DocketNumber: No. CV 96 0109502 S
Citation Numbers: 1998 Conn. Super. Ct. 8906
Judges: KENEFICK, JUDGE.
Filed Date: 8/4/1998
Status: Non-Precedential
Modified Date: 4/18/2021
Pursuant to General Statutes §
The Board's decision was mailed to the interested parties on December 22, 1995. (Return of Record [ROR], Item 27.) The plaintiff filed a timely appeal of the Board's decision pursuant to §§
The return of record reveals the following facts. The plaintiff was employed a a police officer by the Town of Colchester from March 13, 1992 until April 25, 1995. (ROR, Item 23.) On May 21, 1994 the plaintiff arrested Philip Inkel (Inkel). (ROR, Item 23.) After Inkel brought to the police barracks he informed the plaintiff that he had left his knapsack at the scene of the arrest. (ROR, Item 27.) The plaintiff returned to the scene, retrieved the knapsack, returned to the police barracks with the knapsack, and opened the knapsack so that Inkel could identify it. (ROR, Item 27.) The knapsack contained "statements and complaints regarding the [plaintiff], police reports, which the [plaintiff] believed had been taken from the employer's premises, and personal papers, which the [plaintiff] believed had been removed from a coworker's home. (ROR, Item 27.) The plaintiff returned the knapsack and some of its contents to Inkel's home, retained several of the documents, and destroyed one document — a police report regarding a robbery. (ROR, Item 27.)
The plaintiff's conduct with regard to the contents of the knapsack was in violation of the Town of Colchester's rules and regulations manual which requires an arresting officer to inventory all property confiscated during an arrest, including stole property. (ROR, Item 23.) The plaintiff failed to follow police procedures with respect to the contents of the individual's knapsack. (ROR, Item 23.)
During an ensuing police investigation, the plaintiff told the police that he destroyed the contents of the knapsack pursuant to the request of his supervisor. (ROR, Item 23.) Subsequently, during a hearing conducted by an Appeals Referee, the plaintiff claimed that, although he thought he had destroyed CT Page 8908 the documents, he later found them in his desk, with the exception of a police report which he did destroy. (ROR, Item 27.) The plaintiff did not report this discovery to his employer. (ROR, Item 23.) The documents were evidence of a possible crime. (ROR, Item 23.)
In June, 1994, the plaintiff had a conversation with another police officer and an informant "regarding how a particular individual could be made to disappear or be killed for $10,000." (ROR, Item 23.) The individual they spoke of killing was Inkel. (ROR, Item 13.) Thereafter, the plaintiffs supervisor told the plaintiff not to have any further unnecessary contact with the informant. (ROR, Item 23.) In August, 1994, the FBI and a police sergeant informed the informant that they wanted to talk to him and have him take a polygraph test. (ROR, Item 23.) The informant thereafter contacted the plaintiff who told the informant that he did not have to take a polygraph test. ROR, Item 23.) The informant told the plaintiff that he wanted to leave town, and the plaintiff gave him $200 to do so. (ROR, Item 23.)
The plaintiff was initially suspended with pay. (ROR, Item 23.) In February 1995, however, his employer began hearings to determine whether the plaintiff's conduct with regard to the contents of the knapsack and his interactions with the informant constituted misconduct. (ROR, Item 23.) The employer suspended the plaintiff without pay on March 25, 1995. However, the police commission had not yet decided what disciplinary action should be taken and, therefore, scheduled further hearings. (ROR, Item 23.) On April 25, 1995, the plaintiff resigned from the police department before the police commission concluded its hearings. (ROR, Item 23.)
The Administrator of the Employment Security Division found the plaintiff eligible for unemployment compensation benefits on April 29, 1995 (ROR, Item 28), pursuant to a hearing conducted on April 18, 1995. Notice of the hearing was sent to the Town of Colchester on April 3, 1995. (ROR, Item 2.) The Town of Colchester filed a timely appeal to the Appeals Referee on May 5, 1995. (ROR, Item 4.) The Appeals Referee scheduled a hearing for June 28, 1995. (ROR, Item 6.) Notices of the hearing were mailed to the plaintiff and the Town of Colchester on June 12, 1995. (ROR, Item 6.)
The Appeals Referee reversed the Administrator's decision on September 29, 1995, finding the plaintiff ineligible for CT Page 8909 unemployment compensation benefits pursuant to General Statutes §
The plaintiff filed a timely appeal of the Referee's decision with the Employment Security Board of Review on October 2, 1995, pursuant to General Statutes §
On December 22, 1995, acting pursuant to section
II. Standard of Review CT Page 8910
"Judicial review of any decision shall be permitted only after a party aggrieved thereby has exhausted his remedy before the board . . . ." General Statutes §
"To the extent that an administrative appeal, pursuant to General Statutes §
If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have, followed from such facts." (Internal quotation marks omitted.) MattatuckMuseum-Mattatuck Historical Society, supra,
"As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes §§
III. Discussion
The plaintiff alleges that the decision of the Board should be reversed for three reasons: () the Board took into consideration information which was misrepresented to it by the Town of Colchester; (2) the Board erred in not granting the Petitioner an evidentiary hearing before the Board so that the plaintiff could present additional evidence or testimony; and (3) the Board concluded that the plaintiff's conduct constituted a felonious act. In his brief, the plaintiff additionally argues that he is not guilty of repeated willful misconduct and that he did not voluntarily leave his employment without job-connected cause.
