Glastonbury Education Ass'n v. Freedom of Information Commission

Peters, C. J.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that, in the circumstances of this case, compulsory arbitration proceedings under the Teacher Negotiation Act (TNA); General Statutes § 10-153a et seq.; are exempt from the public meeting requirement of the Freedom of Information Act (FOIA); General Statutes §§ l-18a and 1-21;¹ because they constitute “strategy or negotiations with respect to collective bargaining.” The complainants, Kathleen Stack and James Hallas, the editor and the publisher of the Glastonbury Citizen newspaper, filed a complaint with the freedom of information commission (FOIC) after Stack had been denied admission to an arbitration proceeding between the plaintiff Glastonbury Education Association (GEA) and the Glastonbury Board of Education (board). The FOIC determined that Stack improperly had been denied access to the arbitration hearing. The plaintiffs, the GEA, the commissioner of education and the arbitrators, appealed from the FOIC decision to the Superior Court pursuant to General Statutes §§ l-21i (b) and 4-183 (a).² The Superior Court sustained the appeal, and the Appellate Court affirmed. Glastonbury Education Assn. v. Freedom of Information Commission, 35 Conn. App. 111, 643 A.2d 1320 (1994). We granted certification to appeal from the judgment of the Appellate Court, limited to the issue: “Do binding interest arbitration proceedings conducted pursuant to General Statutes §§ 10-153a through 10-153n fall within the exemption from public disclosure [for strategy or negotiations with respect to collective bargaining] contained in General Statutes § l-18a (b)?” Glastonbury Education Assn. v. Freedom of Information Commission, 231 Conn. 922, 648 A.2d 162 (1994). Because we conclude that at least part of such a hearing may be closed to the public under the “strategy or negotiations” provision of § l-18a (b), we affirm the judgment of the Appellate Court.³

The record reveals the following facts. After the GE A and the board had failed to reach agreement on a new union contract, compulsory binding arbitration was imposed by the commissioner of the department of education pursuant to General Statutes § 10-153Í.⁴ On December 8, 1990, an arbitration hearing was held to allow each side to present its “last best offer” and evidence and argument in favor of its position. See General Statutes § 10-153Í (c) (2). Stack sought to attend this hearing, but was denied admission by the arbitration panel.

Stack and Hallas filed a eomplaint with the FOIC against the board and the arbitration panel.⁵ After a contested hearing, the FOIC found that although the “purpose of the [arbitration] hearing was to allow the [board] and the [GEA] to each present a ‘last best contract’ offer and to submit evidence and argument on behalf of their positions,” “the parties . . . can negotiate an agreement on their own with respect to any of the disputed issues, prior to the determination of the respondent panel . . . .” The FOIC concluded that “although [such] hearings may and often do lead to further negotiation, the aetual arbitration hearing in this case . . . constituted a meeting within the meaning of $ l-18a (b), which should have been open to the public pursuant to § 1-21 . . . .” The FOIC determined that the hearing must be open unless the GEA, the board and the arbitrators “provefd] . . . that collective bargaining negotiations actually occurred during the hearing in question.” It found that the parties had failed to meet this burden.

The GEA, the commissioner of education and the arbitration panel appealed to the trial court, which sustained their appeal. That court held that, because compulsory arbitration proceedings are a continuation of strategy and negotiations with respect to collective bargaining, they do not constitute “meetings” pursuant to § l-18a (b) and thus they need not be open to the pub-lie. On appeal from the trial court, the Appellate Court affirmed the judgment and the reasoning of the trial court. Glastonbury Education Assn. v. Freedom of Information Commission, supra, 35 Conn. App. 118-19. Viewing compulsory arbitration under the TNA as a part of the collective bargaining process, the Appellate Court held that such arbitration is excluded from the definition of “meeting” contained in the FOIA. Id.

The FOIC challenges the Appellate Court’s conclusion that the relationship between compulsory binding arbitration hearings and collective bargaining automatically excludes such hearings in their entirety from the ambit of “meetings” of government agencies that are presumptively open to the public under § 1-21 (a). The statutory exclusion from the open meeting requirement contained in § l-18a (b) provides that “ ‘[mjeeting’ shall not include . . . strategy or negotiations with respect to collective bargaining . ...” In the view of the FOIC, the legislature intended this exclusion to encompass only those aspects of any collective bargaining process, including compulsory binding arbitrations, that directly involve strategy or negotiations. Although we agree with the FOIC in part, on the present record we affirm the judgment of the Appellate Court.

