Meyers v. Middlefield

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ROBERT MEYERS v. TOWN OF MIDDLEFIELD
(AC 42555)
Lavine, Prescott and Elgo, Js.*
Syllabus
The plaintiff, a building official for the defendant town of Middlefield,
appealed from the judgment of the trial court dismissing his administra-
tive appeal from the decision of the defendant’s Board of Selectmen to
terminate his employment. The plaintiff was responsible for processing
applications for certificates of occupancy and administering and enforc-
ing the state building code. The board alleged, inter alia, that during
the plaintiff’s employment as the town building official, his performance
and conduct regarding several long-standing projects was unreasonable
and that he failed to follow instructions and directives. The board alleged
that the plaintiff obstructed the issuance of a certificate of occupancy
to P Co., a company that owned a commercial ski property. Thereafter,
the board unanimously voted to terminate the plaintiff’s employment
and the plaintiff filed a complaint in the Superior Court, pursuant to
statute (§ 29-260 (c)), appealing his discharge, which the court dis-
missed. Held:
1. The trial court did not err in determining that there was substantial
evidence in the record to support the board’s decision to terminate
the plaintiff’s employment as the town’s building official: the evidence
demonstrated that the plaintiff sought to carry out his vow of never
granting P Co. a certificate of occupancy by constantly interjecting new
or resolved compliance issues whenever P. Co. was on the verge of
being issued a certificate of occupancy; moreover, there was substantial
evidence of the plaintiff’s insubordination when he abandoned his duties
by leaving an inspection against instruction, repeatedly acted outside
the scope of his role by raising matters outside his jurisdiction to obstruct
the issuance of the certificate of occupancy to P Co., and misplaced
paperwork submitted to him by P Co. on more than one occasion.
2. The plaintiff could not prevail on his claim that the trial court improperly
upheld the board’s decision to terminate his employment because the
decision violated public policy, constituting a wrongful discharge, this
claim having failed for the lack of a factual finding by the board or the
trial court that the termination of his employment was pretextual and/
or retaliatory; there was substantial evidence before the board to support
the plaintiff’s discharge on one or more of the grounds set forth in its
notice of charges, as the facts presented to the board supported a
conclusion that his dismissal was warranted for failing to perform the
duties of his office, conduct which fell within the statutorily authorized
basis in § 29-260 (b) to terminate his employment, as the record demon-
strated that the plaintiff vowed that he would never issue a certificate
of occupancy to P Co. regardless of P Co.’s compliance with the build-
ing code.
Argued September 15, 2020—officially released January 19, 2021
Procedural History
Administrative appeal from the decision of the defen-
dant’s board of selectmen terminating the plaintiff’s
employment as a building official, brought to the Supe-
rior Court in the judicial district of Middlesex and tried
to the court, Frechette, J.; judgment dismissing the
appeal, from which the plaintiff appealed to this
court. Affirmed.
Eric R. Brown, for the appellant (plaintiff).
John A. Blazi, for the appellee (defendant).
Opinion
PRESCOTT, J. The plaintiff, Robert Meyers, appeals
from the judgment of the Superior Court dismissing his
administrative appeal from the unanimous decision of
the Board of Selectmen of the Town of Middlefield
(board) to terminate his employment as the statutory
building official for the defendant, the town of Mid-
dlefield (town). On appeal, the plaintiff claims that the
court improperly (1) concluded that the decision to
terminate his employment was supported by substantial
evidence in the record and (2) upheld the decision of
the board to terminate the plaintiff’s employment
because the decision violated public policy. We disagree
and, accordingly, affirm the judgment of the court.
The record reveals the following relevant facts and
procedural history. The plaintiff was employed as a
building official1 for the town pursuant to General Stat-
utes § 29-260 (a) since April, 2011.2 As delineated in
§ 29-260 (a), the plaintiff was required to administer
and to enforce the State Building Code (building code)
in the town. The plaintiff also was responsible for pro-
cessing applications for certificates of occupancy. Jon
Brayshaw was the elected first selectman of the town
when the plaintiff commenced his employment with
the town.
In 2008, the town purchased property known as Pow-
der Ridge Mountain Park, located at 99 Powder Hill
Road in Middlefield (property). At some point during
the property’s vacancy between 2008 and 2012, the
plaintiff sent a ‘‘Notice of Unsafe Structure’’ to the town
regarding the property in which the plaintiff cited vari-
ous violations of the building code. In September, 2012,
the town sold the property to Powder Ridge Mountain
Park and Resort, LLC (company). The plaintiff there-
after rescinded the ‘‘Notice of Unsafe Structure’’ in
December, 2012.
After the purchase of the property by the company,
the plaintiff requested additional work hours and sup-
port from the town in order for him to perform his
duties with respect to other large scale construction
projects underway in the town and to assist with over-
sight of the proposed renovations to the property. In
response, the town hired another building official, Har-
wood Loomis, as a consultant, and also hired an assis-
tant building official, Vincent Garofalo, to assist the
plaintiff with the inspections of the property. The town
also later enlisted the help of other state and local
officials, including Deputy State Building Inspector
Daniel Tierney, to assist the plaintiff with processing
the application for a certificate of occupancy with
respect to the property.
In November, 2015, Edward Bailey replaced Jon
Brayshaw as the town’s first selectman. Upon assuming
his new role, Bailey became aware of ongoing conflict
between Sean Hayes, the owner of the company, and
the plaintiff. Specifically, one source of major conflict
stemmed from the plaintiff’s repeated denials of the
company’s applications for a certificate of occupancy
for a second floor restaurant, bar, and kitchen that were
located in the ski lodge on the property.
The company had begun renovating the second floor
restaurant in December, 2015. Garofalo conducted an
inspection of the second floor in December, 2015, and
concluded that a temporary certificate of occupancy
could be issued so long as a fire watch was on duty
because the sprinkler system was not yet operational.
