author: HENNESSY, J. LAVERY, J.,

text:
    DONALD E. AHERN v. STATE EMPLOYEES RETIREMENT COMMISSION
    (AC 16330)
    Lavery, Schaller and Hennessy, Js.
    Argued December 1, 1997
    officially released April 21, 1998

      Jason W. Cohen, with whom, on the brief, was J. William Gagne, Jr., for the appellant (plaintiff).

      Sharon A. Scully, assistant attorney general, with whom, on the brief, were Richard Blumenbhal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Donald E. Ahern, appeals from the trial court’s dismissal of his appeal from the state employees retirement commission’s denial of a request for reconsideration of a decision. The commission asserts that there is no right to appeal the calculation of retirement benefits under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.; because this proceeding does not qualify as a contested case. The commission argues that this is so because there is no statutory requirement that the retirement commission provide a hearing pursuant to § 4-166 (2). We agree.

The following facts are relevant to the resolution of this claim. On July 21, 1994, a union representative contacted the director of the retirement division of the state comptroller requesting that the division explain the calculation of Ahern’s retirement benefits. The division provided an explanation of its calculation with which Ahern disagreed. Accordingly, on October 14, 1994, the plaintiff filed a claim pursuant to General Statutes § 5-155a (j) in which he requested that the commission review the calculation of benefits. A hearing was held before the commission on November 17, 1994, and on July 20, 1995, the computation of Ahern’s benefits was unanimously affirmed. Ahern requested reconsideration by the commission, and on March 21, 1996, the commission issued its final decision.

On May 1, 1996, Ahern petitioned the Superior Court for review of the commission ruling affirming the computation of benefits. Ahern alleged in his petition that the state employees retirement commission is an administrative agency of the state that is empowered to review and reconsider decisions of the retirement division pursuant to § 5-155a (k). Accordingly, pursuant to General Statutes § 4-183, the Superior Court has jurisdiction to review decisions of the commission. On June 21, 1996, the commission filed a motion to dismiss Ahern’s petition for lack of subject matter jurisdiction over the issues raised.

On August 12, 1996, a hearing was held before the court, O’Neill, J., regarding the commission’s motion to dismiss. The commission argued that there is no right to a hearing before the retirement commission under Derwin v. State Employees Retirement Commission, 234 Conn. 411, 661 A.2d 1025 (1995), and, accordingly, no right to appeal under the UAPA. In response, Ahem argued that a change in the statutory language created an exception, thereby giving him the right to appeal. The trial court dismissed the petition, reasoning that if Ahern’s argument were correct the legislative commissioners’ office would have in effect overruled a Supreme Court decision by making a technical change in the statute. The sole issue on appeal is whether changes in the wording of § 5-155a (j) created a statutory right to appeal that did not previously exist.

Pursuant to § 5-155a (g), the retirement commission “may hold hearings when deemed necessary in the performance [of] its duty.” The Derwin court concluded that this language allowed the commission to determine if it should conduct a hearing and that if the commission granted a hearing, it did not convert the proceeding into a contested case. Therefore, in any matter brought before this agency, there can never be a “contested case” as defined in § 4-166 (2) because decisions of the commission are not final for purposes of the UAPA.

In Derwin v. State Employees Retirement Commission, supra, 234 Conn. 411, the Supreme Court held that the Superior Court lacked subject matter jurisdiction over a plaintiffs appeal from the commission’s denial of a request for reconsideration. Our Supreme Court concluded that there was no right to appeal because the denial did not constitute a “final decision” in a contested case for purposes of appeal as required by § 4-183 (a). Id., 423.

Prior to the 1994 amendment, General Statutes (Rev. to 1993) § 5-155a (k), which governs the review of retirement benefit claims and sets forth the available appellate remedies, provided: “If any claim is denied, a claimant may request that the decision be reviewed and reconsidered by the commission. Thereafter, any contested case shall be decided in accordance with [the UAPA.]” Section 5-155a (k) was amended during the May 25, 1994, special legislative session by Public Acts 1994, No. 94-1, § 68, to add that “any such case shall be decided as a contested case in accordance with [the UAPA].” Ahem argues that this amendment to the statute is substantive and therefore creates a right to appeal while the commission argues that it was merely technical and does not create a right to appeal. Both parties agree that if we conclude that the 1994 amendment is found to be a technical amendment to the statute, the plaintiff cannot be granted the relief requested.

“To determine whether [a change in language] should be characterized as [technical], we look to the legislative history to determine the legislative intent. Connecticut National Bank v. Giacomi, 242 Conn. 17, 40, 699 A.2d 101 (1997) . . . .’’(Citations omitted; internal quotation marks omitted.) Toise v. Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998). Our review of the legislative history convinces us that Public Acts, Spec. Sess., May 25, 1994, No. 94-1, House Bill No. 7002, titled, “An Act Concerning the Revisor’s Technical Corrections to the General Statutes and to Certain Public and Special Acts,” was purely technical. The legislative debate in both houses confirms this. For example, Representative Richard D. Tulisano stated that the House had been “advised by [the legislative commissioners’ office] that everything in [H.B. 7002] is technical in nature . . . and it has no substantive import whatsoever.” 37 H.R. Proc., Pt. 25, May 25, 1994 Spec. Sess., p. 9129. In the Senate, Senator George C. Jepsen stated that “we asked the Legislative Commissioners’ Office to go through the bill and [present to us only] those portions which are purely technical in nature. . . . All amendments [in H.B. 7002] . . . are technical in their scope.” 37 S. Proc., Pt. 10, May 25, 1994 Spec. Sess., pp. 3386-87. On the basis of the foregoing, we conclude that the amendment was technical and created no new substantive right to appeal.

The right to appeal from a decision of an administrative agency to the Superior Court is a creature of statute. Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985). Furthermore, the right to appeal is a substantive right that may not be created through a technical change to a statute. In re Daniel H., 237 Conn. 364, 373-74, 678 A.2d 462 (1996); In re Judicial Inquiry No. 85-01, 221 Conn. 625, 632, 605 A.2d 545 (1992). Under the controlling case law, if the amendment is technical or clarifying, it may not create a substantive right to appeal. Because we conclude that the change in the statute is technical, the phrase may not be interpreted to create the right to appeal.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

LAVERY, J.,

concurring. I agree with the majority that the judgment of the trial court should be affirmed. I write separately, however, because I believe the following additional analysis is necessary to reach the majority’s conclusion.

Appeals from the decisions of an administrative agency are governed by General Statutes § 4-183 (a) of the Uniform Administrative Procedure Act (UAPA). Section 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.” (Emphasis added.) Accordingly, it has been “consistently held that the Superior Court has jurisdiction only over appeals from a ‘final decision’ of an administrative agency.” Derwin v. State Employees Retirement Commission, 234 Conn. 411, 418, 661 A.2d 1025 (1995).

The term “final decision” is defined in General Statutes § 4-166 (3), which states that a “ ‘[f]inal decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . . .” (Emphasis added.)

General Statutes § 4-166 (2) provides: “ ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168 . . . .” (Emphasis added.) In Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 811, 629 A.2d 367 (1993), our Supreme Court stated: “[W]e read § 4-166 (2) as manifesting a legislative intention to limit contested case status to proceedings in which an agency is required by statute to provide an opportunity for a hearing to determine a party’s legal rights or privileges.” (Emphasis in original.) The statutes governing the state employees retirement commission, General Statutes §§ 5-152 through 5-156f, do not require that a hearing be held to determine a party’s legal rights or privileges. Therefore, in any matter brought before this agency, it appears that there can never be a “contested case” as defined in § 4-166 (2).

