Gould v. Freedom of Information Commission

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MARTIN A. GOULD v. FREEDOM OF
INFORMATION COMMISSION
ET AL.
(SC 18966)
Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa, Vertefeuille and
DiPentima, Js.*
Argued October 23, 2013—officially released December 16, 2014
Martin A. Gould, self-represented, with whom was
Mark W. Baronas and, on the brief, Nancy Gould, for
the appellant (plaintiff).
Lisa Fein Siegel, commission counsel, with whom,
on the brief, was Colleen M. Murphy, general counsel,
for the appellee (named defendant).
Tara L. Shaw, with whom, on the brief, was John
H. Cassidy and Thomas G. Parisot, for the appellee
(defendant James Moore et al.).
Opinion
EVELEIGH, J. The plaintiff, Martin A. Gould, a mem-
ber of the arbitration panel that is the subject of the
present case, appeals from the judgment of the trial
court dismissing his appeal from the final decision of
the defendant Freedom of Information Commission
(commission).1 In its decision, the commission con-
cluded that: (1) the arbitration panel is a committee of
the Department of Education (department); and (2) the
evidentiary portion of an arbitration hearing under the
Teacher Negotiation Act (TNA); see General Statutes
§ 10-153a et seq.; is subject to the open meetings provi-
sion of the Freedom of Information Act (FOIA); see
General Statutes § 1-225 (a);2 and ordered the plaintiff,
along with the two other members of the three member
arbitration panel, to create a transcript of the steno-
graphic record from an arbitration hearing dated Janu-
ary 30, 2010, and to provide that transcript to the
defendant Waterbury Republican-American (newspa-
per) and the defendant Jim Moore, a journalist with the
newspaper, who had been excluded from the arbitra-
tion proceedings.3
The plaintiff advances two arguments in support of
his contention that the trial court improperly dismissed
his appeal. First, the plaintiff claims that, because a
TNA arbitration panel is not a ‘‘committee of’’ the
department, it does not constitute a ‘‘ ‘[p]ublic agency’ ’’
pursuant to General Statutes (Supp. 2014) § 1-200 (1)
(A).4 Second, the plaintiff claims that, because the pre-
sentation of evidence and testimony at a TNA arbitra-
tion hearing constitutes ‘‘strategy or negotiations with
respect to collective bargaining,’’ the evidentiary por-
tion of the hearings does not constitute a ‘‘ ‘[m]eeting’ ’’
pursuant to § 1-200 (2). See footnote 4 of this opinion.
We agree with the plaintiff’s first claim and, therefore,
reverse the judgment of the trial court.5
The final decision of the commission sets forth the
following relevant facts.6 On December 21, 2009, the
Torrington City Council rejected a negotiated
agreement between the Torrington Board of Education
(board) and the Torrington Education Association
(association). As required by the TNA, the parties then
proceeded to arbitration. See General Statutes § 10-153f
(c) (1).7 Because the board and the association had
elected to proceed with a three member arbitration
panel rather than a single arbitrator, the parties each
selected one arbitrator, then the two arbitrators agreed
upon a third, impartial arbitrator. See General Statutes
§ 10-153f (c) (1). At a hearing dated January 30, 2010,
Moore sought to cover the arbitration proceedings for
the newspaper. In response to the association’s request
that Moore be excluded from the proceedings, the arbi-
tration panel, which consisted of the plaintiff, James
Larry Foy and Victor Schoen, adjourned to what it desig-
nated an executive session, closed to the public. Claim-
ing that the panel violated the open meetings provision
of the FOIA by closing the evidentiary portion of the
arbitration proceedings to the public, Moore and the
newspaper subsequently filed a complaint with the com-
mission, and requested as relief that the commission
order the panel to provide a transcript of the hearing.
Because the commission concluded that the eviden-
tiary portion of a TNA arbitration hearing constitutes
a meeting of a public agency for purposes of § 1-200,
it agreed with Moore and the newspaper that the panel
violated the open meetings provision of the FOIA by
excluding Moore from the portion of the hearing
devoted to the presentation of evidence and testimony.
In concluding that a TNA arbitration panel is a public
agency, the commission relied on the language of § 10-
153f (a), which provides that the pool from which TNA
arbitration panels are drawn is ‘‘in’’ the department.