The Middlefield Fire Department agreed to provide the
fire watch service. The plaintiff, however, denied the
company’s request for a temporary certificate of occu-
pancy, attributing the denial to the lack of an opera-
tional sprinkler system.
The plaintiff also issued an abatement order that led
to the business closing temporarily. Tierney eventually
waived the fire sprinkler requirement so that the com-
pany could receive a temporary certificate of occupancy
and reopen for business. Despite Tierney’s waiver, the
plaintiff proceeded again to deny the temporary certifi-
cate of occupancy due to the absence of the sprinkler
system. The town’s fire marshal informed the company
that the fire department no longer could provide its fire
watch services because the company did not have a
temporary certificate of occupancy.
One month later, a construction services building
official completed an inspection of the property for an
electrical permit for fire pump wiring and determined
that the building code requirements had been met.
When Garofalo advised the plaintiff that the company’s
electrical permit was ready for approval, the plaintiff
indicated to Garofalo that he would issue it. Despite
the plaintiff’s representation to Garofalo, the plaintiff
five days later raised an issue with the electrical permit
application. The plaintiff claimed that the company was
in violation of the building code because the fire pump
lacked a reliable source of power and needed an addi-
tional source of power or backup power. The plaintiff
further claimed that he could not issue an electrical
permit with the ongoing fire pump violations unless the
company submitted a modification request and received
approval from the state waiving the company’s need to
satisfy the applicable building code provision. Tierney
and other officials had informed the plaintiff that no
such modification request was required because the
company was not in violation of the building code as it
pertained to the wiring for the fire pump. After meeting
resistance from the plaintiff, Tierney suggested to the
company that it should submit a modification request,
despite not needing one, in order to avoid any further
impediments to the renovation project. The company
then submitted a modification request in February,
2016, that was subsequently approved by Tierney. After
receiving the approval, the company sought another
temporary certificate of occupancy from the plaintiff,
but, rather than issuing the temporary certificate, the
plaintiff raised another issue with the company’s prop-
erty as grounds for denying the company a temporary
certificate of occupancy.
On March 4, 2016, the plaintiff requested information
from Garofalo about an inspection of the septic pump
wiring. Garofalo informed the plaintiff that the pump
had no bearing on whether to grant a temporary certifi-
cate of occupancy because the pump was not a part of
the structure and, thus, it did not require any approval
by the building official. Nevertheless, an inspection was
completed at the plaintiff’s insistence, and the pump
passed inspection on March 7, 2016. The plaintiff
received notice of the pump inspection results, and
the company immediately requested that he issue a
certificate of occupancy. The plaintiff informed the
company that he would conduct a final walk-through
of the property the following week before issuing a
certificate of occupancy.
Before the walk-through took place, Garofalo raised
his concerns to Bailey in an e-mail about the plaintiff’s
conduct throughout the Powder Ridge renovation proj-
ect. Garofalo believed, on the basis of his observations,
that the plaintiff was using insignificant compliance
issues as a pretext for denying the company’s temporary
certificate of occupancy, that the plaintiff was not inter-
ested in compliance or assisting the company to become
compliant, and that the plaintiff was ignoring his offi-
cial duties.
The final walk-through did not take place until April
11, 2016, after which the town’s fire chief indicated that
a certificate of occupancy could be issued. In response
to an advisement by both Garofalo and the fire chief
that the certificate of occupancy should be issued, the
plaintiff stated that he could not approve the request
for a certificate of occupancy because he was not per-
mitted to attend the final walk-through and did not have
paperwork for propane tanks that were located outside
the company’s ski lodge. Tierney informed the plaintiff
that the propane tanks had no bearing on the certificate
of occupancy approval and that, even if they did, as
noted by Hayes on numerous occasions, the company
had submitted the propane tank applications in 2012
and 2013,3 and the plaintiff had failed to take any action
on those applications. On May 19, 2016, the plaintiff
referred Hayes to the Office of the State’s Attorney for
criminal prosecution for alleged building code viola-
tions at the property, citing an earlier sprinkler code
violation as the basis for the referral, despite the fact
that the sprinkler system was now compliant with the
building code. No action was taken by the Office of the
State’s Attorney.
On June 1, 2016, the company submitted another
request for a certificate of occupancy. On June 15, 2016,
the plaintiff conducted an inspection of the property.
After the inspection, in a memorandum prepared by
Bailey,4 Bailey indicated that he asked the plaintiff to
submit a report to him on the inspection by June 16,
2016, to which the plaintiff responded he could not do
so because it was an ‘‘unreasonable request.’’ Bailey
agreed to extend the deadline to June 17, 2016. In a June
16, 2016 e-mail, the plaintiff responded to the company’s
June 1, 2016 request by informing the company that he
would not issue the certificate of occupancy because
the company had not addressed the propane tank viola-
tion that the plaintiff had pointed out earlier. The plain-
tiff then submitted the inspection report to Bailey on
June 21, 2016, four days later than the June 17, 2016
deadline Bailey had set. The inspection report included
a denial of the company’s request for a certificate of
occupancy and cited, inter alia, parking lot violations
and the absence of a permit for one of the propane
tanks.
After the plaintiff’s denial of the company’s applica-
tion for a certificate of occupancy because the com-
pany’s propane tank outside the building purportedly
required a permit under the building code, Tierney
sought to clarify for the plaintiff that the propane tanks
were not within the jurisdiction of the building official.
Hayes then appealed the plaintiff’s decision by way of an
e-mail to the State Building Inspector, Joseph Cassidy,
seeking clarification regarding the provisions in the
building code relied on by the plaintiff in his denial of
the company’s application. In response to Hayes’
appeal, Cassidy sent a letter dated June 28, 2016, to
Hayes and to the plaintiff informing them that the local
fire marshal had primary jurisdiction over the propane
tanks, not the local building official, and that the instal-
lation of the tanks did not fall within the building code.