In this case, Ahem filed a claim pursuant to General Statutes § 5-155a (j) on October 14,1994. A hearing was held pursuant to § 5-155a (g) on November 17, 1994. Ahern’s claim was denied on July 20, 1995. He then sought reconsideration pursuant to § 5-155a (k), on August 24, 1995. Section 5-155a (k) provides: “If any claim is denied, a claimant may request that the decision be reviewed and reconsidered by the commission. Thereafter, any such case shall be decided as a contested case in accordance with [the UAPA].” (Emphasis added.)

The retirement commission granted the request for reconsideration. There was no hearing held and none was required. The review of the claim was based on the record. On March 21, 1996, the commission issued a decision in which it affirmed its earlier decision. Ahem then appealed that decision to the Superior Court pursuant to § 4-183. The commission filed a motion to dismiss arguing that the Superior Court lacked subject matter jurisdiction. The Superior Court granted the motion to dismiss. Ahem then filed this appeal.

On appeal, Ahem claims that § 5-155a (k) grants the Superior Court subject matter jurisdiction to hear the appeal under § 4-183. Specifically, he argues that § 5-155a (k) creates a statutory right to appeal a reconsideration decision of the commission. He argues that the revision to § 5-155a (k) created this right, clarifying the language that was ambiguous under the prior version. The prior version of § 5-155a (k) stated: “If any claim is denied, a claimant may request that the decision be reviewed and reconsidered by the commission. Thereafter, any contested case shall be decided in accordance with [the UAPA].” General Statutes (Rev. to 1993) § 5-155a (k). The revision replaced “any contested case” with “any such case.” Ahem argues that this change mandates that the reconsideration hearing be handled as a contested case including the right to appeal the decision under § 4-183. Thus, an exception to the mies regarding “contested cases” has been created.

The defendant argues that the change to § 5-155a (k) requires the commission “to decide” reconsideration requests in the same manner that reconsideration requests are decided in contested cases under the UAPA, specifically General Statutes § 4-lSla. The reference to “any such case” refers to a case where the claimant has requested review or reconsideration. Therefore, in the situation where a claim is denied and the claimant files a request for reconsideration, and the request is granted, the procedures used by the commission for the reconsideration are those in § 4-181a. I agree.

It appears that § 5-155a (k) allows the retirement commission to reconsider its own decisions, which are not final decisions for the purpose of appeal. The change was needed to clarify that the procedure to be used is that used with contested cases under § 4-181a of the UAPA. I believe the change was implemented because there are no contested cases before the retirement commission. The old language of § 5-155a (k) referred to contested cases, which do not exist. Therefore, the change was needed to clarify the procedure to be used by the commission if it granted a claimant’s request to reconsider a nonfinal commission decision.

Ahern’s reconsideration decision, pursuant to § 5-155a (k), is not appealable because it is not a final decision as defined in the UAPA, § 4-166 (3) (A). The reconsideration decision is not appealable as an “agency determination in a contested case” under § 4-166 (3) (A) because there is no statutory requirement that a reconsideration hearing be given. Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 811. It is not considered “an agency decision made after reconsideration” under § 4-166 (3) (C) because that definition is limited to reconsiderations of decisions that are already final for purposes of appeal. Derwin v. State Employees Retirement Commission, supra, 234 Conn. 421. Thus, the original decision being reconsidered in this case was not a final decision in a contested case because it was not final for purposes of appeal and not rendered after a statutorily mandated hearing.*

I concur with the result.

       The relevant portion of the trial court’s comments are as follows: “It’s not only that there’s no legislative history, technical changes are made by the legislative commissioners’ office without any input from the state legislature except they put their fingerprints on it at the very end; it’s a good bill, and it should pass.... We have to decide, what did the legislature want. Derwin [v. State Employees Retirement Commission, supra, 234 Conn. 411] has told us that . . . not appealable under 4-183. . . . This is not a contested case, clearly. It doesn’t fit under that at all. . . . The real people who decide these things sit on the other side of Capitol Avenue [in Hartford], They’re on the west side, not the legislative commissioners’ office. They’re not going to decide it. They’re not going to decide an issue like that. Was the Supreme Court wrong? We’ll reverse them. No, not the legislative commissioners. They would never do that intentionally. I don’t know what they’re doing with their technical change, but they’re obviously not doing that.”

       General Statutes § 4-183 (a) provides: “ A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of an appeal.” In addition, “[t]he appealability of an agency decision is governed by § 4-183 (a) of the UAPA, which provides that ‘[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section.’ . . . Accordingly, we have consistently held that the Superior Court has jurisdiction only over appeals from a ‘final decision’ of an administrative agency. See, e.g., State v. State Employees’ Review Board, 231 Conn. 391, 400 n.13, 650 A.2d 158 (1994); Summit Hydropower Partnership v. Commissioner of Environmental Protection, [226 Conn. 792, 811-12, 629 A.2d 367 (1993)].” (Emphasis in original.) Derwin v. State Employees Retirement Commission, supra, 234 Conn. 418.

       General Statutes § 4-181a provides: “Contested cases. Reconsideration. Modification, (a) (1) Unless otherwise provided by law, aparty in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition. (2) Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision. (3) If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming, or reversing the final decision.
      “(b) On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency’s own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.
      “(c) The agency may, without further proceedings, modify a final decision to correct any clerical error. A person may appeal that modification under the provisions of section 4-183 or, if an appeal is pending when the modification is made, may amend the appeal.”

       My review indicates that there are no “contested cases” in matters before the retirement commission because there is no statutory requirement for a hearing satisfying § 4-166 (2). It also appears that there is only one way to get a “final decision” from the retirement commission, and that is through § 4-166 (3) (B). In LoPresto v. State Employees Retirement Commission,
        234 Conn. 424, 662 A.2d 738 (1995), the plaintiff sought declaratory reEef pursuant to General Statutes § 4-176 (a). When the commission issued a declaratory ruling rejecting the plaintiffs claim, he appealed to the Superior Court pursuant to § 4-183. Our Supreme Court stated: “The commission’s declaratory ruling constituted a .‘final decision’ for purposes of appeal under § 4-183. See General Statutes § 4-166 (3) (B) . . . .” Id., 432 n.15. Thus, it appears that the only way to get a “final decision” from the retirement commission that is appealable to the Superior Court is by seeking a declaratory judgment pursuant to § 4-176 (a). There appear to be no final decisions from the retirement commission satisfying § 4-166 (3) (A) or (C).


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANTHONY CARTER
    (AC 14993)
    O’Connell, C. J., and Dupont and Healey, Js.
    Argued February 23
    officially released April 21, 1998

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Christopher L. Morano, supervisory assistant state’s attorney, and Judith Rossi, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, following guilty pleas, of violation of the Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53-395 (b) and (c), conspiracy to violate CORA in violation of General Statutes §§ 53a-48 and 53-395 (b) and three counts of sale of narcotics in violation of General Statutes § 2 la-277 (a).

This appeal was previously before this court in State v. Carter, 43 Conn. App. 555, 685 A.2d 1129 (1996). The Supreme Court reversed the judgment of this court, and the appeal is now before us on remand; see State v. Carter, 243 Conn. 392, 703 A.2d 763 (1997); to determine the defendant’s claim that the trial court’s use of unreliable information at his sentencing hearing violated his right to due process of law. More specifically, the defendant argues that the trial court improperly listened to unsworn statements from two police officers and denied the defendant’s request to cross-examine the officers.

The defendant’s claim is based on the following facts. As part of a plea bargain, the defendant pleaded guilty to each of the crimes in question, in return for which the state nolled several other charges. At the sentencing hearing, Detective Arthur Levich and Sergeant Christopher Lyons of the Hartford police department made unsworn statements to the court at the state’s request.