General Statutes § 10-153f (a).8 Accordingly, the com-
mission concluded that the panel constituted a commit-
tee of the department pursuant to § 1-200 (1) (A). As
for its conclusion that the evidentiary portion of the
arbitration hearing constituted a meeting, the commis-
sion relied on this court’s decision in Glastonbury Edu-
cation Assn. v. Freedom of Information Commission,
234 Conn. 704, 663 A.2d 349 (1995). In that decision,
although this court concluded that the presentation of
last best offers during a TNA arbitration proceeding
constituted ‘‘strategy or negotiations with respect to
collective bargaining’’ and, therefore, did not fall within
the definition of ‘‘meeting’’ pursuant to § 1-200 (2), we
expressly left open the question of whether the eviden-
tiary portion of a TNA arbitration hearing fell within
that definition. (Internal quotation marks omitted.) Id.,
717–18. Relying on language in Glastonbury Education
Assn. that distinguished between the presentation of
last best offers and the evidentiary portions of TNA
arbitration hearings, the commission concluded that
the evidentiary portion of the hearing in the present
case was separate from the presentation of the last best
offers. On the basis of that distinction, the commission
concluded that the evidentiary portion of the hearing
did not constitute ‘‘strategy or negotiations with respect
to collective bargaining.’’ Therefore, the commission
concluded that the evidentiary portion of the hearing
constituted a ‘‘meeting’’ pursuant to § 1-200 (2) and was
subject to the open meetings provision of the FOIA.
The commission ordered the members of the arbitration
panel and the department to create a transcript of the
stenographic record of the hearing dated January 30,
2010, at their own expense and to provide that transcript
to the defendants.
The department, the plaintiff and Schoen appealed
from the final decision of the commission to the Supe-
rior Court, which dismissed the appeal.9 The trial court
held that the commission properly resolved both the
issues of whether the panel was a public agency and
whether the evidentiary portion of the hearing was a
meeting. In dismissing the appeal, the trial court, like
the commission, relied on the language of § 10-153f (a)
to conclude that the panel was a ‘‘committee of’’ the
department and, therefore, a public agency for the pur-
pose of the FOIA. The court also agreed with the com-
mission that the evidentiary portion of TNA arbitration
hearings constituted a meeting for purposes of § 1-200
(2), concluding that this court has construed the excep-
tion for ‘‘strategy and negotiations with respect to col-
lective bargaining’’ from the definition of meeting
narrowly, both in Glastonbury Education Assn. v. Free-
dom of Information Commission, supra, 234 Conn.
712–13, and Waterbury Teachers Assn. v. Freedom of
Information Commission, 240 Conn. 835, 839, 694 A.2d
1241 (1997). Applying a narrow construction of that
exception, the trial court concluded that the commis-
sion’s order conformed to the ‘‘more limited order envi-
sioned by the majority in [Glastonbury Education
Assn.].’’ This appeal followed.
We first address the issue of whether a TNA arbitra-
tion panel is a public agency within the meaning of § 1-
200 (1) (A). More precisely, because § 1-200 (1) (A)
includes within the definition of ‘‘ ‘[p]ublic agency’ ’’
a ‘‘committee of’’ a public agency, and because the
department is indisputably a public agency, the issue
before us is whether a TNA arbitration panel is a ‘‘com-
mittee of’’ the department. The plaintiff contends that
the trial court’s conclusion that a TNA arbitration panel
is a ‘‘committee of’’ the department cannot be recon-
ciled with this court’s decision in Elections Review
Committee of the Eighth Utilities District v. Freedom
of Information Commission, 219 Conn. 685, 687, 595
A.2d 313 (1991), in which we interpreted that phrase
to be confined to subunits of a public agency. The com-
mission responds that, because the plain language of
§ 10-153f (a) locates the arbitration panel within the
department, the panel is a ‘‘committee of’’ the depart-
ment, and, therefore, a public agency.
The question of whether a TNA arbitration panel con-
stitutes a committee of the department and, therefore,
a public agency pursuant to § 1-200 (1) (A) presents an
issue of statutory construction, over which we exercise
plenary review. See Marchesi v. Board of Selectmen,
309 Conn. 608, 614, 72 A.3d 394 (2013). When construing
a statute, ‘‘[o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) Kasica v. Columbia, 309 Conn. 85, 93, 70 A.3d
1 (2013).
We begin our analysis with the statutory text. Section
1-200 (1) (A) provides in relevant part that the term
‘‘ ‘[p]ublic agency’ ’’ means ‘‘[a]ny executive, adminis-
trative or legislative office of the state or any political
subdivision of the state and any state or town agency,
any department, institution, bureau, board, commis-
sion, authority or official of the state or of any city,
town, borough, municipal corporation, school district,
regional district or other district or other political subdi-
vision of the state, including any committee of, or
created by, any such office, subdivision, agency, depart-
ment, institution, bureau, board, commission, authority
or official . . . .’’ (Emphasis added.)
The meaning of the term ‘‘committee’’ was considered
in Elections Review Committee of the Eighth Utilities
District v. Freedom of Information Commission,
supra, 219 Conn. 685, when this court construed the
term ‘‘public agency,’’ as used in a prior, nearly identical
version of § 1-200 (1) (A).10 In that case, the eighth
utilities district (district) for the town of Manchester,
a public agency, appointed an elections review commit-
tee to study the procedures of the annual meeting of
the district in order to expedite that process and to
obtain greater participation by the electors. Id., 687.