Despite Cassidy’s clarification regarding the governing
authority over propane tanks, the plaintiff continued to
disagree with Cassidy’s interpretation of the building
code.
On July 5, 2016, Tierney provided the plaintiff with
an e-mail from William Abbott, the State Fire Marshal,
to inform the plaintiff that the provisions on which he
had relied in construing the building code regarding the
propane tanks had been repealed on January 1, 2015.
The plaintiff had been relying incorrectly on a 2009
revision of the building code. Nevertheless, the plaintiff
claimed that Tierney, Cassidy, and Abbott were wrong
in their construction of the building code, which
prompted Bailey to insist that the plaintiff personally
reach out to Abbott to discuss the issue regarding the
propane tanks. The plaintiff, however, explicitly refused
to do so.
Hayes submitted another formal request to the plain-
tiff for the property’s certificate of occupancy on July
5, 2016, and also requested an inspection of the second
floor restaurant. The plaintiff told the company that he
had left a letter that was ready to be sent out by Nancy
Davidson, the land use office assistant, but Davidson
did not see such letter upon her return to the office on
July 6, 2016.5 In a memorandum written by Bailey, Bailey
indicated that the plaintiff refused to conduct the
inspection as requested by the company, stating that
he was ‘‘too busy’’ to inspect the company’s property
and ‘‘had other things to do.’’ On July 8, 2016, Hayes
reached out to state and local officials in an e-mail to
express his frustration with the issues he had faced in
the past two years in attempting to obtain a certificate
of occupancy from the plaintiff. Hayes also disclosed
in the e-mail that the plaintiff publicly had stated that
he never would sign the certificate of occupancy for
the property.
In Bailey’s final memorandum regarding his interac-
tions with the plaintiff, Bailey detailed the final incident
that led to the institution of termination proceedings
against the plaintiff. Bailey wrote that while he and
the plaintiff were at the company’s property for an
inspection on July 8, 2016, the plaintiff raised new issues
that he had never raised before. Bailey also wrote that,
during the inspection, Hayes informed the plaintiff
again that he already had submitted applications for
the propane tanks in 2012 and 2013, which were
awaiting the plaintiff’s approval. The plaintiff
responded to Hayes by stating that he did not want to
hear what Hayes had to say regarding the applications.
The plaintiff then left, indicating that he did not want
to be involved in a ‘‘hostile situation.’’ Despite Bailey’s
order that the plaintiff stay and complete the inspection,
the plaintiff left without completing the inspection. Bai-
ley placed the plaintiff on paid administrative leave on
July 12, 2016, following the incomplete inspection at
the property.
An investigation by the board into the plaintiff’s per-
formance and conduct ensued. The board consisted of
Bailey, Taryn Ruffino, and Brayshaw. Predisciplinary
hearings were held by the board thereafter, during
which the plaintiff and his union representatives6 were
allowed to respond to the concerns raised about the
plaintiff’s performance and conduct as a building offi-
cial. The predisciplinary hearings took place on August
2, October 13, November 9, and December 13, 2016.
On January 18, 2017, Bailey sent the plaintiff a written
notice stating that the board would conduct a public
hearing on January 24, 2017, to consider terminating the
plaintiff from his position. The notice also specifically
outlined the reasons why the board was considering
such action: ‘‘[1] Your failure and/or refusal to promptly
[and] reasonably perform your duties, including but not
limited to long-standing projects such as Powder Ridge.
Indeed, you allowed months to pass with little if any
follow-up to resolve such long-term projects. Your fail-
ure and/or refusal in this regard is supported by the
complaints that the [t]own has received that you have
intentionally and unjustifiably obstructed and pre-
vented Powder Ridge from obtaining a certificate of
occupancy for an extended period of time and your
own statements made on several occasions that you
will never issue such a certificate of occupancy with
respect to that project. It is further supported by your
failure to accept guidance and/or directives of state and
local officials who were assisting with resolving this
project. [2] Your failure to maintain and retain proper
documentation submitted by applicants and records of
your own actions with respect to such long-term proj-
ects such as Powder Ridge. Such documentation issues
include errors and inaccuracies and failure to provide
relevant and required backup for legal documents. [3]
Your failure to follow reasonable instructions and/or
abide by your assigned work hours including but not
necessarily limited on the following dates: January 20,
2016, April 11, 2016, May 12, 2016, May 13, 2016, May 18,
2016, and July 8, 2016. [4] Your display of inappropriate
conduct and/or insubordination on May 12, 2016, May
13, 2016, May 19, 2016 and July 8, 2016.’’
A public hearing moderated by Bruno Morasutti, the
town attorney, was conducted on January 24, 2017.
The evidence presented to the board during the public
hearing included testimony, e-mails, memoranda writ-
ten by Bailey detailing his observations, and other docu-
ments. After considering the evidence before it, in a
special meeting held on February 16, 2017, the board
unanimously voted to terminate the plaintiff from his
position as the building official with an effective termi-
nation date of February 21, 2017. The board did not
issue written findings regarding the factual basis for its
decision to terminate the plaintiff or state explicitly
which of the grounds for termination listed in the notice
of charges it deemed established.
After the termination of his employment, the plaintiff
filed a complaint with the Superior Court pursuant to
§ 29-260 (c), appealing the board’s decision to terminate
his employment. After the parties’ submitted briefs in
support of their respective positions, the court con-
ducted a hearing limited to oral argument. The court
subsequently issued a memorandum of decision in
which it concluded that the plaintiff had failed to dem-
onstrate that the board had acted improperly. In doing
so, the court first discussed the appropriate standard
of review of the board’s decision. The court noted that
there is a dearth of authority on the standard of review
for administrative appeals brought pursuant to § 29-
260. The court then determined that it should use the
standard of review applicable in appeals from decisions
of municipal zoning boards. In most circumstances,
that standard requires a reviewing court to uphold the
decision of the zoning board provided that the board
did not unreasonably, arbitrarily or otherwise abuse its
discretion, and the decision is supported by substantial
evidence. See, e.g., Rapoport v. Zoning Board of
Appeals, 301 Conn. 22, 32–34, 19 A.3d 622 (2011).