This appeal raises two interrelated issues of statutory construction. What is the scope of the exclusion for collective bargaining contained in § l-18a (b)?⁶ To what extent are compulsory arbitration proceedings under the TNA properly characterized as collective bargaining and as strategy or negotiations relating thereto?

Inquiry into the scope of the statutory exclusion for collective bargaining contained in § l-18a (b) must commenee with the recognition of the legislature’s general commitment to open governmental proceedings. “The overarching legislative policy of the FOIA is one that favors ‘the open conduct of government and free public access to government records.’ ” Perkins v. Freedom of Information Commission, 228 Conn. 158, 166, 635 A.2d 783 (1993), citing Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980); see also Board of Education v. Freedom of Information Commission, 208 Conn. 442, 450, 545 A.2d 1064 (1988) (“general policy of openness expressed in the FOIA legislation”). The sponsors of the FOIA understood the legislation to express the people’s sovereignty over “the agencies which serve them”; see Wilson v. Freedom of Information Commission, supra, 328, citing 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3911, remarks of Representative Martin Burke; and this court consistently has interpreted that expression to require diligent protection of the public’s right of access to agency proceedings. “Our construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed.” Gifford v. Freedom of Information Commission, 227 Conn. 641, 651, 631 A.2d 252 (1993); Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992); see also Kureczka v. Freedom of Information Commission, 228 Conn. 271, 277, 636 A.2d 777 (1994); Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992); Rose v. Freedom of Information Commission, 221 Conn. 217, 232, 602 A.2d 1019 (1992); Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Wilson v. Freedom of Information Commission, supra, 328-29.

In light of these principles, the statutory definition of public meetings contained in § l-18a (b) must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings. Accordingly, the language providing that public meetings “shall not include . . . strategy or negotiations with respect to collective bargaining” means, as the FOIC maintains, that what is excluded from the term “meeting” is not all collective bargaining, but only “strategy or negotiations” sessions that relate to collective bargaining. This interpretation accords proper respect for the manifest legislative policy expressed in the FOIA. It also comports with its legislative history, which suggests that the collective bargaining exception was understood to provide privacy for “the give-and-take in negotiating sessions of collective bargaining . . . .” (Emphasis added.) 18 H.R. Proc., supra, p. 3896. Had the legislature intended a broader exclusion, it could have excluded “collective bargaining” without limitation, or it could have excluded “collective bargaining, including but not limited to strategy and negotiations relating thereto.” See Bloomfield Education Assn. v. Frahm, 35 Conn. App. 384, 389, 646 A.2d 247, cert. denied, 231 Conn. 926, 648 A.2d 161 (1994). It chose neither of these options.

Our interpretation of § l-18a (b) finds further support in related provisions of the FOIA that provide limited exceptions to the public disclosure requirement for those portions of proceedings that relate to strategy or negotiations. In § l-18a (e) (2), for example, the legislature authorized a public agency to adjourn a meeting into executive session for “strategy and negotiations with respect to pending claims and litigation” to which the agency itself is a party. Pointedly, the legislature did not adopt a more sweeping approach, such as closing the entire meeting, to achieve its purpose of sheltering specified components of the proceedings from public scrutiny. See Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190, 470 A.2d 1209 (1984) (agency’s authority under § l-18a [e] [1] to adjourn into executive session for deliberations during proceedings about public employee’s job performance does not include authority to conduct evidentiary portion of proceedings in private). Similarly, the legislature has exempted from public disclosure not all documents relating to collective bargaining, but only “records, reports and statements of strategy or negotiations with respect to collective bargaining.” General Statutes § 1-19 (b) (9). Although the legislature’s narrowly tailored approach to the FOIA exclusions and exemptions may add a layer of complexity to agency administration, the legislature implicitly has decided that the associated costs are outweighed by the benefits derived from open government.