The elections review committee appointed was com-
posed of one district director and three volunteer elec-
tors who held no office in the district. Id. The elections
review committee was requested to file a report with
the district, but it had no authority to change the proce-
dures of the annual meeting or to alter any provisions
of the bylaws. Id. Under these facts, this court con-
cluded that the elections review committee was not a
committee within the meaning of the FOIA because
‘‘the legislature intended only that committees of public
agencies that are subunits composed of members of
the public agency be subject to the provisions of the
FOIA.’’ Id., 697.
In order to resolve the plaintiff’s claim, therefore,
we must resolve whether TNA arbitration panels are
subunits of the department. To resolve this issue, we
look to § 10-153f (a). The first sentence of § 10-153f (a)
provides: ‘‘There shall be in the Department of Educa-
tion an arbitration panel of not less than twenty-four
or more than twenty-nine persons to serve as provided
in subsection (c) of this section.’’ (Emphasis added.)
The defendants assert that this language clearly and
unambiguously supports their position that the arbitra-
tion panel is a subunit of the department. We disagree,
however, and conclude that an equally plausible reading
of the language is that the list is maintained ‘‘in’’ the
department solely for administrative purposes.
Section 10-153f (a) gives the governor, not the Com-
missioner of Education (commissioner), the power to
select panel members. The arbitrators are appointed to
the arbitration panel ‘‘pool’’ by the governor. The statute
also mandates that seven members represent local and
regional boards, seven members represent the bar-
gaining unit, and ten to fifteen members are impartial
representatives of the public in general. General Stat-
utes § 10-153f (a). Thus, after the Governor fulfills his
mandate, a list is established of this cross section of
arbitrators, which is maintained by the department.
There is no one panel of arbitrators. The panels are
selected from the pool of arbitrators established by the
governor. It is also evident that the people who com-
prise this list come from a cross section of members
of the general public. The language of the statute does
not allow for one arbitrator to be appointed who is a
member of the State Board of Education or the depart-
ment. General Statutes § 10-153f (a). Moreover, the
commissioner has no power to remove a member of
the panel. Section 10-153f (a) provides that ‘‘[a]rbitra-
tors may be removed for good cause. If any vacancy
occurs in such panel, the Governor shall act within
forty days to fill such vacancy in the manner provided
in section 4-19.’’
The statute further demonstrates the separation
between the panel members and the department by
requiring that the arbitrators be paid by the parties and
not by the department. General Statutes § 10-153f (a).
Section 10-153f (a) further provides: ‘‘Persons
appointed to the arbitration panel shall serve without
compensation but each shall receive a per diem fee for
any day during which such person is engaged in the
arbitration of a dispute pursuant to this section. The
parties to the dispute so arbitrated shall pay the fee in
accordance with subsection (c) of this section.’’
The arbitration panel does not just have a great deal
of autonomy, it has complete autonomy. Pursuant to
§ 10-153f (c) (2), the chairperson of the arbitration panel
or the single arbitrator sets the date, time, and place
for a hearing to be held and notifies the board of educa-
tion and the department. The chairperson of the arbitra-
tion panel or the single arbitrator presides over the
hearing. General Statutes § 10-153f (c) (2). The panel
or the single arbitrator has the discretion to continue
the hearing, but must complete the hearing within
twenty-five days after its commencement. General Stat-
utes § 10-153f (c) (3). After the hearing, the arbitrators
or the single arbitrator renders a decision in writing
and files ‘‘one copy of the decision with the commis-
sioner, each town clerk in the school district involved,
the legislative body or bodies of the town or towns for
the school district involved, or, in the case of a town
for which the legislative body of the town is a town
meeting or representative town meeting, to the board of
selectmen, and the board of education and organization
which are parties to the dispute.’’ General Statutes § 10-
153f (c) (4). This decision is final and binding upon the
parties to the dispute unless a rejection is filed and the
award of the arbitrators or the single arbitrator shall not
be subject to rejection by referendum. General Statutes
§ 10-153f (c) (4).
On the basis of the foregoing, it would appear reason-
able to conclude that, aside from having their name on
the list, the arbitrators have no association whatsoever
with the department. Nevertheless, it would also be
reasonable to conclude that the legislature’s use of the
term ‘‘in the department’’ indicated an intention to have
the panel members be considered part of the depart-
ment. ‘‘ ‘[I]t is well settled that when two incongruent
readings of a statute are equally plausible, the statute is
ambiguous.’ See, e.g., Fairchild Heights, Inc. v. Amaro,
293 Conn. 1, 9, 976 A.2d 668 (2009); Hees v. Burke
Construction, Inc., 290 Conn. 1, 12, 961 A.2d 373
(2009).’’ Hartford/Windsor Healthcare Properties, LLC
v. Hartford, 298 Conn. 191, 198, 3 A.3d 56 (2010).
Accordingly, we conclude that § 10-153f (a) is ambigu-
ous and, pursuant to § 1-2z, resort to extratextual
sources in order to determine its meaning.