Applying that standard, the court determined that the
board did not abuse its discretion or act illegally in
deciding to terminate the plaintiff’s employment
because there was substantial evidence in the record
to support the board’s decision to terminate the plaintiff
from his position. Specifically, the court concluded that
there was substantial evidence before the board that
the plaintiff failed to perform his duties when he inten-
tionally obstructed, without justification, the issuance
of a certificate of occupancy for the property. Moreover,
the court concluded that the substantial evidence
before the board showed that the plaintiff neglected to
‘‘pass on items that fell under the building code, walked
off of an inspection of Powder Ridge,’’ and repeatedly
raised additional issues that were not under the building
code and therefore his jurisdiction, thereby leading to
an inference that the plaintiff did so in an improper
attempt to prevent the company from obtaining a certifi-
cate of occupancy. The court dismissed the plaintiff’s
appeal on January 17, 2019.
This appeal followed. Additional facts will be set forth
as necessary.
I
We first address the plaintiff’s factual challenge to
the propriety of the board’s decision to terminate his
employment pursuant to § 29-260. Specifically, the
plaintiff asserts that the court improperly determined
that there was substantial evidence in the record to
support the board’s decision to terminate his employ-
ment as the town’s building official.7 We are not per-
suaded.
At the outset, as a matter of first impression, we first
must establish the proper standard of appellate review
of the propriety of a board’s decision to terminate a
building official’s employment pursuant to § 29-260.
Section 29-260 (c) itself contains some language bearing
on the standard of review: ‘‘The court may affirm the
action of [the board] or may set [the board’s decision]
aside if it finds that [the board] acted illegally or abused
its discretion. . . .’’ General Statutes § 29-260 (c). The
statute, however, does not address the manner in which
this determination should be made.
The town asserts that this court, consistent with the
trial court’s approach, should adopt the substantial evi-
dence test typically applied in zoning appeals to review
the plaintiff’s claims on appeal. The plaintiff asserts
that, with respect to his claim that the board’s decision
to terminate his employment violates public policy, this
court should apply a de novo standard of review
because it is fundamentally a legal determination. With
respect to his factual challenge to the propriety of the
board’s decision, the plaintiff concedes that the sub-
stantial evidence standard of review should be applied,
but relies on cases applying that standard when
reviewing decisions from municipal personnel and pen-
sion appeals boards.
We conclude that we should adhere to the standard
of review set forth in administrative appeals from
municipal boards and agencies8 outside of the zoning
context. See, e.g., O’Connor v. Waterbury, 286 Conn.
732, 740–41, 945 A.2d 936 (2008) (administrative appeal
from decision of Waterbury’s retirement board). The
present appeal raises legal and factual claims that are
akin to the types of claims raised in administrative
appeals from the decisions of boards of selectmen or
similar types of administrative agencies in the employ-
ment context. See Rodgers v. Board of Education, 252
Conn. 753, 760–61, 749 A.2d 1173 (2000) (appeal from
board of education’s decision to terminate tenured
teacher’s employment); Fagan v. Stamford, 179 Conn.
App. 440, 453–55, 180 A.3d 1 (2018) (appeal from pen-
sion trust fund board’s decision to award former police
officer disability pension that was one half his annual
compensation); see also Greene v. Waterbury, 126
Conn. App. 746, 749–50, 12 A.3d 623 (2011) (appeal from
retirement board’s denial of former firefighter’s request
to resubmit disability pension application).9
Accordingly, to the extent that the plaintiff challenges
the factual conclusions of the board, we review his
claims pursuant to the substantial evidence standard
set forth in O’Connor: ‘‘[R]eview of an administrative
agency decision requires a court to determine whether
there is substantial evidence in the administrative
record to support the agency’s findings of basic fact
and whether the conclusions drawn from those facts
are reasonable. . . . Neither this court nor the trial
court may retry the case or substitute its own judgment
for that of the administrative agency on the weight of
the evidence or questions of fact. . . . Our ultimate
duty is to determine, in view of all of the evidence,
whether the agency, in issuing its order, acted unreason-
ably, arbitrarily, illegally or in abuse of its discretion.
. . .
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding . . . . An admin-
istrative finding is supported by substantial evidence if
the record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . The
substantial evidence rule imposes an important limita-
tion on the power of the courts to overturn a decision
of an administrative agency . . . . It is fundamental
that a plaintiff has the burden of proving that the [munic-
ipal board], on the facts before [it], acted contrary to
law and in abuse of [its] discretion . . . . The law is
also well established that if the decision of the [munici-
pal board] is reasonably supported by the evidence it
must be sustained. . . . This substantial evidence stan-
dard is highly deferential and permits less judicial scru-
tiny than a clearly erroneous or weight of the evidence
standard of review.’’ (Citations omitted; internal quota-
tion marks omitted.) O’Connor v. Waterbury, supra,
286 Conn. 741–42
Before discussing the evidence in the record, it is
important to emphasize that the board gave notice of
several bases on which it was considering termination.
As we previously discussed, on January 18, 2017, the
town sent the plaintiff a notice that listed the reasons
why the board was considering his dismissal. Specifi-
cally, the notice indicated that the plaintiff had (1) failed
and/or refused to promptly and reasonably perform his
duties, including but not limited to long-standing proj-
ects such as Powder Ridge, where the plaintiff allowed
months to pass with little if any follow-up to resolve
such long-term projects, (2) failed to maintain and to
retain proper documentation submitted by applicants
and records of his own actions with respect to such
long-term projects as Powder Ridge, including docu-
mentation of errors and inaccuracies and a failure to
provide relevant and required backup for legal docu-
ments, (3) failed to follow reasonable instructions and/
or to abide by his assigned work hours including but
not limited to January 20, April 11, May 12, May 13,
May 18 and July 8, 2016, and (4) displayed inappropriate
conduct and/or insubordination on May 12, May 13, May
19, and July 8, 2016.