Levich narrated a videotape he had made of the events leading to the crimes for which the defendant was being sentenced. The trial court limited Levich’s narration to the three specific drug transactions to which the defendant had pleaded guilty. These three sales were made to undercover police officers. The narration consisted of comments such as: “[The defendant] is speaking with an undercover officer in the vehicle here. ... At the end of the conversation . . . [the defendant] . . . hands in the bag of narcotics, he is paid and you will see him walking away as he takes the money from the window. . . . [The defendant] puts [the money] in his pocket there and he walks back to the group, which are other gang members of [Twenty-Love].” Lyons was the supervisor of the Hartford police department’s gang task force. His statement explained why this particular CORA investigation was instigated and included a description of the activities of the Twenty-Love gang and the defendant’s role in those activities.

At the sentencing hearing, the defendant asked that the officers be sworn and that he be allowed to cross-examine them. The trial court denied both requests, noting that the officers were not being asked questions under oath and that they were not testifying about the facts, but were merely explaining the CORA investigation and the videotape. The trial court also indicated that it was within the court’s discretion to consider a broad range of information to assist it in weighing its options and imposing a proper sentence.

The defendant contends that permitting the officers to be heard at the sentencing hearing violated Practice Book § 919, now Practice Book (1998 Rev.) § 43-10, because that rule does not provide for any person other than the state, the defendant and the victim to make statements at a sentencing hearing. We do not agree. Practice Book § 919 merely assures that the state, the defendant and the victim will have an opportunity to be heard. We do not construe it as restricting the trial court’s discretion to receive information from other persons or sources that may assist the court in imposing an appropriate sentence.

The defendant next argues that the trial court’s decision to allow the officers to give unsworn statements without being subject to cross-examination violated his right to due process of law. This claim is without merit.

“ ‘Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial.’ ” State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). Moreover, “both the United States Supreme Court and our Supreme Court have recognized that a defendant is not entitled, under the due process clause, to cross-examine witnesses in a sentencing hearing. Williams v. New York, [337 U.S. 241, 250, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949)]; State v. Harmon, [147 Conn. 125, 129, 157 A.2d 594 (1960)].” (Emphasis in original.) State v. DeJesus, 10 Conn. App. 591, 595, 524 A.2d 1156 (1987).

In sentencing an individual who has been convicted of a crime, “judges may consider a wide variety of information. . . . Consistent with due process the trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance. . . . It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come. United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972).” (Citations omitted; internal quotation marks omitted.) State v. Huey, supra, 199 Conn. 127; State v. DeJesus, supra, 10 Conn. App. 600.

The trial court, however, does not have unfettered discretion. “As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability. ... As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.” (Citation omitted.) State v. Huey, supra, 199 Conn. 127; State v. DeJesus, supra, 10 Conn. App. 600-601.

The statements of Levich and Lyons clearly met the requirement of having some minimal indicium of reliability. They were based on the officers’ personal experience and observations. Levich’s statement was limited to narrating portions of a videotape that he had filmed, which documented crimes to which the defendant had pleaded guilty. Lyons’ statement focused on his personal knowledge regarding the activities of the Twenty-Love gang and the defendant’s role in those activities.

The reliability of the officers’ statements was further demonstrated by the defendant himself, who corroborated critical aspects of the officers’ statements, such as the defendant’s association with the Twenty-Love gang. Although the defendant maintained that he was not a member of the Twenty-Love gang, he admitted to “acting in concert” with that gang. Moreover, as the trial court noted, the defendant pleaded guilty to the CORA violation after “[i]t was significantly explained to him, very [painstakingly] explained to him that his association with the [Twenty-Love] gang was the basis of the CORA conviction.”

Finally, the defendant had ample opportunity to rebut any parts of the officers’ statements that he disputed. The defendant and his grandmother both spoke on his behalf at the sentencing hearing. The trial court also had before it letters in support of the defendant, including one from a high school teacher. Under these circumstances, the defendant’s right to due process of law was not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       The issue decided by the Supreme Court is irrelevant to the issue now before us.

       Practice Book § 919, now Practice Book (1998 Rev.) § 43-10, provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall . . . conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition ....
      “(2) The judicial authority shall allow the victim and any other person directly harmed by the commission of the crime a reasonable opportunity to make, orally or in writing, a statement with regard to the sentence to be imposed.
      “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .”


author: FOTI, J.

text:
    NIKKI JUDITH ROMAN ET AL. v. STANTON JOHNSON ET AL.
    (AC 17067)
    Foti, Lavery and Spear, Js.
    Argued March 3
    officially released April 21, 1998

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and James W. Walsh, for the appellants (defendants).

      Ernest C. LaFollette, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The defendants, Jean Johnson and Stanton Johnson, appeal from the judgment of the trial court granting an injunction ordering them to restore a portion of a stairway leading to property of the plaintiffs, Nikki Judith Roman and Russell Atkins. Part of the stairway had been removed by the defendant Stanton Johnson. The judgment further prohibited the defendants from engaging in any activities that would interfere with the plaintiffs’ rights to use a driveway and stairway and to park cars in an area adjacent to the stairway. The defendants claim that the trial court improperly (1) determined that the plaintiffs established an easement by prescription over their property, and (2) awarded attorney’s fees to the plaintiffs. We agree that the trial court improperly awarded attorney’s fees to the plaintiffs and, therefore, reverse the trial court’s judgment in part.

The plaintiffs brought this action seeking injunctive relief (1) forbidding the defendants from interfering with the plaintiffs’ use of a driveway and stairway located on the defendants’ property, (2) requiring the defendants to remove all obstructions from the driveway and stairway, and (3) requiring the defendants to restore the portion of the stairway that was removed by Stanton Johnson. The plaintiffs also sought damages and attorney’s fees.

The parties own abutting properties in the Stevenson section of Monroe. In 1958, the plaintiff Atkins purchased the parcel located at 52 Downs Road, also known as 46 Mooseup Trail. From the time that Atkins purchased the property, he used a parking area and stairway, located on property now owned by the defendants, to gain access to his property. In addition, in 1963, Atkins began using a driveway, located on property now owned by the defendants, to gain access to his property. On July 13,1995, the defendant Stanton Johnson erected a chain and a fence across the driveway, blocking ingress and egress to the plaintiffs’ property by vehicle. On July 16,1995, Johnson removed the upper stairs and a landing from the stairway leading to the plaintiffs’ property and placed a fence across the stairway. On September 13, 1995, Johnson installed five concrete Jersey barriers across the driveway and a sidewalk, blocking all access to the plaintiffs’ property from the driveway and stairway.

In addition to hearing testimony and admitting exhibits, the trial court viewed the properties. In its memorandum of decision, the trial court stated: “It would be difficult for the court, which has viewed the locale, to describe the terrain, and even more difficult for anyone reading such description to obtain an accurate picture of the scene. Suffice it to say, based on the court’s view, the testimony and a stipulation of facts, the court finds that the plaintiffs have used the drive and stairs in question for more than fifteen years in a continuous, hostile, open and adverse manner, without permission from either the defendants or their predecessors in title. The plaintiffs’ rights had fully accrued before any attempt to block [their] use [was] employed. See [General Statutes §§] 52-575 and 47-38. The defendants offered no testimony to counteract the plaintiffs’ claim. ” There were no motions filed to correct, articulate or rectify the trial court’s memorandum of decision.