The particular amendment to § 10-153f (a) that
inserted the word ‘‘in’’ was a part of a wide-ranging
amendment to the statutes relating to state agencies
enacted in 1977. See Public Acts 1977, No. 77-614, § 304
(P.A. 77-614). It is likely that, because the prior version
of the statute referred to ‘‘the secretary’’ without defin-
ing the agency to which ‘‘the secretary’’ belonged; see
General Statutes (Rev. to 1977) § 10-153f; the insertion
of the phrase ‘‘in the department of education’’ was
simply to clarify that aspect of the statute and to provide
that the list of arbitrators was to be maintained ‘‘in’’
the department of education.
In the absence of legislative guidance, we next con-
sider the dictionary definition of the word ‘‘in.’’ See
Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672,
678, 911 A.2d 300 (2006) (‘‘[t]o ascertain the commonly
approved usage of a word, we look to the dictionary
definition of the term’’ [internal quotation marks omit-
ted]). According to Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2003), the word ‘‘in’’ is used to indicate
physical surroundings. The word ‘‘in’’ clearly does not
mean that the arbitrators are employees, or are associ-
ated with, the department because the three arbitrators
in this case are, in effect, independent contractors,
whom, aside from being on the list, have no association
with the department. The arbitrators do not act for
or on behalf of the department. Moreover, the panel
members are not physically located in the department
and, in fact, have no association of any kind with the
department. Indeed, if the arbitrators did have some
association with the department it could affect the very
neutrality which is essential to the appointment of the
arbitration panel, particularly the third arbitrator. As
we have often stated, ‘‘[w]e construe a statute in a
manner that will not . . . lead to absurd results.’’
(Internal quotation marks omitted.) Raftopol v. Ramey,
299 Conn. 681, 703, 12 A.3d 783 (2011). Therefore, the
only physical presence connected with the department
is the list of arbitration panel members. This list is
maintained by the department and is located in the
department. We conclude, therefore, that the panel
members are not in the department.
Nevertheless, the fact that the list is maintained by
the department is not dispositive of the case. Pursuant
to Elections Review Committee of the Eighth Utilities
District, it is the relationship of the members of the
arbitration panels with either the board or the depart-
ment which is determinative. In this instance, it is abun-
dantly clear from both the language of § 10-153f and
the specific facts of the case that the arbitrators have
no relationship with the department. The arbitration
panels neither conduct business for, nor make decisions
on behalf of, the department. They do not act for the
department. The panels are not composed of members
of the department. We, therefore, conclude that arbitra-
tion panels are neither ‘‘committees’’ nor ‘‘subunits of
committees’’ of the department.
Thus, pursuant to § 10-153f, the panel controls the
conduct of the meeting, the scheduling of hearings, and
makes the ultimate decision without interference from
anyone. The fact that the commissioner may be able
to call the parties in to see him; see General Statutes
§ 10-153f (c) (1); is a separate issue from the duties of
the panel. The commissioner has no control over the
panel members. In fact, the statute specifically provides
that the chair of the panel shall preside over the hearing.
General Statutes § 10-153f (c) (2). There is no wording
in the statute that mandates that the hearings must be
public. The chair determines the manner in which the
hearing is conducted. The decision of the panel is final,
subject to rejection, further panel review or judicial
review. General Statutes § 10-153f (c) (8). Moreover,
the commissioner has no power to change the decision
of the panel. Any suggestion to the contrary belies the
facts surrounding the arbitration process.
An examination of § 10-153f reveals no language
allowing the commissioner to oversee the panel in any
way. For instance, § 10-153f (c) (1) does allow the com-
missioner to ‘‘order the parties to appear before [him]
during the arbitration period.’’ This authority, however,
relates to the commissioner’s authority over the parties
rather than the arbitration panel. Section 10-153f (c)
(4) requires the panel to send a copy of its decision to
the commissioner, but there is no provision that allows
the commissioner to change the decision in any way.
Section 10-153f (c) (5) allows the commissioner to
‘‘assist the arbitration panel . . . as may be required
during the course of the arbitration . . . .’’ This duty
would seem to relate to the appointment of panelists,
but certainly would suggest that the commissioner
assists the panel only if it either requires or asks for
assistance. Section 10-153f (c) (7) requires further noti-
fication to the commissioner if the school district
rejects the award. This language relates to notice and
does not suggest that the commissioner can exercise
any power over the arbitrator’s decision. In addition
§ 10-153f (d) provides: ‘‘The commissioner and the arbi-
trators or single arbitrator shall have the same powers
and duties as the board under section 31-108 for the
purposes of mediation or arbitration pursuant to this
section, and subsection (c) of section 10-153d, and all
provisions in section 31-108 with respect to procedure,
jurisdiction of the Superior Court, witnesses and penal-
ties shall apply.’’ Again, this statutory language would
suggest that, at least in certain areas, the powers of the
arbitration panel and the commissioner are equal, as
opposed to the commissioner overseeing the panel. This
section may also relate to § 10-153f (c) (1), which allows
the commissioner to ‘‘order the parties to appear before
said commissioner during the arbitration period. . . .’’