Moreover, it is important to emphasize that the board
did not issue written findings regarding the factual basis
for its decision to terminate the plaintiff’s employment
or state explicitly which of the grounds for termination
listed in the notice of charges it deemed established.
With respect to the lack of written findings of fact by
the board, the plaintiff failed to pursue a number of
potential avenues to remedy this problem. First, the
plaintiff failed to request, as permitted by § 29-260 (c),
that the court take additional evidence or testimony.
The plaintiff also failed to request that the court
‘‘appoint a referee or a committee to take such evidence
as the court may direct and report the same to the
court with his or its findings of fact, which report shall
constitute a part of the proceedings upon which the
determination of the court shall be made.’’ General Stat-
utes § 29-260 (c). Finally, the plaintiff could have
requested that the court, while maintaining its jurisdic-
tion over the appeal, remand the case to the board so
that the board could issue written factual findings. See,
e.g., Hartford v. Hartford Electric Light Co., 172 Conn.
71, 73, 372 A.2d 131 (1976) (reviewing court authorized
to remand matter to administrative agency for addi-
tional findings); Commission on Human Rights &
Opportunities v. Hartford, 138 Conn. App. 141, 154
n.9, 50 A.3d 917 (reviewing court authorized to remand
matter to agency for articulation of factual findings),
cert. denied, 307 Conn. 929, 55 A.3d 570 (2012). The
plaintiff, however, failed to pursue any of the described
avenues, thereby limiting the scope of our review of
the board’s decision. Thus, if we find substantial evi-
dence to support any of the alleged grounds for dis-
missal, then we must affirm the board’s decision to
terminate the plaintiff’s employment. See, e.g., Samperi
v. Inland Wetlands Agency, 226 Conn. 579, 587–88, 628
A.2d 1286 (1993) (‘‘[a] reviewing court must sustain the
agency’s determination if an examination of the record
discloses [substantial] evidence that support any one of
the reasons given’’ (internal quotation marks omitted));
Keiser v. Conservation Commission, 41 Conn. App.
39, 42, 674 A.2d 439 (1996) (‘‘[I]t is improper for the
reviewing court to reverse an agency decision simply
because [the] agency failed to state its reasons for its
decision on the record. The reviewing court instead
must search the record of the hearings before the com-
mission to determine if there is an adequate basis for
its decision.’’ (Internal quotation marks omitted.)).
Because the board made no explicit findings as to which
of these grounds had been proven, and the plaintiff
has failed to take steps to remedy the lack of specific
findings, we review the evidence that was before the
board to determine whether there was substantial evi-
dence to support the board’s decision to dismiss the
plaintiff on the basis of any of the grounds set forth in
the notice.
On appeal, the plaintiff seeks to reduce the reason
for his dismissal by the board as a termination rooted
in a mere disagreement about the interpretation of the
building code provisions and political corruption. A
review of the evidence that was before the board, and
which we must assume the board credited, tells a differ-
ent story.
The record contains evidence that the plaintiff stated
on more than one occasion that he would never grant
the company a certificate of occupancy. The board was
free to infer from this evidence that the plaintiff would
continue to refuse to issue a certificate of occupancy for
the property even if the company was in full compliance
with the exact letter of the building code. Such conduct,
of course would constitute an abject failure of the build-
ing official ‘‘to perform the duties of his office’’ within
the meaning of § 29-260 (b).
The board’s conclusion that the plaintiff would never
issue a certificate of occupancy to the company even
if the property was in full compliance with the building
code is buttressed by not just the plaintiff’s words but
also his conduct. For example, Garofalo had found it
appropriate for the restaurant to be granted a temporary
certificate of occupancy after his and Tierney’s inspec-
tion in January, 2016. Garofalo had approved the grant
of the temporary certificate of occupancy after the local
fire department offered to provide fire watch services
because the sprinkler system was not operational. Nev-
ertheless, the plaintiff decided to ignore Garofalo’s find-
ings and issued a notice of violation to the company
and ordered closure of the restaurant on January 15,
2016. Moreover, even though Tierney granted the com-
pany a waiver of the sprinkler system requirement on
January 19, 2016, the plaintiff issued a second notice
of violation to the company on January 21, 2016, on the
basis of the very sprinkler system for which Tierney
had issued a waiver. Accordingly, there was no valid
basis for the second notice of violation, and the board
reasonably could have concluded that the plaintiff’s
conduct is a clear reflection of his desire to impede the
company from ever receiving a certificate of
occupancy.
In an even more telling act of interference with the
company’s legitimate efforts to obtain a certificate of
occupancy, the plaintiff referred the company’s owner
for criminal prosecution months later on May 19, 2016,
based on the very sprinkler system issue that the com-
pany already had resolved and for which it previously
had received a waiver.
In furtherance of his stated goal, the plaintiff raised
other issues outside the purview of the building code as
a pretext for repeated denials. For instance, the plaintiff
frustrated the issuance of a temporary certificate of
occupancy by requiring an inspection of the septic
pump wiring, even after Garofalo informed the plaintiff
that the pump was not a part of the structure and thus
did not need to be inspected in order for the plaintiff to
issue a temporary certificate of occupancy. In response,
the company had the pump wiring inspected even
though it was not necessary to do so. Nonetheless,
although the pump wiring underwent and passed
inspection, the plaintiff still refused to grant the com-
pany’s renewed request for a certificate of occupancy
even after the plaintiff received notice of the favorable
septic pump inspection results.