I

The defendants do not agree that the plaintiffs established an easement by prescription over their property. While the defendants do not agree with the trial court’s finding that the plaintiffs’ use continued for more than fifteen years in a hostile, open and adverse manner, without permission from either the defendants or their predecessors in title, they claim that finding is irrelevant since the plaintiffs’ use was not made under a claim of right. The defendants’ basic argument is that the plaintiffs did not demonstrate that their use was made under a claim of right and, further, that the trial court made no such finding. We do not agree.

The plaintiffs had the burden of proving a prescriptive right to use the defendants’ property. See Shea v. Gavitt, 89 Conn. 359, 363, 94 A. 360 (1915). To sustain their burden, the plaintiffs were required to establish that their use of the defendants’ property was open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. Reynolds v. Soffer, 190 Conn. 184, 187, 459 A.2d 1027 (1983). Whether these requirements have been met in a particular case presents a question of fact for the trier of facts. Swenson v. Dittner, 183 Conn. 289, 294, 439 A.2d 334 (1981).

“Use under a claim of right simply means without recognition of the rights of the owner of the servient tenement. Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 (1967).” (Internal quotation marks omitted.) Saunders Point Assn., Inc. v. Cannon, 177 Conn. 413, 419, 418 A.2d 70 (1979). The record indicates that the trial court heard testimony that the plaintiff Atkins believed that the driveway was his because he improved it for use and it was the only way to gain access to his property. Furthermore, the plaintiffs never asked the defendants or their predecessors for permission to use the defendants’ property, and their use was in the presence of the defendants and their predecessors. See id., 419-20.

The trial court specifically found the plaintiffs’ use to be adverse and without permission from either the defendants or their predecessors. This finding is supported by the evidence and by the reasonable inferences drawn from the facts proven. Leabo v. Leninski, 182 Conn. 611, 615-16, 438 A.2d 1153 (1981). Furthermore, because there was no evidence in this case that either the driveway or the stairway was ever used as a right-of-way by the general public, the plaintiffs were not required to “perform some act to the knowledge of the [defendants or their predecessors] clearly indicating [their] individual claim of right.” (Internal quotation marks omitted.) Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 619-20, 495 A.2d 1006 (1985).

After a review of the record, including the transcript and exhibits, we cannot conclude that the trial court’s finding of a prescriptive easement in the plaintiffs’ favor was clearly erroneous. The evidence adduced at trial amply supports the court’s conclusion that the plaintiffs satisfied the requirements to acquire a prescriptive easement over the defendants’ property.

The defendants’ claim that the trial court did not specifically find that the plaintiffs’ use of the defendants’ property was made under a claim of right is without merit. “To acquire an easement by prescription, the use of the property must be adverse. General Statutes § 47-37; Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993). In order to prove adverse use, the party claiming to have acquired the easement must demonstrate that the use of the property has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.” (Emphasis added; internal quotation marks omitted.) Stiefel v. Lindemann, 33 Conn. App. 799, 810, 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1994). “All that is required is a showing by a fair preponderance of the evidence that the use was adverse.” Reynolds v. Soffer, supra, 190 Conn. 188. The trial court found that the plaintiffs’ use of the defendants’ property was adverse and, therefore, by necessity, found that it was made under a claim of right.

II

The defendants next claim that the trial court improperly awarded attorney’s fees to the plaintiffs. We agree.

On January 7, 1997, the trial court rendered judgment granting injunctive relief to the plaintiffs. In addition, the trial court scheduled a separate hearing to decide the plaintiffs’ claims for damages and attorney’s fees. On February 21, 1997, the plaintiffs sought permission to amend their complaint to include a claim for punitive damages based on the defendant Stanton Johnson’s “intentional, outrageous and wanton” conduct. On March 19,1997, the trial court filed its second memorandum of decision granting the plaintiffs’ request to amend their complaint and awarding “a reasonable fee for the services of counsel” in the amount of $2000. The court also stated that “[a]ny further claims for damages [based on] mental anguish and distress are denied.”

“ ‘[T]he general rule of law known as the “American rule” is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Fleischmann Distilling Corporation v. Maier Brewing Co., 386 U.S. 714, 717, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967). . . . Connecticut adheres to the American rule.’ Marsh Day & Calhoun v. Solomon, 204 Conn. 639, 652, 529 A.2d 702 (1987).” (Citation omitted.) Chrysler Corp. v. Maiocco, 209 Conn. 579, 590, 552 A.2d 1207 (1989); see O’Leary s. Industrial Park Corp., 211 Conn. 648, 651, 560 A.2d 968 (1989). “Attorney’s fees may be awarded, however, as a component of punitive damages.” Farrell v. Farrell, 36 Conn. App. 305, 311, 650 A.2d 608 (1994). In the present case, the trial court did not make any findings regarding the defendant Stanton Johnson’s wanton, wilful or outrageous conduct and did not award punitive damages. Because the trial court did not award punitive damages and there is neither contractual nor statutory authorization for the award of attorney’s fees, we must vacate that portion of the judgment requiring the defendants to pay the plaintiffs’ attorney’s fees.

The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to eliminate the ordered payment of attorney’s fees by the defendants.

In this opinion the other judges concurred.


text:
    STATE OF CONNECTICUT v. MARCELLUS RUFFIN
    (AC 15068)
    O’Coimell, C. J., and Spear and Sullivan, Js.

      Argued March 4
    officially released April 28, 1998

      Elizabeth A. Gallagher, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, Bruce P. Hudock, senior assistant state’s attorney, and James Bemardi, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, following a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a), attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) and manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that the trial court improperly (1) admitted evidence of uncharged misconduct, (2) commented on the defendant’s preconviction incarceration, (3) admitted into evidence the defendant’s mug shot, and (4) failed to investigate the defendant’s pro se motion to dismiss his attorney. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 3,1993, while Alice Adams was hosting a child’s birthday party in the courtyard of her apartment building in Stamford, a barrage of gunfire erupted, during which one of the children, seven year old Jasmine Merced, was struck by a stray bullet and killed.

This gun battle arose from an ongoing dispute between the “Brotherhood,” a group consisting of the defendant and his friends, and a group known as the “Jamaicans,” over drug territory. An additional motive for the shooting was a fight between women from each group, which ended with both sustaining minor injuries.

A member of the Brotherhood, Torik Baldwin, was arrested after being recognized as one of the July 3, 1993 shooters. In exchange for a reduced sentence, Baldwin implicated the defendant in that shooting. The defendant was thereafter arrested and charged with the crimes previously listed. Despite introducing evidence to establish an alibi defense, the defendant was convicted on all charges.

Additional facts will be discussed throughout this opinion where relevant.

I

The defendant first claims that evidence that he had been a drug dealer constitutes improper character evidence and does not come within an exception allowing the admission of prior uncharged misconduct. Consequently, the defendant claims that such evidence was improperly admitted by the trial court.

During Baldwin’s testimony at trial, the state elicited evidence of the defendant’s involvement in drug dealing. This evidence was offered to show that the Brotherhood, the defendant’s group, and the Jamaicans conducted competing drug operations in the same neighborhood. The state maintained that this rivalry was a motive for the shooting. Defense counsel objected, arguing that the motive for the shooting was the fight between the women. The trial court overruled the objection and concluded that the state had a right to establish a motive “above and beyond the trivial reason that two women had a fight.” Moreover, the trial court instructed the jury that Baldwin’s testimony was to be considered only when determining motive and that the defendant was not on trial for any drug related violation.

“Although evidence of other misconduct is not ordinarily admissible to prove the bad character or criminal tendencies of the accused, it may be allowed for numerous other purposes. . . . Proof of motive is a widely recognized exception to the prohibition against the admission of such evidence.” (Citation omitted.) State v. Jenkins, 24 Conn. App. 330, 335, 588 A. 2d 648, cert. denied, 219 Conn. 903, 593 A.2d 132 (1991). “Motive is a fact which may be inferred from circumstances; hence the circumstances from which it may be inferred are relevant.” State v. Buonomo, 88 Conn. 177, 184, 90 A. 225 (1914).