‘‘It is a well settled principle of statutory construction
that the legislature knows how to convey its intent
expressly . . . or to use broader or limiting terms
when it chooses to do so.’’ (Citations omitted; internal
quotation marks omitted.) Marchesi v. Board of Select-
men, supra, 309 Conn. 618. If the legislature wished to
have such hearings conducted in public, it could have
expressed that intent after our decision in Elections
Review Committee of the Eighth Utilities District.
Twenty-three years has passed since our decision, and
the legislature has yet to do so. ‘‘We may infer that the
failure of the legislature to take corrective action within
a reasonable period of time following a definitive judi-
cial interpretation of a statute signals legislative
agreement with that interpretation. See, e.g., Mahon v.
B.V. Unitron Mfg., Inc., 284 Conn. 645, 665–66, 935
A.2d 1004 (2007).’’ Caciopoli v. Lebowitz, 309 Conn. 62,
77–78, 68 A.3d 1150 (2013). ‘‘Although we are aware
that legislative inaction is not necessarily legislative
affirmation . . . we also presume that the legislature
is aware of [this court’s] interpretation of a statute, and
that its subsequent nonaction may be understood as a
validation of that interpretation.’’ (Internal quotation
marks omitted.) Id., 78. Section 10-153f contains many
directives to the panel. It does not, however, direct that
the hearings be held in public.11 In fact, it has specifically
directed that the conduct of the proceedings be directed
by the chair. The fact that the panel is completely auton-
omous and is comprised of members who are not either
a part of or acting on behalf of the department per-
suades us that an arbitration panel is not a ‘‘committee’’
of a state agency.
In Zitser v. Central Connecticut State University,
Freedom of Information Commission, Docket No. FIC
1991-163 (November 27, 1991), a promotion and tenure
committee at Central Connecticut State University was
composed of faculty who were employees of the univer-
sity. That committee received and reviewed recommen-
dations of all candidates for tenure and promotion at
the university, and made nonbinding recommendations
to the president. Id. The commission concluded that,
even though this was a committee comprised of faculty
members, it was not a public agency within the meaning
of the FOIA. Id. The commission ruled that ‘‘the [univer-
sity’s] faculty does not meet to conduct university busi-
ness, and does not act in a legislative capacity or
otherwise exercise supervision, control, jurisdiction or
advisory power over decisions made at [the univer-
sity].’’ Id. Similarly, neither the plaintiff nor the other
arbitrators appointed to the panel in the present case
conduct department business, act in a legislative capac-
ity or have any control, input or advisory power over
decisions made at the department.
It is undisputed that, in the present case, the arbitra-
tion panel was created by the association selecting the
plaintiff, the board selecting Schoen, and those two
arbitrators selecting Foy. The neutral arbitrator was
paid by the association and the board, with each party
paying one half of his fee. Pursuant to § 10-153f, the
neutral arbitrator is not an employee of the department.
The neutral arbitrator does not represent the depart-
ment. The department does not fund the arbitration
panel. The department does not set the dates or times
for the hearing, nor does it control any of the activities
or performance of the arbitrators. The neutral arbitra-
tor, with the help of the other two arbitrators, controls
the arbitration hearing without any intervention, input
or direction for the department. The department has no
power to approve or alter the decision of the arbitrators.
The decision is final unless there is an appeal that then
goes to a review panel, which is also composed of
independent arbitrators. The department does not
direct or interpret any of the statutory factors upon
which the arbitrators base their decision. The plaintiff
is a member of the pool selected by the governor and
approved by the legislature, on behalf of the employee
group, and served as arbitrator for the association.
Schoen is a member of the panel selected by the gover-
nor and approved by the legislature, on behalf of the
employer group, and served as the arbitrator for the
board. The association selected the plaintiff for this
arbitration. It had the right to select him, or some other
arbitrator. The plaintiff received no government fund-
ing, he set his own fee, billed the association and was
paid by the association. The board selected Schoen for
the arbitration. It had the right to select him or some
other arbitrator. Schoen received no government fund-
ing, he set his own fee, billed the board and was paid
by the board.
Arbitrators function in an autonomous fashion. As
the foregoing demonstrates, the arbitration panel was
not created by the government. A reasonable reading
of § 10-153f, therefore, cannot support a determination
that the commissioner ‘‘oversees’’ the arbitration pro-
cess. The commissioner is directed to receive notice of
the panel’s decision regardless of whether that decision
has been accepted by the school district. See General
Statutes § 10-153f (c) (4). The commissioner may assist
the panel, but there is no direction requiring or allowing
for his participation in the arbitration hearing. See Gen-
eral Statutes § 10-153f (c) (5). In view of the total
absence of a relationship between the panel members
and the department, we conclude that the arbitration
panel is not a ‘‘committee’’ of or ‘‘created by’’ the
department.
We further note that the legislature chose not to use
the phrase ‘‘for administrative purposes only’’ in P.A.