Additionally, on April 6, 2016, the Middlefield fire
chief recommended that a certificate of occupancy
should be issued for the second floor restaurant and
bar at the property after finding that the company had
met the necessary requirements. After a final walk-
through on April 11, 2016, with Garofalo and other offi-
cials, Garofalo sent an e-mail the next day to the plaintiff
and the other parties involved that all outstanding issues
with the restaurant had been resolved and a certificate
of occupancy should be issued for the restaurant and
bar. The plaintiff again denied the company’s request
for the certificate of occupancy in a letter sent to the
company on April 20, 2016, citing as grounds for the
denial that he was not allowed to attend the inspection
and noting the propane tank permit issue, even though
the propane tanks had no bearing on issuing the certifi-
cate of occupancy.
On June 1, 2016, the company again requested a certif-
icate of occupancy in an e-mail to the plaintiff. The
plaintiff completed another inspection of the property
on June 15, 2016, and sent a certificate of occupancy
report to Hayes on June 17, 2016, refusing to grant a
certificate of occupancy. The plaintiff cited purported
violations that were outside the second floor restaurant
and bar such as parking lot violations and a purported
propane tank violation. The plaintiff also insisted that
the propane tanks were within the purview of the build-
ing code despite being told otherwise by Cassidy,
Abbott, and Tierney. Even though the plaintiff dwelled
on the purported lack of propane tank permits, the
company actually had submitted permit applications on
two separate occasions in 2013 and 2014, on which
the plaintiff had failed to act and also apparently had
misplaced. The evidence of the plaintiff’s unwillingness
or inability to account for the applications previously
submitted to the plaintiff by the company supports the
board’s decision to terminate the plaintiff’s employment
for failing to maintain and to retain proper documenta-
tion submitted by applicants, as alleged in the notice
of charges. This evidence is also consistent with the
plaintiff’s statements that he would never issue a certifi-
cate of occupancy to the company.
Finally, on July 8, 2016, during the last inspection
that was requested by the company, the plaintiff chose
to leave mid-inspection and failed to complete the
inspection because he did not want to answer the own-
er’s questions regarding the propane permit applica-
tions that had been submitted to the plaintiff but on
which the plaintiff had yet to act. The plaintiff chose to
abandon his duties by leaving the site of the inspection
despite being instructed by Bailey to complete the
inspection. The plaintiff’s decision to ignore Bailey’s
directive is evidence that supports the board’s decision
to terminate the plaintiff’s employment for insubordina-
tion and for failure to abide by his assigned work hours.
In sum, there is substantial evidence in the record
that tends to demonstrate that the plaintiff sought to
carry out his stated vow of never granting the company
a certificate of occupancy by constantly interjecting
new or resolved compliance issues whenever the com-
pany was on the verge of being issued a certificate of
occupancy. The plaintiff also frustrated the application
process with collateral matters and misplaced
paperwork submitted to him by the company on more
than one occasion. Furthermore, the record contains
substantial evidence of the plaintiff’s insubordination
when he abandoned his duties by leaving the inspection
against Bailey’s instruction and also repeatedly acted
outside the scope of his role by raising matters outside
his jurisdiction to obstruct the issuance of the certifi-
cate of occupancy.
Consequently, because one of the main functions of
the plaintiff’s role was to issue a certificate of occu-
pancy for those buildings that complied with the build-
ing code, there was substantial evidence presented to
the board to support a conclusion that the plaintiff
failed to perform his duties when he stated he would
never issue the company a certificate of occupancy
and repeatedly denied the company’s application for a
temporary certificate of occupancy and a certificate of
occupancy despite the company’s compliance with the
building code. Because there was substantial evidence
adduced at the hearing to support the board’s decision
to terminate the plaintiff’s employment on at least one
of the grounds set forth in the notice, we conclude that
the court properly rejected the plaintiff’s attack on the
factual determinations implicitly made by the board.
II
The plaintiff next claims that the court improperly
upheld the decision of the board to terminate his
employment because the decision violated public pol-
icy, thereby, constituting a wrongful discharge. Specifi-
cally, the plaintiff argues that he was wrongfully dis-
charged because his discharge contravened a clear
public policy of the state to promote public safety by
requiring a building official to ensure full compliance
with the building code and to ‘‘be free of political or
commercial pressures or considerations in rendering
his decisions regarding compliance with the building
code.’’ In the plaintiff’s view, the board’s decision to
discharge him from his position for the reasons set
forth in the notice of charges was pretextual. Instead,
the plaintiff attempts to characterize the action of the
board as an improper attempt to ensure that the redevel-
opment of the property was successful and that the
property returned to the municipal tax rolls. The plain-
tiff argues that any dispute about his application of the
building code should not have been resolved by the
termination of his employment but, instead, addressed
through the proper statutory appeal procedures set
forth in General Statutes §§ 29-252 (d)10 and 29-266.11
We are not persuaded by his public policy claim for the
reasons that follow.
At the outset, it is important to note that the plaintiff’s
public policy claim is rooted doctrinally in two distinct
types of cases. First, the plaintiff relies on our Supreme
Court’s decision in Sheets v. Teddy’s Frosted Foods,
Inc., 179 Conn. 471, 427 A.2d 385 (1980). In Sheets, a
wrongful employment termination case, the court con-
sidered whether public policy limits an employer’s right
to terminate an at-will employee’s position where the
employee alleges a retaliatory discharge. The plaintiff
in Sheets alleged that his employer terminated his at-
will employment in retaliation for the plaintiff’s insis-
tence that the employer adhere to requirements
imposed by a certain food labeling statute. Id., 473. The
court was faced with determining whether an ‘‘excep-
tion to the traditional rules governing employment at
will’’ should be recognized ‘‘so as to permit a cause
of action for wrongful discharge where the discharge
contravenes a clear mandate of public policy.’’ Id., 474.