“Before evidence can be admitted under the motive exception, it must satisfy a two-pronged test: (1) it must be relevant and material, and (2) its probative value must outweigh its prejudicial effect.” State v. Jenkins, supra, 24 Conn. App. 335. “The problem is . . . one of balancing the actual relevancy of the other [misconduct] evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 427, 630 A.2d 1043 (1993). “ ‘Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous. ’ ” State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993). “ ‘The trial court’s discretionary determination that the probative value of [such] evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown.” (Internal quotation marks omitted.) Id.

In the present case, Baldwin testified that he and his coconspirators, including the defendant, were competing with the Jamaicans for the drug trade in one particular Stamford neighborhood. Moreover, in his statement to the police, Baldwin specifically stated that the defendant’s brother, also a member of the Brotherhood, was angry at the Jamaicans because they were conducting drug transactions in the area he considered to be his territory. PYom this evidence, the jury reasonably could have concluded that the shooting was motivated, at least in part, by the drug rivalry.

Any prejudicial effect that may have been created by Baldwin’s testimony concerning the defendant’s drug dealing was minimized by the trial court’s limiting instructions to the jury. Accordingly, the trial court properly determined that the probative value of the evidence of the defendant’s drug dealing sufficiently outweighed its potential for prejudice.

II

The defendant next claims that the trial court’s statement to the jury concerning the defendant’s incarceration at the time of trial was prejudicial and in violation of his constitutional right to a fair trial. At the commencement of trial, but outside the presence of the jury, the trial court informed counsel that he anticipated that problems in transporting the defendant to court might irritate the jury. To avoid such a situation, the trial court proposed that he explain to the jury that because the defendant had been unable to post bond, he was being held in the sheriffs custody at the Bridgeport Correctional Center and that if there was a delay in starting trial in the morning, it would be the result of a transportation problem. The defendant did not object but, through his counsel, expressly assented to the proposed instruction. Later, as part of its final instruction, the court reminded the jury that the defendant could not be convicted solely because he had been arrested and charged with several crimes.

In the present case, not only did the defendant fail to object to the court’s comments but, through counsel, affirmatively agreed that the comments could be made to the jury. It may have been a tactical decision by counsel not to object. Tactical decisions, however, will not be second guessed on appeal by an appellate court or by appellate counsel. See State v. Davis, 199 Conn. 88, 95, 506 A.2d 86 (1986). When the defendant consented to the instruction, he waived his right to challenge it later on appeal. See State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989). Our procedure does not allow a defendant to pursue one course of action at trial and later, on appeal, argue that the path he rejected should now be open to him. State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987). For this court to rule otherwise would result in trial by ambuscade of the trial judge. State v. Prioleau, 235 Conn. 274, 311, 664 A.2d 743 (1995). As such, the trial court properly instructed the jury as to possible reasons for the delays in the proceedings.

Ill

The defendant next claims that the trial court improperly admitted into evidence a photograph of the defendant, commonly referred to as a police mug shot. It had been introduced by the state to bolster an in-court identification by one of its witnesses. The defendant argues that because the witness had known the defendant for one year prior to the date of the shooting, the photograph was unnecessary and in fact presented the defendant in an unfavorable light to the jury. The defendant contends that because the photograph had little or no probative value, the trial court committed harmful error by admitting it into evidence.

“A mug shot is admissible if it is relevant and material and if its probative value outweighs its prejudicial tendency. . . . Concealment Of any police markings indicating a prior conviction, however, [mitigates] the prejudicial effect of the photograph.” (Citations omitted; internal quotation marks omitted.) State v. Peary, 176 Conn. 170, 175-76, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979).

In State v. Woods, 171 Conn. 610, 612-13, 370 A.2d 1080 (1976), the state introduced into evidence a police photograph of the defendant that had been taped to conceal police markings. The defendant objected to such evidence, claiming that it informed the jury that he had a prior criminal record even though he had not testified at trial or put his character in issue. Our Supreme Court held: “That evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material . . . and if the trial judge determines in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. . . .

“In [Woods] considerable time had elapsed between the actual commission of the crime and the date of the trial, so that the intervening photographic identification of the defendant was clearly relevant to show the reliability of the identification made by the [witnesses]. While the mug shot may have exposed the jury to an implication of a prior arrest, there was no indication of conviction. . . . Moreover, since the police markings depicted in the mug shots had been concealed, the jury might well have inferred that the photograph was taken in connection with [the crime for which he was on trial].” (Citations omitted; internal quotation marks omitted.) Id.

The defendant’s identity in the present case as a participant in both the conspiracy and the shooting was an issue vigorously disputed at trial. We conclude that the state properly sought to support, its witness’ in-court identification, which was made almost two years after the shooting, by showing that she had selected the defendant’s picture out of a photographic array more than one year earlier. Because the state had the burden of proving that the defendant was a participant in the crimes with which he had been charged, and because the defendant’s sole defense was his alibi, the photograph carried substantial probative value and was necessary to the state’s case.

Any prejudicial tendency that the photograph may have had was tempered by the trial court’s instruction to conceal the police placard at the bottom of the photograph before it was presented to the jury. See State v. Albin, 178 Conn. 549, 553, 424 A.2d 259 (1979); see also State v. Peary, supra, 176 Conn. 176. Moreover, the trial court instructed the jury not to draw a negative inference from the photograph. Thus, the trial court did not abuse its discretion in admitting it into evidence.

IV

The final issue raised by the defendant is that the trial court failed to investigate the claims in the defendant’s pro se motion to dismiss his attorney, thereby violating his constitutional right to a fair trial. On June 28, 1994, the trial court appointed a special public defender to represent the defendant. Approximately eight months later, the defendant filed a pro se motion asking the court to discharge his court-appointed attorney and substitute a different public defender. The principal grounds set forth in the motion were (1) that counsel had failed to provide the defendant with information that he had requested in a December 28, 1994 letter, and (2) that counsel had failed to meet with the defendant in preparation for trial.

The trial court held a hearing on the defendant’s motion, at which time defense counsel advised the court that his client had the transcripts of a previous trial in which the same factual situation was involved. Defense counsel further advised the court that his office had provided the defendant with copies of what at that point were the only statements that had led to the defendant’s arrest. Defense counsel also acknowledged that he had not yet met with the defendant, but he advised the court that this was because he was waiting to meet with other witnesses whom the defendant’s family was trying to contact.

The defendant was allowed to argue on his own behalf and, in doing so, stressed to the court that he was concerned that there was no lawyer-client relationship because his special public defender had not visited him. The court listened to further argument from the defendant and denied his motion.

“To safeguard a criminal defendant’s right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial judge in a timely manner.” State v. Martin, 201 Conn. 74, 82, 513 A.2d 116 (1986). “The importance of safeguarding [the right to effective assistance of counsel] led to the requirement that, under certain conditions, the trial court must explore the possibility of a conflict.” State v. Phidd, 42 Conn. App. 17, 34, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997).

When a claim of ineffective assistance of counsel is raised on direct appeal, an appellate determination must be made as to whether the trial court was alerted to a possible conflict and failed to investigate it. Id., 35. The defendant claims that the trial court’s failure to conduct anything more than a perfunctory hearing constituted a violation of the defendant’s sixth amendment right to counsel. We are not persuaded.