With these principles in mind, we turn to the structure of the TNA. Although TNA arbitrations arise out of an initial failure to reach agreement in ordinary collective bargaining, they were designed to provide incentives for further bargaining between the parties. The TNA establishes a sequence of increasingly formal collective bargaining procedures to ensure the existence of a teacher contract by the beginning of the town’s fiscal year. A board of education and representatives of the teachers’ union have a statutory duty to negotiate concerning salary and other conditions of employment. General Statutes § 10-153d (b). Those negotiations must commence no later than 210 days- prior to the budget submission date for the board. General Statutes § 10-153d (b). If a complete negotiated settlement has not been reached by 160 days prior to the submission date, the statutes mandate that the parties proceed to mediation. General Statutes § 10-153Í (b). Finally, if mediation has not settled all remaining disputes by 135 days prior to the submission date, the statute imposes mandatory last best offer arbitration.⁷ General Statutes § 10-153f (c) (1). After a hearing at which each party may present all relevant evidence, the arbitral panel “shall resolve separately each individual disputed issue by accepting the last best offer thereon of either of the parties. . . .” General Statutes § 10-153Í (c) (4). The arbitral panel also is required to include in its decision any agreements previously arrived at by the parties. General Statutes § 10-153Í (c) (4).

The issue raised by this three-step collective bargaining process is how to fit the process into the open meetings provisions of the FOIA. The various steps contemplated by the TNA could be construed as establishing a structural division between “negotiation,” which occurs at step one, and “arbitration,” which occurs at step three and occurs only if both negotiation and mediation have failed to result in a contract. Such a construction of the TNA would not comport, however, with the underlying realities of the TNA process.

The TNA contemplates arbitration proceedings that interface with collective bargaining between the parties and collective bargaining’s attendant “strategy and negotiations.” The TNA permits the arbitration proceedings to be continued, at the discretion of the arbitrators, provided that the arbitration hearing concludes within twenty-five days after its commencement. General Statutes § 10-153Í (c) (3). The apparent purpose of this provision is to afford the parties an opportunity to pursue further negotiations on their own even after compulsory arbitration has commenced, if the arbitration panel believes that such negotiations could prove fruitful. Even when not formally recessed for “negotiations,” the arbitration hearing itself contains elements of strategy and negotiations.

Uncontradicted evidence in the record before the FOIC documents that a TNA arbitration does not operate as a typical quasi-judicial process, but rather as a stylized or ritualized mediated negotiation process in which the parties submit initial last best offers, interim last best offers and final last best offers. Throughout the process, the threat of the arbitration panel’s decision-making power provides a strong incentive for the parties to resolve outstanding issues.⁸ Testimony before the FOIC in this case indicated that the arbitrators “don’t receive the parties’ absolute final position until the very end of the hearing and the parties often and usually present a different position when they open the hearing . . . .”

This description comports with the general understanding of how compulsory binding interest arbitration hearings are usually conducted. One outside commentator has observed that the theory undergirding last best offer arbitration is that “the logic of the procedure would force negotiating parties to continue moving closer together in search of a position that would be most likely to receive neutral sympathy. . . . Flexible procedures of this kind, clearly designed to encourage voluntary settlements prior to, during and even after the completion of the hearing, are obviously a. hybrid of mediation and arbitration. . . . Flexible final-offer procedures . . . almost inevitably result in a proceeding which is known as mediation-arbitration, often called simply ‘med-arb’. . . . Ordinary interest arbitration is normally a somewhat judicial procedure in which the neutral [arbitrator] takes evidence and then drafts the parties’ ‘agreement’ in the loneliness of his own study. In med-arb [however] the neutral [arbitrator] customarily works out solutions in the presence of and with input from the parties.” C. Rehmus, “Interest Arbitration,” in Portrait of a Process: Collective Negotiations in Public Employment (1979) pp. 218-20. As we held recently in interpreting similar provisions of the Municipal Employees Relations Act, by requiring the arbitrators to accept revised last best offers, binding arbitration procedures facilitate further collective bargaining between the parties. International Brotherhood of Police Officers, Local 564 v. Jewett City, 234 Conn. 123, 133-34, 661 A.2d 573 (1995).

