 5-192n provides in relevant part: ‘‘(a) Each ‘hazardous
duty member’ who has completed twenty-five years of credited service while
a hazardous duty member may be retired on his own application on the
first day of any future month named in the application. . . .
‘‘(b) Each member referred to in subsection (a) of this section shall receive
a monthly retirement income beginning on his retirement date . . . .’’
30
The plaintiffs suggest that the fact that the provisions governing disabil-
ity retirement, unlike the provisions governing normal retirement, early
retirement and hazardous duty retirement, do not expressly specify the date
of retirement and the date that payment of retirement benefits commences
shows that the intent of the act was to treat disability retirement differently.
If that were the case, however, we cannot conceive why the parties who
negotiated the provisions of the act and the 1983 amendments adopting Tier
II would have chosen to remain silent on the question of when disability
retirement occurs and when benefits become payable instead of specifying
when those events occur. It is more reasonable to conclude that this silence
was a legislative oversight than to conclude that the legislature differentiated
disability retirement from the other forms of retirement by intentionally
remaining silent on this issue, thereby giving rise to the present uncertainty
and confusion.
31
Under § 5-192p (b), which governs Tier II disability retirement, ‘‘[a]
member is disabled for the first twenty-four months [after retirement] if he
is permanently unable to continue to render the service in which he has been
employed. Disability retirement continues thereafter only if such member
is totally disabled for any suitable and comparable job.’’
32
The commission points out that SERS members are entitled to state
service credit for certain forms of unpaid leave. It contends that, if the
period during which a member was entitled to receive payment of disability
retirement benefits overlapped with the period for which the member was
entitled to receive state service credit, as a general rule, the member could
not both receive payment of the benefits and credit for state service during
the period of overlap, a practice known as ‘‘double dipping.’’ Cf. General
Statutes § 5-192l (a) (‘‘[b]enefits [for normal retirement] shall be payable
from [the first day of any future month named in the application] provided
the member is no longer in state employment’’); General Statutes § 5-192v
(b) (‘‘[n]o [retired] member reemployed [by the state on a permanent basis]
. . . shall receive a retirement income during such member’s reemployment
or other state service,’’ with certain exceptions); see also General Statutes
§ 5-192i (f) (‘‘[i]f an employee is absent from the service of the state due to
a work-related injury or disease for which periodic workers’ compensation
cash benefits are payable, the period of such absence shall not count as a
break in service and shall be considered vesting service’’). According to the
commission, § 5-192p (h) provides an exception to this rule. See General
Statutes § 5-192p (h) (‘‘if the member recovers from such disability prior to
reaching what would have been his normal retirement date . . . such mem-
ber shall receive credit for both vesting and credited service purposes for
the years he was disabled’’).
The commission claims that the plaintiffs’ position that disability retire-
ment benefits are payable commencing on the day after the last day of paid
employment would be unworkable because it would result in double dipping
whenever a member took an unpaid leave for which he received state service
credit after his last day of paid employment and later filed an application
for retirement disability benefits that was granted. It is unclear to us, how-
ever, that starting payment of retirement disability benefits on the first day
of the month after receipt of the application would be the only way to avoid
double dipping under these circumstances. If the plaintiffs were correct
that payment of disability retirement benefits commences on the day after
the last day of paid employment, the commission might adopt a rule that
would give the member a choice between (1) receiving state service credit
for the leave period and payment of retirement benefits starting the day
after the last day of leave, or (2) receiving payment of retirement benefits
starting the day after his last day of paid employment, but no state service
credit. Alternatively, the commission might adopt a blanket rule barring
either receipt of state service credit or payment of retirement benefits during
the period of overlap.
Indeed, under the rule that payment of disability retirement benefits com-
mences on the first day of the month after receipt of the application, the
commission’s suggestion that a member cannot file an application for retire-
ment benefits and simultaneously take an unpaid leave that entitles the
member to service credit creates a dilemma for a SERS member who, as
of his last day of paid employment, is uncertain whether he qualifies for
disability retirement benefits. Although the commission’s position that retire-
ment disability benefits are payable commencing on the first day of the
month after receipt of the application creates an incentive for the member
to file an application for disability retirement benefits as soon as possible
after the last day of paid employment to maximize benefits if the application
is ultimately granted, applying early in lieu of taking an unpaid leave would
potentially deprive the member of state service credit to which he would
otherwise have been entitled if the application is ultimately denied.
We note that the plaintiff’s claim that the statutes cited by the commission
prohibit only the simultaneous receipt of employment compensation and
retirement benefits, not the simultaneous receipt of state service credit and
retirement benefits. In support of this claim, they rely only on § 5-192p (h),
which, according to the commission, provides an exception to the general
rule that a member cannot receive state service credit and retirement bene-
fits for the same period. Because we would conclude that the commission’s
position that disability retirement benefits become payable on the first day
of the month after receipt of the application is reasonable regardless of
which of these positions on the double dipping question is correct, and
because the parties have not comprehensively briefed these issues, we
decline to resolve them here.