“[A] trial court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel . . . .” State v. Robinson, 227 Conn. 711, 726, 631 A.2d 288 (1993). The extent of the inquiry, however, lies within the discretion of the trial court. State v. Hansen, 39 Conn. App. 384, 398-99, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). “A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints.” Id., 399.

In the present case, the defendant was given the opportunity at the hearing to inform the trial court of his dissatisfaction with his court-appointed counsel. The defendant clearly enunciated his reasons for the disqualification of his counsel, and the trial court concluded that those reasons did not warrant further inquiry. See State v. Robinson, supra, 227 Conn. 722. The court found that although the defendant claimed that his counsel failed to provide him with certain requested information, the defendant admitted to having such documents in his possession. Furthermore, although the defendant alleged that counsel failed to meet with him concerning the case against him, defense counsel explained that he first had to interview witnesses. We conclude that the trial court, having considered the facts submitted by the defendant, properly found that his claims were insufficient to justify substitute counsel and that no further investigation by the trial court was required.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court’s complete remarks to the jury were as follows: “Ladies and gentlemen, I’ve spoken with counsel about this, and we’ve agreed to inform you of certain facts that really do not have anything to do necessarily with the evidence in this case. The defendant ... is charged with serious offenses. And anyone who is arrested and charged with criminal offenses is entitled to post a bond guaranteeing his appearance in court. And in Connecticut, everybody who is arrested is entitled to bond. A bond has been set in the case of [the defendant]. Because of the nature of these charges, the bond that was set is a high bond. [The defendant] and his family have been unable to post that bond. As a result, the defendant is being held in lieu of bond in the Bridgeport Correctional Center. He is transported here every morning, and will be, unless he’s able to post [bond], by the sheriffs department, which accounts for the presence of the sheriffs here, since he is in the custody of the sheriffs department. Those of you who are familiar with the road conditions on [Interstate] 95 in the morning and afternoon, realize that it’s practically a parking lot coming down from Bridgeport to Stamford in the morning. And the same in reverse in the evening. So there will be delays in the starting of the trial sometimes in the morning because of the transportation problems. The sheriff has to get other people who are held in the same circumstances from the Bridgeport Correctional Center, which is a. holding place for a large number of courts. That accounts for some of the delays. Sometimes it’s caused by the court and other business as well. That’s why you were held at lunchtime, until we got this business straightened out, because the sheriffs wanted to take [the defendant] into custody for lunch. And so in moving him over to the lockup, they used whatever restraints are necessary moving through this courthouse. So you were held there so that you wouldn’t see that. But we’ve agreed that you’d come to that conclusion at any rate. I’m informing you now, he’s being held in lieu of bond, instead of being able to post bond. It has absolutely no significance with regard to this case. But it may cause delays in the morning.”

       The trial court’s ruling on the defendant’s motion was as follows: “[This court finds] nothing that would indicate any kind of inadequate counsel or misconduct of counsel here. Nothing. And, as far as [the] public defender goes, you cannot pick and choose your special public defender. You certainly—if you want to go out and hire your own attorney, that’s fine. You’re welcome to do that. But, if it’s going to be a public defender . . . [defense counsel] has tried many cases before me. He’s tried murders. And he is certainly a competent lawyer. And, I find no basis for granting this motion. So, I’m going to deny your motion. And, I’m sure [defense counsel] will do a commendable job. Okay? So, I’m going to deny your motion.”


text:
    DENISE MASKO v. BOARD OF EDUCATION OF THE TOWN OF WALLINGFORD
    (AC 16891)
    O’Connell, C. J., and Sullivan and Dupont, Js.
    Argued January 21
    officially released April 28, 1998

      James M. Quinn, for the appellant (named defendant).

      James L. Pomeranz, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant employer, the Wall-ingford board of education (school board), appeals from the decision of the workers’ compensation review board affirming the trial commissioner’s decision awarding compensation benefits to the plaintiff. The school board claims that the review board improperly (1) concluded that the death of the plaintiffs decedent arose out of and in the course of his employment, (2) made findings without adequate knowledge of applicable law and (3) made findings that were unsupported by the evidence. We affirm the review board’s decision.

The record discloses the following relevant facts. The decedent, Andrew Masko, was employed by the school board as its business manager. At the time of his death, the decedent was anxious and frustrated with the ongoing negotiations over the collective bargaining agreement that covered his position. The negotiations had failed, and the parties were forced to resort to binding arbitration.

On May 10, 1993, during regular business hours in accordance with the town’s custom, an arbitration hearing between the union and the school board was conducted at Sheehan High School in Wallingford. The decedent voluntarily attended the hearing with his employer’s permission, for which time he received compensation. At the hearing, the decedent delivered a lengthy speech after which he collapsed and later died. Cardiologists concluded that the decedent’s death was caused by the emotional stress of the hearing, in addition to a preexisting heart condition. No contrary medical opinion was offered.

The trial commissioner awarded workers’ compensation benefits to the decedent’s widow, Denise Masko, the plaintiff in this action. The school board appealed that award, claiming that the decedent’s death did not arise out of and in the course of his employment. The review board affirmed the commissioner’s findings, and the school board appealed to this court.

In reviewing a trial commissioner’s findings, the review board must hear the “appeal on the record and not retry the facts. ... It is the commissioner who has the power and the duty to determine the facts . . . and the review [board] may take evidence in addition to that certified to it by the commissioner only if good reason exists why the evidence was not presented to the commissioner. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 448-49, 562 A.2d 1086 (1989); Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988).

“Our scope of review of actions of the [review board] is . . . limited. . . . The decision of the [review board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed. . . . We accord great deference to the construction given to [General Statutes § 31-294c] by the commissioner and the [review board] because they are both charged with its enforcement.” (Citations omitted; internal quotation marks omitted.) Knapp v. New London, 44 Conn. App. 465, 468, 691 A.2d 11 (1997).

I

The school board first claims that the review board improperly affirmed the conclusion that the decedent’s death arose out of and in the course of his employment. The general rule to be applied in workers’ compensation cases is that to be compensable an injury must (1) arise out of the employment and (2) occur in the course of employment. McNamara v. Hamden, 176 Conn. 547, 556, 398 A.2d 1161 (1979). Arising out of employment “refers to the origin and cause of the accident.” (Internal quotation marks omitted.) Id., 550. To occur in the course of the employment, the injury must take place (1) within the period of employment, (2) at a place where the employee may reasonably be, and (3) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. These three parts correspond to the time, place and circumstance of the accident. Id., 550-51.

Our Supreme Court has gone one step further and held that when determining whether the activity is incidental to the employment, the following rule should be applied: “If the activity is regularly engaged in on the employer’s premises within the period of the employment, with the employer’s approval or acquiescence, an injury occurring under those conditions shall be found to be compensable.” Id., 556; see Mazzone v. Connecticut Transit Co., 240 Conn. 788, 791, 694 A.2d 1230 (1997). “The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996).

The record in this case reveals, and it remains undisputed, that the decedent’s death arose out of his employment because the decedent’s death was caused by his attendance at the arbitration hearing on May 10, 1993. The conflict between the parties in the present case is whether the decedent’s death occurred during the course of his employment. We conclude that it did.

First, the trial commissioner found that the decedent attended the arbitration hearing as a union member with his employer’s permission and was paid for that time. Second, the trial commissioner found that the decedent collapsed during this hearing, which was being conducted during the regular business hours of his employment. Third, it is undisputed that the hearing took place on the school board’s premises, a place where the decedent reasonably could have been found as a union participant during the arbitration proceedings.