Both defendants argue that this court should dismiss the plaintiff's appeal since the Board's factual and legal conclusions are reasonably drawn from the facts found. The defendants also argue that the Board was correct in refusing to grant the plaintiff an additional evidentiary hearing.
This court will address each of the plaintiff's grounds in turn.
A. Misrepresented Information
Although the plaintiff's appeal alleges that the Board took misrepresented information into consideration in reaching its decision, the plaintiff does not argue that allegation in his brief. "Analysis, rather than mere abstract assertion, is CT Page 8912 required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.)Cummings v. Twin Tool Mfg. Co.,
Accordingly, since the plaintiff did not brief his allegation that the Board considered misrepresented information, that claim is waived.
B. Evidentiary Hearing
The plaintiff argues that the Board erred in refusing to grant the plaintiff an evidentiary hearing to submit evidence which may have shown that, at the time of the appeals hearing, the employer knew that the informant had an airline ticket purchased for him by the State Police near the time of the plaintiff's contact with the informant. The plaintiff also argues that the Board erred in denying him a hearing since the employer's submission of evidence into the record during the Appeals Referee's hearing prejudiced him. The plaintiff does not explain the relevance of the alleged airline ticket nor how the employer's submission of evidence prejudiced him.
The defendants argue that the plaintiff was given ample opportunity to present evidence at the hearing before the Appeals Referee. The defendants refer to the notice; I sent to the plaintiff which advised him of the hearing before the Appeals Referee and which stated that he would likely receive only one hearing and that he must present all evidence at that hearing. (ROR, Item 6.) The defendants also cite to the Board regulations which require all parties to present their evidence at the hearing before the Appeals Referee.
General Statutes §
The Board determined that justice did not require that the plaintiff receive a hearing before the board under Conn. Agencies Regs. §
Accordingly, there is no basis for finding that the Board abused its discretion in denying the. plaintiff an evidentiary hearing.
C. Felonious Conduct
The plaintiff argues that the Board's finding that the plaintiff's actions in regard to the contents of the knapsack constituted felonious conduct is erroneous for two reasons. First, the plaintiff argues that since the Board did not find specifically that the plaintiff acted willfully and corruptly, the Board did not properly find the plaintiff guilty of felonious conduct pursuant to General Statutes §
The Administrator is correct in arguing that since the CT Page 8914 plaintiff failed to file a motion to correct the findings of the Board in accordance with Practice Book § 515A, now Practice Book (1998 Rev.) §
Accordingly, this court will not question the factual findings of the Board, but will rather determine only whether the conclusions reached were reasonably drawn from the facts found and a correct application of the law.
General Statutes §
Specifically, the Board found that the plaintiff destroyed at least the police report found in Inkel's knapsack, while "it was in the custody and under the control of the [plaintiff], an agent of the subject employer, which is a municipality." The Board found that the circumstantial evidence presented was sufficient to prove that the plaintiff intended to "take away" the remaining documents. Such evidence included the fact that the plaintiff did not inventory any of the documents, as required. The Board found that it was especially important for the plaintiff to inventory the evidence because the documents may have been obtained as the result of criminal acts. The Board found the fact that the plaintiff was directed by his supervisor to destroy the documents irrelevant because the plaintiff knew or should have known that to do so was illegal.
In State v. Kari,
The factual findings of the Board support the Board's conclusion that the plaintiff's conduct constituted felonious conduct pursuant to General Statutes §
Accordingly, the Board's finding that the plaintiff engaged in felonious conduct was proper.
D. Willful Misconduct CT Page 8916
Although the Board did not address the issue of the plaintiff's contact with the informant, the plaintiff argues that his contact with the informant does not constitute willful misconduct.
The finding of the Board in the present case was that the plaintiff was not entitled to an additional evidentiary hearing, and that the plaintiff was not entitled to unemployment compensation benefits because his conduct with regard to the contents the knapsack constituted felonious conduct. The Board did not of the knapsack constituted felonious conduct. The board did not reach the issue of whether the plaintiff engaged in willful misconduct with regard to his contact with the informant because a finding of felonious conduct was sufficient to render the plaintiff ineligible for unemployment benefits. Accordingly, the plaintiffs arguments that he did not engage in wilful misconduct with regard to his contact with the informant are irrelevant for purposes of this appeal.
E. Voluntarily Leaving Job for a Job-Connected Purpose
Lastly, the plaintiff argues that although he voluntarily left his job, he did so for a job-connected purpose, since the anticipated costs of defending himself during the employers hearings were beyond his means. The plaintiff does not discuss the relevance of this argument.
This court finds that whether or not the plaintiff voluntarily left his job for a job-connected purpose is irrelevant for purposes of this appeal.
IV. Conclusion
This court finds that the Board did not abuse its discretion in denying the plaintiff an evidentiary hearing. Also, the Board's finding that the plaintiff's conduct constituted felonious conduct was based on ample evidence and a correct application of the facts to General Statutes §
Kenefick, J.