The plaintiff’s reliance on Sheets in maintaining his
argument that the board’s decision to terminate his
employment was illegal and violated public policy is
misplaced. The plaintiff in Sheets had little protection
from an improper discharge because he was an at-will
employee. In the present case, the plaintiff is not an at-
will employee who can be fired for virtually any reason
but instead is protected by the safeguards contained in
§ 29-260 (b) that permit the termination of his employ-
ment if he ‘‘fails to perform the duties of his office
. . . .’’ Additionally, the plaintiff enjoyed the protec-
tions of a collective bargaining agreement12 and thus
could only be terminated for just cause. ‘‘ ‘Just cause’
substantially limits employer discretion to terminate,
by requiring the employer, in all instances, to proffer
a proper reason for dismissal, by forbidding the
employer to act arbitrarily or capriciously.’’ Sheets v.
Teddy’s Frosted Foods, Inc., supra, 179 Conn. 475.
Unlike in Sheets, in which the court decided to formu-
late judicial protections for an at-will employee who
otherwise would have no recourse when faced with an
improper retaliatory discharge; id., 477; the plaintiff in
the present case does not need the protection of a
public policy exception that prevents an employer from
terminating an employee’s employment because he
already is entitled to the statutory and collective bar-
gaining protections that apply to him.
The plaintiff’s public policy claim also is grounded
in a second line of authority that permits a reviewing
court to overturn a decision of an arbitrator in an
employment matter if the arbitrator’s decision violates
public policy. See, e.g., Burr Road Operating Co. II,
LLC v. New England Health Care Employees Union,
District 1199, 316 Conn. 618, 630–31, 114 A.3d 144(2015). As we recently stated, ‘‘[t]o determine whether
an arbitration award must be vacated for violating pub-
lic policy, we employ a two-pronged analysis. . . .
First, we must determine whether the award implicates
any explicit, well-defined, and dominant public policy.
. . . To identify the existence of a public policy, we
look to statutes, regulations, administrative decisions,
and case law. . . . Second, if the decision of the arbi-
trator does implicate a clearly defined public policy,
we then determine whether the contract, as construed
by the arbitration award, violates that policy.’’ (Internal
quotation marks omitted.) Bridgeport Board of Educa-
tion v. NAGE, Local RI-200, 160 Conn. App. 482, 491,
125 A.3d 658 (2015). ‘‘A court’s refusal to enforce an
arbitrator’s award under a collective-bargaining agree-
ment because it is contrary to public policy is a specific
application of the more general doctrine, rooted in the
common law, that a court may refuse to enforce con-
tracts that violate law or public policy.’’ United
Paperworkers International Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29, 42, 108 S. Ct. 364, 98 L. Ed. 2d 286(1987).
The present appeal, of course, does not arise from
an arbitration proceeding involving a consensual resolu-
tion of the contractual rights of the parties. Instead,
the underlying administrative proceeding is statutorily
authorized and governed by the standards and proce-
dures dictated by the legislature in § 29-260. If the
board’s decision to terminate the plaintiff’s employment
for failing to discharge the duties of his office was
determined by a court to be ‘‘illegal’’ because it violated
or undermined the plaintiff’s rights or some well estab-
lished public policy, then the plaintiff would undoubt-
edly be entitled to a reversal of the board’s decision.
In other words, the plaintiff’s reliance on the arbitration
cases is misplaced and, more importantly, unnecessary,
because the legislature has authorized a reviewing court
to reverse a board’s decision if it is ‘‘illegal.’’
The fundamental flaw in the plaintiff’s public policy
claim is that it lacks the necessary factual predicate,13
that is, a factual finding by the board or the Superior
Court that the town’s termination of the plaintiff’s
employment was pretextual and/or retaliatory. Indeed,
if the facts as found by the board, or by the Superior
Court pursuant to § 29-260 (c), were that the plaintiff
should be terminated from his position because he had
performed his duties by raising legitimate issues with
town officials about the meaning, application, and
enforcement of the building code as it relates to the
property, he would be well-placed to assert that his
dismissal was illegal.
For the reasons set forth in part I of this opinion,
there was substantial evidence before the board to sup-
port the plaintiff’s discharge on one or more of the
grounds set forth in its notice of charges. The facts
presented to the board amply supported a conclusion
that his dismissal was warranted for failing to discharge
the duties of his office. We emphasize that substantial
evidence was presented to support a conclusion that
the plaintiff had vowed that he would never issue a
certificate of occupancy to the company regardless of
the company’s compliance with the building code. Such
conduct squarely falls within the statutorily authorized
basis to terminate his employment: a failure ‘‘to perform
the duties of his office . . . .’’ General Statutes § 29-
260 (b). Consequently, the plaintiff’s public policy claim
fails for the lack of the necessary factual predicate.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The terms ‘‘building official’’ and ‘‘building inspector’’ are used inter-
changeably by the parties. We use ‘‘building official’’ throughout this opinion
to comport with the language of General Statutes § 29-260.
2
General Statutes § 29-260 provides in relevant part: ‘‘(a) The chief execu-
tive officer of any town, city or borough . . . shall appoint an officer to
administer the code for a term of four years . . . . Such officer shall be
known as the building official. . . .
‘‘(b) Unless otherwise provided by ordinance, charter or special act, a
local building official who fails to perform the duties of his office may be
dismissed by the local appointing authority . . . provided, prior to such
dismissal, such local building official shall be given an opportunity to be
heard in his own defense at a public hearing in accordance with subsection
(c) of this section.
‘‘(c) No local building official may be dismissed under subsection (b) of
this section unless he has been given notice in writing of the specific grounds
for such dismissal and an opportunity to be heard in his own defense,
personally or by counsel, at a public hearing before the authority having
the power of dismissal. Such public hearing shall be held not less than five
or more than ten days after such notice. Any person so dismissed may
appeal within thirty days following such dismissal to the superior court for
the judicial district in which such town, city or borough is located. . . .