77-614, § 304, which amended § 10-153f. Cf. P.A. 77-614,
§ 305 (‘‘[t]he Connecticut Historical Commission shall
be within the [department] for administrative purposes
only’’). The phrase ‘‘for administrative purposes only’’
is defined in General Statutes § 4-38f (a) as follows:
‘‘An agency assigned to a department for administrative
purposes only shall: (1) Exercise any quasi-judicial,
rule-making or regulatory authority, licensing and pol-
icy-making functions which it may have independent
of such department and without approval or control of
the department; (2) prepare its budget, if any, and sub-
mit its budgetary requests through the department; and
(3) hire its own personnel or enter into contracts, if
authorized by law, or if the general assembly provides
or authorizes the expenditure of funds therefor.’’ In
addition, § 4-38f (b) provides: ‘‘The department to which
an agency is assigned for administrative purposes only
shall: (1) Provide record keeping, reporting, and related
administrative and clerical functions for the agency to
the extend deemed necessary by the department head;
(2) disseminate for the agency any required notices,
rules or orders adopted, amended or repealed by the
agency; (3) provide staff for the agency subject to the
provisions of subdivision (3) of subsection (a) of this
section; and (4) include in the departmental budget the
agency’s budgetary request, if any, as a separate part
of said budget and exactly as prepared and submitted
to the department by the agency.’’ Thus, the term ‘‘for
administrative purposes only’’ applies to an ‘‘agency’’
assigned to a department. Therefore, the legislature’s
omission of the phrase ‘‘for administrative purposes
only’’ in P.A. 77-614, § 304, indicates that the legislature
did not consider the panel to be either an agency or
subunit of an agency. Indeed, there would be no need
for the legislature to use that phrase if, in its view, an
arbitration panel was neither an agency nor subunit of
an agency.
It is evident that, as we stated in State Board of Labor
Relations v. Freedom of Information Commission, 244
Conn. 487, 500–501, 709 A.2d 129 (2004), ‘‘the legislature
decided that the benefit associated with the confidenti-
ality of [grievance] arbitration proceedings outweighed
the benefit to be derived from granting public access
to these proceedings.’’
The legislature knows how to require hearings to be
held in public. For example, General Statutes § 31-110
provides: ‘‘Subject to regulations to be made by the
[labor relations] board, the complaints, orders and testi-
mony relating to a proceeding instituted under section
31-107 may be available for inspection or copying. All
proceedings pursuant to said section shall be open to
the public.’’ The fact that this type of language was
omitted from § 10-153f, we conclude, is the most persua-
sive evidence of the legislature’s intent not to have these
proceedings open to the public.
Finally, we note that the arbitration panel is also not,
as the trial court concluded, the ‘‘functional equivalent’’
of the department. The only function or decision-mak-
ing authority the arbitrators possess is simply to decide
which best offers should be accepted. There is no gov-
ernmental or other decision-making role. The depart-
ment has no participation in the arbitration process.
The arbitrators do not perform a governmental func-
tion. The government does not decide either what
wages are paid, or what hours are worked. The arbitra-
tors are paid by the entity which retains them to serve
as arbitrators. There is little or no government involve-
ment or regulation. The decision of this court in Elec-
tions Review Committee of the Eighth Utilities District
v. Freedom of Information Commission, supra, 219
Conn. 685, therefore, controls the present case. Conse-
quently, the panel members are not members of the
agency and, therefore, do not fall within the mandates
of the FOIA. As we recently stated in Commission of
Public Safety v. Freedom of Information Commission,
312 Conn. 513, 550, 93 A.3d 1142 (2014), ‘‘The General
Assembly retains the prerogative to modify or clarify
[the FOIA] as it sees fit.’’
The judgment is reversed and the case is remanded
to the trial court with direction to render judgment
sustaining the plaintiff’s appeal.
In this opinion ROGERS, C. J., and ZARELLA and
VERTEFEUILLE, Js., concurred.
* This appeal originally was argued before a panel of this court consisting
of Chief Justice Rogers and Justices Zarella, Eveleigh, McDonald, Espinosa
and Vertefeuille. Thereafter, Chief Judge DiPentima was added to the panel
and she has read the record and briefs, and listened to a recording of the
oral argument prior to participating in this decision.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court and this court transferred the appeal to itself pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
General Statutes § 1-225 (a) provides in relevant part: ‘‘The meetings of
all public agencies, except executive sessions . . . shall be open to the
public. . . .’’
We note that § 1-225 was amended by No. 10-171, § 4, of the 2010 Public
Acts, which made certain changes to the statute that are not relevant to
this appeal. For purposes of clarity, we refer to the current revision of
the statute.
3
In this opinion, we refer to the commission, the newspaper and Moore
collectively as the defendants.
4
General Statutes (Supp. 2014) § 1-200 provides in relevant part: ‘‘(1)
‘Public agency’ or ‘agency’ means:
‘‘(A) Any . . . department . . . of the state . . . including any commit-
tee of, or created by, any such . . . department . . . .