These operational characteristics of compulsory arbitration under the TNA persuade us that the actual presentation of last best offers by the parties sufficiently resembles “negotiations,” despite the fact that they occur during a proceeding denominated as “arbitration,” to be excluded from the “meeting” requirements of the FOIA. Because the FOIC order in this case determined that Stack should have been permitted to attend the entire arbitration hearing, and ordered that similar hearings in the future likewise be open to the public in their entirety, the FOIC’s unconditional order was improper as a matter of law.

We note that the TNA permits each party, in its presentations to the arbitral board, “to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its” last best offer. General Statutes § 10-153Í (c) (2). In aid of this evidentiary process, the arbitrators have the “power to administer oaths and affirmations and to issue subpoenas requiring the attendance of witnesses.” General Statutes § 31-108; see General Statutes § 10-153f (d). Thus, the arbitration hearing also provides an opportunity for the parties to create an evidentiary record on which the arbitrators can rely in making their final determination of any issues left unresolved.⁹ Since we already have concluded that the FOIC order at issue here cannot stand, we postpone to another day questions concerning the validity of a more narrowly tailored FOIC order that requires open hearings only with respect to evidentiary presentations and permits executive sessions for discussion and argument about the contents of the parties’ last best offers.

The judgment of the Appellate Court is affirmed.

In this opinion Callahan and Palmer, Js., concurred.

1 General Statutes § l-18a provides in relevant part: “definitions. As used in this chapter, the following words and phrases shall have the following meanings, except where such terms are used in a context which clearly indicates the contrary:

“(a) ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.

“(b) ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include . . . strategy or negotiations with respect to collective bargaining . . . .”

General Statutes § 1-21 provides in relevant part: “meetings of government agencies to be public. . . . (a) The meetings of all public agencies . . . shall be open to the public. . . .” The parties do not dispute that the state arbitration panel is a public agency so we do not reach this issue.

2 General Statutes § l-21i provides in relevant part: “denial of access to public records or meetings, appeals. . . .

“(b) (1) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, l-20a and 1-21 to l-21k, inclusive, may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. ...”

General Statutes § 4-183 provides in relevant part: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the ageney and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .”

3 Even though the proceedings at issue here long since have concluded, and hence there is nothing to which a remand could be directed, the appeal is not moot because of the continuing order to the plaintiffs to conduct future negotiations in accordance with the FOIC order under challenge in this appeal. As a result, the justiciable question before us relates to the plaintiffs’ future negotiations under the TNA, not to whether Stack was wrongly denied admission to any part of the arbitration hearing held on December 9,1990. The concern expressed in part III of the concurring opinion apparently is grounded in a misunderstanding of this procedural posture.

4 General Statutes § 10-153f provides in relevant part: “mediation and ARBITRATION OF DISAGREEMENTS. . . .

“(b) ... . On the one hundred sixtieth day prior to the budget submission date, the commissioner shall order the parties to report their settlement. If, on such one hundred sixtieth day, the parties have not reached agreement and have failed to initiate mediation, the commissioner shall order the parties to notify the commissioner of the name of a mutually selected mediator and to commence mediation. . . .

“(c) (1) 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. . . . If each party has notified the commissioner of the name of the arbitrator it has selected, 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. . . . 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.

“(2) The chairperson of the arbitration panel or the single arbitrator shall set the date, time and place for a hearing to be held in the school district between the fifth and twelfth day, inclusive, after such chairperson or such single arbitrator is selected. At least five days prior to such hearing, a written notice of the date, time and place of the hearing shall be sent to the board of education and the representative organization which are parties to the dispute, and, if a three-member arbitration panel is selected or designated, to the other members of such panel. Such written notice shall also be sent to the fiscal authority having budgetary responsibility or charged with making appropriations for the school district, and a representative designated by such body may be heard at the hearing as part of the presentation and participation of the board of education. At the hearing each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its positions. At the hearing a representative of the fiscal authority having budgetary responsibility or charged with making appropriations for the school district shall be heard regarding the financial capability of the school district, unless such opportunity to be heard is waived by the fiscal authority. The nonappearance of the representative shall constitute a waiver of the opportunity to be heard unless there is a showing that proper notice was not given to the fiscal authority. The chairperson of the arbitration panel or the single arbitrator shall preside over such hearing.