Finally, the decedent was, at the very least, doing something incidental to his employment. As we have stated, the decedent was, with his employer’s permission, attending an arbitration hearing on his employer’s premises during his regular business hours. Furthermore, arbitration hearings are the usual and regular legal mechanism to resolve municipal labor disputes. See General Statutes § 7-473c (b). Consequently, the decedent’s death arose during the course of his employment.

The school board incorrectly relies on Spatafore v. Yale University, supra, 239 Conn. 408, to argue that the phrase “incidental to employment” requires the employee’s activity, during which the death or disability occurs, to include some benefit to his or her employer before it can be found that such death or disability arose during the course of employment. Spatafore, however, applies only when the injury leading to the disability or the death occurs off the employer’s premises. As in McNamara v. Hamden, supra, 176 Conn. 547, “[w]hen an employee is on the premises and is within the period of employment . . . it should not be necessary to satisfy the additional test of employer benefit. Rather, the basic test should be remembered and applied: Is this activity incidental to the employment? The meaning of the term ‘incidental’ need not be defined as compulsion by or benefit to the employer in all cases.” (Emphasis in original.) Id., 553.

In sum, because we conclude that the decedent’s death arose out of and in the course of his employment, it follows that his death is compensable and the plaintiff, as the decedent’s statutory dependent, is entitled to workers’ compensation benefits.

II

The school board next claims that the Municipal Employees Relations Act (act), General Statutes §§ 7-467 through 7-477, is controlling as to procedural and substantive matters in an arbitration proceeding, and that the trial commissioner’s interpretation of the act as resolving disputes and, therefore, resulting in a mutual benefit was improper. The school board argues that the trial commissioner improperly looked to the purpose of the act to make factual conclusions that would support a finding of mutual benefit. We disagree.

The school board’s second claim presupposes that the employer benefit test enunciated in Spatafore v. Yale University, supra, 239 Conn. 408, applies to the present case. Because we concluded in part I of this opinion that employer benefit is not essential under the present facts, further inquiry into this claim is unwarranted.

Ill

The school board finally claims that the trial commissioner made findings that were not supported by the evidence. “First, we note that our review of an administrative appeal is limited. Our Supreme Court has established a firm standard that is appropriately deferential to agency decision making, yet goes beyond a mere judicial [rubber-stamping] of an agency’s decisions. . . . Courts will not substitute their judgment for that of the agency where substantial evidence exists on the record to support the agency’s decision, and where the record reflects that the agency followed appropriate procedures.” (Citations omitted; internal quotation marks omitted.) Cabasquini v. Commissioner of Social Services, 38 Conn. App. 522, 525-26, 662 A.2d 145, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995).

The school board contends that the trial commissioner improperly concluded that other job-related stressors, beyond those caused by the arbitration session, had an adverse impact on the decedent and led directly to his death. The school board argues that this finding is contrary to the only medical evidence before the commission, namely, that the decedent’s death was precipitated by the stress of the hearing. Moreover, the school board asserts that other findings that were made by the trial commissioner were erroneous and not germane to the central issue of the case. Finally, the school board contends that there was insufficient evidence to support the conclusion that it was the established custom of the town to allow arbitration during business hours. We disagree.

First, there was sufficient medical evidence to support a finding that the hearing caused the stress that led to the decedent’s death. The school board does not dispute this. In its brief, the school board concedes that the plaintiff has met her burden of proving that the decedent’s death arose out of his employment. The fact that the trial commissioner made additional conclusions is irrelevant and does not affect the outcome of this case. In arguing that the commissioner’s findings were not germane to the case, the school board fails to persuade this court that the evidence supporting the commissioner’s findings was insufficient or that such findings were inconsistent with the evidence.

Second, contrary to the school board’s contention, there was testimony given by the superintendent of schools that the school board’s custom with respect to this particular bargaining unit was to allow negotiations, mediations and arbitrations during work hours. With that fact before the trial commissioner, it cannot be said that there was insufficient evidence to support such a conclusion.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The decedent attended the arbitration hearing as a member of the union that was negotiating with the school board. He was not there as a representative of the school board.

       The school board argues that the holding in Spatafore v. Yale University, supra, 239 Conn, 408, was founded on the employee’s union activity and did not concern whether the activity occurred on or off the employer’s premises. Thus, the school board argues that some employer benefit must be shown whenever union activity is at issue. We disagree and conclude that Spatafore required employer benefit because the employee was injured when returning to work after attending a union meeting, i.e., the employee was off her employer’s premises.
      While not relevant to our holding, it is noteworthy that the Spatafore court recognized that it was possible for employer benefit to be found in situations involving negotiations and agreement. Spatafore itself involved a union meeting where no representatives of the employer were in attendance. Although in this case the review board concluded, inter alia, that the school board benefited from the arbitration proceeding, our affirmance of the review board’s decision does not rest on that ground. As we have stated in the body of this opinion, it was not necessary for this plaintiff to satisfy the test of employer benefit.

       The school board argues that footnote one in McNamara v. Hamden, supra, 176 Conn. 547, requires that employer benefit be shown when an infrequently occurring activity takes place on the employer’s premises. That footnote does not require that employer benefit be shown, but merely gives an example of what can be used to show a connection between an ipjury and employment where that connection appears attenuated, for whatever reason. Such a showing is not applicable here. In the present case, not only was the decedent’s attendance at the arbitration hearing a frequent activity, but its employment connection was obvious enough without having to prove employer benefit.


text:
    TOWN OF WINDHAM v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 17064)
    Foti, Lavery and Daly, Js.

      Argued February 27
    officially released April 28, 1998

      Richard S. Cody, for the appellant (plaintiff).

      Victor R. Perpetua,, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Steven Edelman, pro se, the appellee (defendant).
   Opinion

FOTI, J.

This is an appeal by the plaintiff town of Windham from the judgment of the trial court dismissing its appeal from the decision of the defendant freedom of information commission. On appeal, the town claims that the trial court improperly determined that the affidavits of town employees and officers (1) are public records pursuant to General Statutes § l-18a (d), (2) axe not records pertaining to strategy and negotiations with respect to pending litigation pursuant to General Statutes § 1-19 (b) (4), and (3) are not protected from disclosure by the attorney-client privilege. We agree that the affidavits are not public records pursuant to § l-18a (d) and, therefore, reverse the judgment of the trial court.

The relevant facts are not in dispute. On November 17,1994, a hearing was held before a commission hearing officer to consider the defendant Steven Edelman’s complaints against the town and several of its officers and employees. At the hearing, the town’s attorney proffered the sworn affidavits of certain town officials and employees. The hearing officer did not receive the affidavits into evidence and continued the matter to allow the affiants to testify in person.

On November 18, 1994, Edelman appeared at the office of the first selectman and requested from the town copies of affidavits signed by the town clerk, the executive secretary to the first selectman and the first selectman. The town clerk provided Edelman with a copy of her affidavit. The executive secretary informed Edelman that she did not have a copy of her affidavit. The first selectman, Walter Pawelkiewicz, denied Edel-man’s request by a letter dated November 22, 1994.

By letters of complaint filed with the commission on December 5, 1994, Edelman challenged the town’s denial of his request for access to the affidavits. On April 18, 1995, the original case for which the affidavits had been prepared was adjudicated and resolved. The town’s attorney subsequently provided Edelman with copies of the affidavits on June 30, 1995.

On July 20, 1995, Edelman’s complaint was heard before a commission hearing officer as a contested case. The hearing officer concluded that the affidavits signed by the first selectman, his executive secretary and the town clerk are public records within the meaning of § l-18a (d). The hearing officer also concluded that the affidavits are not exempt from disclosure pursuant to § 1-19 (b) (4) and are not protected by the attorney-client privilege. On October 11, 1995, the commission approved the hearing officer’s report and ordered that “[hjenceforth, the [town] shall strictly comply with the disclosure requirements of [General Statutes] §§ 1-15 and 1-19 (a).”