‘‘(2) ‘Meeting’ means any hearing or other proceeding of a public agency
. . . to discuss or act upon a matter over which the public agency has
supervision, control, jurisdiction or advisory power. ‘Meeting’ does not
include . . . strategy or negotiations with respect to collective bar-
gaining . . . .’’
We note that the legislature has also recently made certain amendments
to § 1-200 that are not relevant to the present appeal. See Public Acts 2011,
No. 11-220, § 1; Public Acts 2013, No. 13-263, § 7. For purposes of clarity
we refer to the version of the statute codified in the 2014 supplement.
5
In view of the fact that we agree with the plaintiff on his first claim, it
is unnecessary to reach the second claim.
6
The commission adopted the proposed final decision of the hearing
officer, Victor R. Perpetua, who presided over the hearing dated November
23, 2010.
7
General Statutes § 10-153f (c) (1) provides: ‘‘On the fourth day next
following the end of the mediation session or on the one hundred thirty-
fifth day prior to the budget submission date, whichever is sooner, the
commissioner shall order the parties to report their settlement of the dispute
or, if there is no settlement, to notify the commissioner of either their
agreement to submit their dispute to a single arbitrator or the name of the
arbitrator selected by each of them. Within five days of providing such
notice, the parties shall notify the commissioner of the name of the arbitrator
if there is an agreement on a single arbitrator appointed to the panel pursuant
to subdivision (3) of subsection (a) of this section or agreement on the
third arbitrator appointed to the panel pursuant to said subdivision. The
commissioner may order the parties to appear before said commissioner
during the arbitration period. If the parties have notified the commissioner
of their agreement to submit their dispute to a single arbitrator and they
have not agreed on such arbitrator, within five days after such notification,
the commissioner shall select such single arbitrator who shall be an impartial
representative of the interests of the public in general. If each party has
notified the commissioner of the name of the arbitrator it has selected and
the parties have not agreed on the third arbitrator, within five days after
such notification, the commissioner shall select a third arbitrator, who shall
be an impartial representative of the interests of the public in general. If
either party fails to notify the commissioner of the name of an arbitrator,
the commissioner shall select an arbitrator to serve and the commissioner
shall also select a third arbitrator who shall be an impartial representative
of the interests of the public in general. Any selection pursuant to this
section by the commissioner of an impartial arbitrator shall be made at
random from among the members appointed under subdivision (3) of subsec-
tion (a) of this section. Arbitrators shall be selected from the panel appointed
pursuant to subsection (a) of this section and shall receive a per diem fee
determined on the basis of the prevailing rate for such services. Whenever
a panel of three arbitrators is selected, the chairperson of such panel shall
be the impartial representative of the interests of the public in general.’’
We note that § 10-153f was amended by No. 11-125, § 1, of the 2011 Public
Acts, which made certain changes to the statute that are not relevant to
this appeal. For purposes of clarity, unless otherwise noted, we refer to the
current revision of the statute.
8
General Statutes § 10-153f (a) provides in relevant part: ‘‘There shall be
in the Department of Education an arbitration panel of not less than twenty-
four or more than twenty-nine persons to serve as provided in subsection
(c) of this section. The Governor shall appoint such panel, with the advice
and consent of the General Assembly, as follows: (1) Seven members shall
be representative of the interests of local and regional boards of education
and shall be selected from lists of names submitted by such boards; (2) seven
members shall be representative of the interests of exclusive bargaining
representatives of certified employees and shall be selected from lists of
names submitted by such bargaining representatives; and (3) not less than
ten or more than fifteen members shall be impartial representatives of the
interests of the public in general and shall be residents of the state of
Connecticut, experienced in public sector collective bargaining interest
impasse resolution and selected from lists of names submitted by the State
Board of Education. . . . Each member of the panel shall serve a term of
two years, provided each arbitrator shall hold office until a successor is
appointed and, provided further, any arbitrator not reappointed shall finish
to conclusion any arbitration for which such arbitrator has been selected
or appointed. Arbitrators may be removed for good cause. If any vacancy
occurs in such panel, the Governor shall act within forty days to fill such
vacancy in the manner provided in section 4-19. Persons appointed to the
arbitration panel shall serve without compensation but each shall receive
a per diem fee for any day during which such person is engaged in the
arbitration of a dispute pursuant to this section. The parties to the dispute so
arbitrated shall pay the fee in accordance with subsection (c) of this section.’’
9
Prior to oral argument before this court, we directed the parties to be
prepared to address the question of whether the plaintiff was aggrieved by
the judgment of the trial court, in light of the fact that the commission’s
order lists as respondents only the department and the ‘‘Contract Arbitration
Panel.’’ Despite the failure of the commission’s order to list the individual
arbitrators as respondents, we conclude that the plaintiff is aggrieved by
the judgment and, therefore, has standing to appeal.