“(3) The hearing may, at the discretion of the arbitration panel or the single arbitrator, be continued but in any event shall be concluded within twenty-five days after its commencement.

“(4) After hearing all the issues, the arbitrators or the single arbitrator shall, within twenty days, render a decision in writing, signed by a majority of the arbitrators or the single arbitrator, which states in detail the nature of the decision and the disposition of the issues by the arbitrators or the single arbitrator. The written decision shall include a narrative explaining the evaluation by the arbitrators or the single arbitrator of the evidence presented for each item upon which a decision was rendered by the arbitrators or the single arbitrator and shall state with particularity the basis for the decision as to each disputed issue and the manner in which the factors enumerated in this subdivision were considered in arriving at such decision, including, where applicable, the specific similar groups and conditions of employment presented for comparison and accepted by the arbitrators or the single arbitrator and the reason for such acceptance. The arbitrators or the single arbitrator shall file one copy of the decision with the commissioner, each town clerk in the school district involved and the board of education and organization which are parties to the dispute. The decision of the arbitrators or the single arbitrator shall be final and binding upon the parties to the dispute unless a rejection is filed in accordance with subdivision (7) of this subsection. The decision of the arbitrators or the single arbitrator shall incorporate those items of agreement the parties have reached prior to its issuance. At any time prior to the issuance of a decision by the arbitrators or the single arbitrator, the parties may jointly file with the arbitrators or the single arbitrator, any stipulations setting forth contract provisions which both parties agree to accept In arriving at a decision the arbitrators or the single arbitrator shall give priority to the public interest and the financial capability of the town or towns in the school district, including consideration of other demands on the financial capability of the town or towns in the school district. The arbitrators or the single arbitrator shall further consider, in light of such financial capability, the following factors: (A) The negotiations between the parties prior to arbitration, including the offers and the range of discussion of the issues; (B) the interests and welfare of the employee group; (C) changes in the cost of living averaged over the preceding three years; (D) the existing conditions of employment of the employee group and those of similar groups; and (E) the salaries, fringe benefits, and other conditions of employment prevailing in the state labor market, including the terms of recent contract settlements or awards in collective bargaining for other municipal employee organizations and developments in private sector wages and benefits. The parties shall submit to the arbitrators or the single arbitrator their respective positions on each individual issue in dispute between them in the form of a last best offer. The arbitrators or the single arbitrator shall resolve separately each individual disputed issue by accepting the last best offer thereon of either of the parties, and shall incorporate in a decision each such accepted individual last best offer and an explanation of how the total cost of all offers accepted was considered. The award of the arbitrators or the single arbitrator shall not be subject to rejection by referendum. The parties shall each pay the fee of the arbitrator selected by or for them and share equally the fee of the third arbitrator or the single arbitrator and all other costs incidental to the arbitration.

“(d) The commissioner and the arbitrators 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 penalties shall apply. . . .”

5 The GEA later asked to be made a party to the proceedings before the FOIC; the FOIC granted that request.

6 The parties do not dispute that the arbitration panel convened under the TNA is a public agency for purposes of the meeting requirement of § 1-18a (b).

7 Arbitration under § 10-153f also commences upon the legislative veto of a negotiated contract; see General Statutes § 10-153d (c); or on the fourth day following the end of mediation. General Statutes § 10-153f (c) (1).

8 In interpreting a nearly identical statute, General Statutes § 7-473c, this court noted that the “primary emphasis of the legislation was to induce settlement of disputes Ay negotiation under the impetus that the most reasonable proposal would probably gain acceptance by the arbitrators.” (Emphasis added.) Carofano v. Bridgeport, 196 Conn. 623, 635, 495 A.2d 1011 (1985).

9 The statute specifically contemplates the presentation of certain financial data. General Statutes § 10-153f (c) (2) provides in relevant part: “At the hearing a representative of the fiscal authority having budgetary responsibility or charged with making appropriations for the school district shall be heard regarding the financial capability of the school district, unless such opportunity to be heard is waived by the fiscal authority. The nonappearance of the representative shall constitute a waiver of the opportunity to be heard unless there is a showing that proper notice was not given to the fiscal authority.”