The town appealed from the commission’s decision. The trial court rendered judgment dismissing the appeal, and this appeal followed.

We first set forth our standard of review. “Judicial review of the conclusions of law reached administratively is . . . limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of discretion.” (Internal quotation marks omitted.) Barnett v. Board of Education, 232 Conn. 198, 207, 654 A.2d 720 (1995). “Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). . . . Perkins v. Freedom of Information Commission, [228 Conn. 158, 164-65, 635 A.2d 783 (1993)].” (Internal quotation marks omitted.) Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995).

The town claims that the trial court improperly determined that the affidavits of town employees and officers are public records pursuant to § l-18a (d). Section 1-18a (d) defines “[p]ublic records or files” as “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.” In applying this statute to the facts found, the commission concluded that the affidavits of the town clerk, the executive secretary to the first selectman and the first selectman are “recorded information prepared and used by a public agency in the conduct of the public’s business and, therefore, constitute public records . . . .”

In its memorandum of decision, the trial court improperly concluded that the affidavits were received by town employees and officers, and, therefore, are public records within the meaning of § l-18a (d). The commission did not address, as the trial court did, whether the affidavits were received by a public agency. Rather, the commission concluded that the affidavits were prepared and used by a public agency. “[T]he limited scope of review set forth in [General Statutes] § 4-183 (j), and expressed by our appellate courts, does not allow [the] result [reached by the trial court]. Here, the trial court improperly traveled a different path rather than determining whether the commission properly trod on the stepping stones of the path it took.” Hartford v. Freedom of Information Commission, 41 Conn. App. 67, 74, 674 A.2d 462 (1996).

On the basis of our thorough review of the record, we conclude that the commission’s decision that the affidavits relate to the conduct of the public’s business and were prepared and used by a public agency is not supported by substantial evidence. At the July 20, 1995 hearing held before a commission hearing officer, the town’s attorney, Richard Cody, testified that the affidavits were prepared by his office to assist him in defending the town against a complaint filed by Edel-man with the commission. Cody also testified that the affidavits were never admitted into evidence in the underlying action. This testimony was undisputed. In addition, Cody’s testimony was corroborated by the November 22, 1994 letter from Pawelkiewicz to Edel-man. A copy of that letter is in the record and states that the affidavits requested by Edelman were “prepared ... by the town’s attorney to prepare for the hearing on [Edelman’s] complaints before the [commission].” Thus, the record clearly reflects that the affidavits requested by Edelman were not prepared by a public agency, but rather by a private attorney to assist him in defending the town against a complaint pending before the commission. The record also reflects that the affidavits were not used by a public agency, but rather by the town’s attorney, who is not a town employee, to prepare for the November 17,1994 hearing before the commission.

We conclude that the commission’s decision that the affidavits are public records pursuant to § l-18a (d) does not reasonably and logically follow from the facts found by the commission. Our conclusion that the affidavits are not public records pursuant to § l-18a (d) makes it unnecessary to address the other issues raised by the town on appeal.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion the other judges concurred.

       The town also claims that the trial court failed to decide whether §§ 1-21j-34 (b) and 1-21J-35 (a) of the Regulations of Connecticut State Agencies govern the discovery and admissibility of evidence in proceedings before the commission. The trial court determined that this issue was not briefed by the town and, therefore, did not address it in its memorandum of decision. On appeal, the town claims that the issue was properly briefed. The town did not, however, move for rectification or articulation of the decision of the trial court. See Practice Book § 4051, now Practice Book (1998 Rev.) § 66-5; Manchester v. Zoning Board of Appeals, 18 Conn. App. 69, 70 n.1, 556 A.2d 1026, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989). Therefore, the record furnishes no basis to conclude that the trial court erred. See Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995) (appellant’s responsibility to secure adequate record for appellate review); Dixon v. Trubisz, 17 Conn. App. 216, 218, 551 A.2d 1259 (1988) (court will not remand case to correct deficiency appellant should have remedied).

       The affidavits were never entered into the record of the case decided on April 18, 1995.

       By letter of complaint filed with the commission on July 11, 1995, Edelman alleged that he is entitled to access to the original affidavits that are the subject of this case. The commission dismissed Edelman’s complaint on May 8, 1996.

       Although copies of the affidavits sought by Edelman were provided by the town prior to the commission’s decision, we conclude that the town’s appeal is not moot. Our Supreme Court has held that where an order issued by the commission is prospective in nature and impacts obligations of the plaintiff in the future with respect to disclosure requests from members of the public, an appeal from that order is not moot even though the requested documents were voluntarily disclosed by the plaintiff prior to the commission’s decision. See, e.g., Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 8-9, 688 A.2d 314 (1997); Gifford v. Freedom of Information Commission, 227 Conn. 641, 649 n.9, 631 A.2d 252 (1993).

       General Statutes § 4-183 Q) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. ...”


text:
    TOWN OF WINDHAM v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 17065)
    Foti, Lavery and Daly, Js.
    Argued February 27
    officially released April 28, 1998

      Richard S. Cody, for the appellant (plaintiff).

      Victor Perpetua, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Opinion

FOTI, J.

The plaintiff town of Windham appeals from the judgment rendered by the trial court dismissing its administrative appeal, taken pursuant to General Statutes § 4-183, from a final decision of the freedom of information commission. The sole issue on appeal is whether a gathering of six town officials on March 20, 1995, constituted a “meeting” within the meaning of General Statutes § l-18a (b).

The undisputed facts are as follows. The Windham board of selectmen is a public agency within the meaning of General Statutes § l-18a (a). On March 20, 1995, four of the selectmen, along with the chairman of the Windham board of finance and the town controller, met for approximately one-half hour. During that meeting, they discussed for five to ten minutes whether, at then-regular meeting on the following day, they would support a proposal by the first selectman that the board go into executive session to discuss a landfill contract matter. The four selectmen, one of whom was the first selectman, arrived at a consensus that they would support the proposal at the next day’s meeting.

The commission ruled that the plaintiff violated General Statutes § 1-21 by holding a meeting without notice. The trial court upheld the commission’s decision that a meeting of the Windham board of selectmen (1) to discuss why an item needed to be considered in executive session, (2) to gather support for such a session, and (3) to reach a consensus was not a communication limited to notice of a meeting or the agenda of a meeting, and, therefore, was a meeting subject to the open meeting requirements of the Freedom of Information Act. General Statutes §§ 1-21 (a) and l-21a (a).

The Windham board of selectmen consists of eleven selectmen. Six members constitute a quorum. At the March 20, 1995 gathering, only four members of the board were present.. As a result, there was no quorum and, therefore, no meeting as defined by § l-18a (b). Our conclusion that the March 20, 1995 gathering was not a meeting makes it unnecessary to determine whether an exemption applies pursuant to § l-18a (b).

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion the other judges concurred.

       General Statutes § l-18a (b) provides in relevant part: “ ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include . . . communication limited to notice of meetings of any public agency or the agendas thereof. ...”

       General Statutes § l-18a (a) provides: “ ‘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.”

       Both parties conceded during oral argument that a quorum of the board was not present at the March 20, 1995 gathering. In addition, there was no evidence presented that it was anticipated that a quorum of the board would be present at the March 20, 1995 gathering. See Grimes v. Conservation Commission, 243 Conn. 266, 270, 703 A.2d 101 (1997) (special meeting of municipal conservation commission qualifies as “meeting” pursuant to § 1-18a [b] where it was anticipated that quorum would be present).