‘‘The fundamental test for determining [classical] aggrievement encom-
passes a well-settled twofold determination: first, the party claiming
aggrievement must successfully demonstrate a specific personal and legal
interest in the subject matter of the decision, as distinguished from a general
interest, such as is the concern of all the members of the community as a
whole. Second, the party claiming aggrievement must successfully establish
that the specific personal and legal interest has been specially and injuriously
affected by the decision.’’ (Internal quotation marks omitted.) Bongiorno
Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 539, 833 A.2d
883 (2003).
Although the commission’s order imposed a responsibility on the ‘‘respon-
dents’’ to provide a transcript, at their expense, to the complainants, the
newspaper and Moore, and the commission’s order does not list the individ-
ual arbitrators as ‘‘respondents,’’ at the time that the order was issued, the
‘‘contract arbitration panel’’ no longer existed. The panel was authorized
by § 10-153f, which provides for the creation of such panels for a single
purpose, to arbitrate a particular dispute under the TNA. Once the arbitration
proceedings were completed, there was no longer any statutory authoriza-
tion for the panel to continue to exist and function. Accordingly, the commis-
sion’s order imposed a legal obligation on the individual arbitrators, including
the plaintiff, to comply with that order.
In dismissing the appeal, the trial court recognized that the commission’s
order imposed a legal obligation on the individual arbitrators. The court
modified the commission’s order regarding the provision of the transcript
to the defendants to require the department to be solely responsible for the
cost of the transcript. The court did not, however, modify the commission’s
order insofar as it required the individual arbitrators to share with the
department the responsibility of providing the transcript to the defendants.
Because the commission’s order, as modified by the trial court, obligates
the individual members of the arbitration panel to share in the responsibility
of providing the transcript to the defendants, the plaintiff has demonstrated
that he has a specific personal and legal interest in the subject matter of
this decision, and that this interest has been specially and injuriously affected
by the decision of the commission. Accordingly, we conclude that the plain-
tiff has established aggrievement.
10
General Statutes (Supp. 2014) § 1-200 (1) (A) was formerly codified as
General Statutes (Rev. to 1991) § 1-18 (a). The only relevant differences
between the two statutes are that the current statute was amended after
this court’s decision in Election Review Committee of the Eighth Utilities
District in order to add the phrase ‘‘or created by’’ and to further clarify
that the term ‘‘judicial office’’ includes the division of Public Defender
Services. General Statutes (Supp. 2014) § 1-200 (1) (A).
As explained more fully in this opinion, we conclude that the arbitration
panel neither constitutes a committee created by the department nor, as
the trial court determined, the functional equivalent of the department,
because the arbitration pool consists of individuals placed on a list by the
governor and the panel is not selected by the department. The department
serves as a mere repository of the list. Accordingly, we conclude that the
inclusion of the term ‘‘created by’’ in § 1-200 (1) (A) is not relevant to the
present case.
11
In State Board of Labor Relations v. Freedom of Information Commis-
sion, 244 Conn. 487, 500, 709 A.2d 1129 (1998), in considering General
Statutes § 31-100, we recognized the importance of privacy in the arbitration
process. We observed that ‘‘[i]t is not disputed that arbitration conducted
with private arbitrators may be closed to the public. If proceedings before
the mediation board were required to be conducted publicly, there would
be a significant difference between arbitration before that body and privately
conducted arbitration. Indeed, the testimony at trial indicated that requiring
proceedings before the mediation board to be open to the public would
create a significant deterrent to parties considering arbitration before the
mediation board. This, in turn, would work to defeat the legislature’s goal
of providing low cost arbitration services as an effective alternative to private
arbitrators to facilitate the resolution of labor disputes.
‘‘Concomitantly, an interpretation of [General Statutes] § 1-18a (b) that
excludes grievance arbitration proceedings from the definition of meetings
does not impede the goals underlying the [FOIA]. The [FOIA] was enacted
for the purpose of assuring public access to information relating to the
activities of public agencies. Although the legislature specifically exempted
certain types of activities from the definition of meeting under § 1-18a (b),
it did not specifically mention grievance arbitration proceedings in that
subsection. We presume, however, that it enacted § 1-18a (b) with knowledge
of the existence of § 31-100. Commission on Human Rights & Opportuni-
ties v. Truelove & Maclean, Inc., [238 Conn. 337, 346–47, 680 A.2d 1261
(1996)]. It is reasonable to conclude, therefore, that the legislature decided
that the benefit associated with the confidentiality of grievance arbitration
proceedings outweighed the benefit to be derived from granting public
access to these proceedings, and, consequently, it did not amend or overrule
§ 31-100 so as to include grievance arbitration proceedings within the defini-
tion of meeting under § 1-18a (b). Thus, the exclusion of grievance arbitration
proceedings from the definition of meeting is within the contemplation of
the [FOIA].’’ Id., 500–501.
Although the statute under consideration in State Board of Labor Rela-
tions v. Freedom of Information Commission, supra, 244 Conn. 487, was
different than § 10-153f, the reasoning applies with equal force. If the legisla-
ture intended these proceedings to be public it could have easily stated so
in the statute.