33
Section 5-155a-2 (d) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘The time period for filing an application for
disability retirement benefits or petition for service connected disability
retirement shall begin on the day after the applicant’s last day of paid
employment by the State of Connecticut and shall end at close of business
on the date that is twenty-four months after the applicant’s last day of
paid employment.’’
34
Section 5-155a-2 (f) of the Regulations of Connecticut State Agencies
provides: ‘‘The member shall have one (1) calendar year from the date of
the Board’s decision of denial to seek reconsideration of said decision. If
the member does not seek reconsideration of the Board’s decision of denial
within said one (1) calendar year, the Board’s initial decision of denial shall
stand. The decision of denial shall be brought before the Commission for
its approval as administratively denied.’’
35
Section 5-155a-2 (g) of the Regulations of Connecticut State Agencies
provides: ‘‘The member shall have one year from the date he or she sought
reconsideration to: (1) submit the requested records (if any); and (2) submit
additional material facts concerning his or her medical condition at the date
of termination of employment; and (3) explain in writing why such material
facts were not available to the member at the time of his or her original
application to the Board. If the member does not provide the above informa-
tion within one (1) calendar year of the date of seeking reconsideration,
the Board’s initial decision of denial shall stand. The decision of denial shall
be brought before the Commission for its approval as administratively
denied.’’
36
We acknowledge that a member who sits on his rights and, without
good reason, fails to file an application for disability retirement benefits,
even though he clearly qualifies for them, would lose benefits for the period
of delay. We cannot conclude, however, that that fact renders the commis-
sion’s interpretation unreasonable. We also note that the commission has
recognized certain exceptions to the rule that benefits are payable on the
first day of the month after receipt of the application when the application
is delayed through no fault of the member. See footnote 17 of this opinion.
37
The commission further contends that, under the plaintiff’s interpreta-
tion, ‘‘there would be no incentive for the employing agency to work with
the member to determine if [he] could return to work [because] the member
will claim disability retirement benefits from the last day [he was] physically
on the job.’’ The commission points out that, during many types of leave,
‘‘the member’s job is protected as [he attempts] to recover from a temporary
disability and return to work.’’ See, e.g., 29 U.S.C. § 2614 (2018) (providing
certain protections to employees who takes leave because of health condi-
tion); General States § 31-51nn (a) (providing certain protections to employ-
ees who takes medical leave). According to the commission, if the member
were entitled to disability benefits from the day after the last day of paid
employment, the employing agency would receive no benefit from waiting
to see if the employee would return to work and, therefore, would simply
‘‘separate’’ the member immediately, thereby depriving the member of his
protected status. We are not persuaded. First, the commission has not
explained how the employing agency would know whether a member who
takes a leave of absence for health reasons would later file an application
for disability retirement benefits. Second, the commission has not explained
how an employing agency could prevent an employee from taking a medical
leave to which he is entitled by law or why it could simply ignore the laws
that are intended to protect such employees. Third, the benefit from not
terminating the member immediately would be that the state might not have
to pay any disability retirement benefits if the member were able to return
to work. Finally, this argument assumes that this issue could not arise under
the commission’s interpretation of the act because a member cannot file
an application for retirement disability benefits on the day after the member’s
last day of paid employment if the member also takes an unpaid leave of
absence. As we already indicated, it is unclear to us whether that is the
case. See footnote 32 of this opinion.
38
We note that, although the plaintiffs raised this claim in their briefs to
the trial court, the trial court did not address it. The commission contends
that the claim is not reviewable because the plaintiffs did not allege a breach
of fiduciary duty in their initial appeal to the trial court. We conclude that
we need not determine whether the plaintiffs’ claim is reviewable because
they cannot prevail. See footnote 24 of this opinion.
39
As we explained, the Office of the Comptroller distributed the 1981
attorney general opinion, which provides the basis of the commission’s
interpretation, to the heads of all state agencies, presumably so that the
agencies can provide this information to any SERS member who inquires
about the issue. Moreover, there is no evidence that the commission has
applied this interpretation inconsistently. Indeed, the only evidence is to
the contrary. We also concluded that the plaintiffs have failed to establish
that the commission’s rule is punitive to SERS members who do not file an
application for disability retirement benefits immediately after their last day
of paid employment.
40
We are aware of no authority for the proposition that a different rule
applies when a fiduciary is administering a pension or healthcare plan and
the benefit to the fiduciary may be somewhat attenuated. See, e.g., Roth v.
Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir. 1994) (under
Employee Retirement Income Security Act of 1974, ‘‘plaintiffs bear the bur-
den of proving a breach of fiduciary duty and a prima facie case of loss to
the plan’’); Rodrigues v. United Public Workers, AFSCME Local 646, AFL-
CIO, 135 Haw. 316, 319, 349 P.3d 1171 (2015) (plaintiffs demonstrated by
preponderance of evidence that administrator of union’s healthcare benefit
plan breached his fiduciary duty to participants).