The court shall review the record of such hearing and if it appears that
testimony is necessary for an equitable disposition of the appeal, it may
take evidence or appoint a referee or a committee to take such evidence
as the court may direct and report the same to the court with his or its
findings of fact, which report shall constitute a part of the proceedings upon
which the determination of the court shall be made. The court may affirm
the action of such authority or may set the same aside if it finds that such
authority acted illegally or abused its discretion. . . .’’
3
Although the owner, Hayes, stated in his communications with the plain-
tiff that the applications were submitted in 2012 and 2013, the record shows
they were actually submitted in 2013 and 2014.
4
Bailey documented his interactions with the plaintiff in numerous mem-
oranda.
5
Davidson made a handwritten notation on the e-mail sent by the plaintiff
that she had not seen a letter at her desk from the plaintiff upon her return
to the office on July 6, 2016.
6
The plaintiff was protected by a collective bargaining agreement with the
AFSCME Council 4, Local 818 union. A provision in the collective bargaining
agreement provided that the plaintiff could be terminated from his position
as a building official only for just cause.
7
In his brief on appeal, the plaintiff set forth his claims in a different
order. For the sake of convenience, we discuss the plaintiff’s claims in
reverse order.
8
The Uniform Administrative Procedure Act (UAPA), codified at General
Statutes § 4-166 et seq., by its terms does not apply to appeals from municipal
administrative agencies. An appeal is governed by the UAPA only if the
aggrieved party is appealing a final decision of a ‘‘state board, commission,
department or officer authorized by law to make regulations or to determine
contested cases . . . .’’ (Emphasis added.) General Statutes § 4-166 (1); see
also General Statutes § 4-183 (a).
9
In determining the appropriate standard of review, we decline to rely
on municipal land use appeals, as the trial court did here, for a source of
those standards of review. Although there may be significant similarities
between the standards of review applied in land use cases and other types
of appeals from municipal agencies, we recognize that land use proceedings
are highly regulated and may involve different standards of review in certain
contexts such as affordable housing appeals. See chapter 124 of the General
Statutes; compare Property Group, Inc. v. Planning & Zoning Commission,
226 Conn. 684, 697–98, 628 A.2d 1277 (1993), with River Bend Associates,
Inc. v. Zoning Commission, 271 Conn. 1, 21–25, 856 A.2d 973 (2004).
10
General Statutes § 29-252 (d) provides: ‘‘The State Building Inspector
or his designee shall review a decision by a local building official or a board
of appeals appointed pursuant to section 29-266 when he has reason to
believe that such official or board has misconstrued or misinterpreted any
provision of the State Building Code. If, upon review and after consultation
with such official or board, he determines that a provision of the code has
been misconstrued or misinterpreted, he shall issue an interpretation of
said code and may issue any order he deems appropriate. Any such determi-
nation or order shall be in writing and be sent to such local building official
or board by registered mail, return receipt requested. Any person aggrieved
by any determination or order by the State Building Inspector under this
subsection may appeal to the Codes and Standards Committee within four-
teen days after mailing of the decision or order. Any person aggrieved by
any ruling of the Codes and Standards Committee may appeal in accordance
with the provisions of subsection (d) of section 29-266.’’
11
General Statutes § 29-266 provides in relevant part: ‘‘(a) A board of
appeals shall be appointed by each municipality. . . .
‘‘(b) When the building official rejects or refuses to approve the mode or
manner of construction proposed to be followed or the materials to be used
in the erection or alteration of a building or structure, or when it is claimed
that the provisions of the code do not apply or that an equally good or more
desirable form of construction can be employed in a specific case, or when
it is claimed that the true intent and meaning of the code and regulations
have been misconstrued or wrongly interpreted, or when the building official
issues a written order under subsection (c) of section 29-261, the owner of
such building or structure . . . may appeal in writing from the decision of
the building official to the board of appeals. When a person other than such
owner claims to be aggrieved by any decision of the building official, such
person . . . may appeal, in writing, from the decision of the building official
to the board of appeals . . . .
‘‘(c) If, at the time that a building official makes a decision under subsec-
tion (b) of this section, there is no board of appeals for the municipality in
which the building official serves, a person who claims to be aggrieved by
such decision may submit an appeal, in writing, to the chief executive officer
of such municipality. If . . . the municipality fails to appoint a board of
appeals . . . such officer shall file a notice of such failure with the building
official from whom the appeal has been taken and, prior to such filing, mail
a copy of the notice to the person taking the appeal. Such person may
appeal the decision of the building official to the Codes and Standards
Committee . . . . If the municipality succeeds in appointing a board of
appeals, the chief executive officer of the municipality shall immediately
transmit the written appeal to such board, which shall review the appeal
in accordance with the provisions of subsection (b) of this section.
‘‘(d) Any person aggrieved by any ruling of the Codes and Standards
Committee may appeal to the superior court for the judicial district where
such building or structure has been or is being erected.’’
12
‘‘Collective bargaining agreements ordinarily contain provisions prohib-
iting dismissal without ‘cause’ or ‘just cause’ which now serve to protect a
significant portion of the work force from groundless dismissal.’’ Magnan
v. Anaconda Industries, Inc., 193 Conn. 558, 563–64, 479 A.2d 781 (1984).
13
Citing Schoonmaker v. Cummings & Lockwood of Connecticut, P.C.,
252 Conn. 416, 429 n.7, 747 A.2d 1017 (2000), and other arbitration cases,
the plaintiff asserts that this court, in reviewing his public policy claim,
should exercise de novo review of the board’s decision. We disagree.
Although the question of whether an ‘‘explicit, well-defined, and dominant
public policy’’ exists is a legal question subject to plenary review; (internal
quotation marks omitted) Bridgeport Board of Education v. NAGE, Local
RI-200, supra, 160 Conn. App. 491; the factual question of whether the
employer dismissed the employee for a legitimate reason that does not
implicate or transgress the identified public policy is subject to more deferen-
tial review. In the context of an administrative appeal pursuant to § 29-260,
that standard of review invokes the substantial evidence test as described
in part I of this opinion.