author: Hull, J.

text:
    Connecticut Education Association et al. v. State Board of Labor Relations et al.
    (3288)
    Dupont, C. J., Hull and Daly, Js.

      Argued May 10
    decision released September 17, 1985

      Ronald Cordilico, with whom, on the brief, were William J. Dolan, Constance Augsburger and Kimberly A. Knox, law student intern, for the named plaintiff.

      James C. Ferguson, for the plaintiff Connecticut State Federation of Teachers.

      J. Larry Foy, for the named defendant.

      JoelM. Ellis, with whom, on the brief, was William S. Zeman, for the defendant Connecticut State Council of AFSA Locals, AFL-CIO.

      Joseph I. Lieberman, attorney general, and Robert W. Garvey and Thomas P. Clifford III, assistant attorneys general, filed a brief as amici curiae.
   Hull, J.

This case, which concerns the vital question of the right of displaced administrator unit personnel to bump teacher unit personnel, was reserved on a stipulation under Practice Book §§ 3133 and 3134 for the advice of the Supreme Court by the trial court, Edelberg, J., and was transferred to this court on June 11, 1984. See Practice Book § 3076.

The stipulation provides: “1. The facts upon which the questions arise are as follows:

“a. On July 16,1982, the Connecticut State Council of AFSA Locals, AFL-CIO (hereinafter AFSA) filed with the Connecticut State Board of Labor Relations (hereinafter Labor Board) a petition for declaratory ruling pursuant to Section 4-176 of the Connecticut General Statutes raising certain questions under Section 10-153b— 153c of the Connecticut General Statutes (hereinafter the Negotiations Act) and Section 10-151 of the Connecticut General Statutes (hereinafter the Tenure Act). AFSA’s petition requested a declaratory ruling responsive to the questions set forth in sub-paragraph g, below.

“b. On August 15, 1983, the Labor Board issued a Decision and Declaratory Ruling (hereinafter Ruling) in response to said Petition filed by AFSA (see attached).

“c. On September 12,1983, the Connecticut Education Association, a party to said proceeding before the Labor Board filed a complaint for a declaratory judgment in the Superior Court for Hartford-New Britain at Hartford seeking a determination of the validity of the Labor Board’s said Ruling.

“d. AFSA made an application to be made a party defendant on October 26,1983, which application was granted on November 7, 1983.

“e. The Connecticut State Federation of Teachers [CSFT] made a Motion to Intervene as a party plaintiff on October 26,1983, which Motion was granted on November 28, 1983.

“f. All the pleadings have been closed.

“g. The questions referred to in subparagraph a, above, and which were set forth in said AFSA petition are presented below.

(a) Whether under the Act Concerning School Board-Teacher Negotiations and the Teacher Tenure Act, it is a mandatory subject of bargaining for the administrators’ unit and/or the teachers’ unit that members of an administrators’ unit whose positions have been eliminated or whose positions have been lost to other administrators, may bump into or be assigned to a position in the teachers’ unit, which position (i) is held by a Tenured teacher, (ii) is held by a non-Tenured teacher pursuant to C.G.S. Sec. 10-151(b) or (iii) is unoccupied?

(b) If such a provision were to be negotiated between an administrators’ unit and a school board providing for such bumping or assignment would it be enforceable notwithstanding a lack of agreement by the teachers’ unit with such provision?

(c) If such a provision were to be negotiated between an administrators’ unit and a school board providing for such bumping or assignment would it be enforceable if there was an existing provision in the collective bargaining agreement of the teachers’ unit prohibiting members of the administrators’ unit from bumping members of the teachers’ unit or from being assigned to unoccupied positions in the teachers’ unit?

(d) Whether under the Act Concerning School Board-Teacher Negotiations and the Teacher Tenure Act, it is a mandatory subject of bargaining for the administrators’ unit and/or the teachers’ unit that members of the administrators’ unit whose positions have been eliminated or who have lost their positions to other administrators, may not bump into positions held by members in the teachers’ unit or be assigned to unoccupied positions in the teachers’ unit?

(e) If such a provision is negotiated between a teachers’ unit and a school board prohibiting such bumping or assignment, is said provision enforceable notwithstanding lack of agreement by the administrators’ unit to such provision?

(f) If such a provision were to be negotiated between a teachers’ unit and a school board prohibiting such bumping or assignment, could it be enforceable if there was an existing provision in the collective bargaining agreement of the administrators’ unit permitting its members to bump members of the teachers’ unit or permitting members of the administrators’ unit to be assigned to unoccupied positions in the teachers’ unit?

“h. The Labor Board’s ruling on each of the above questions is set forth in paragraphs a.(i), a.(ii), a.(iii), b., c., d., e. and f. of the Order contained in its said Ruling. [See pp. 258-60, infra.]

“2. The questions upon which advice is sought are the same as those set forth in paragraph lg, above, and they are incorporated herein by reference.

“3. The answers to the questions set forth in paragraph lg, above, will determine, or are reasonably certain to enter into a determination of, the case.

“4. The present determination of the questions will be in the interest of simplicity, directness and economy in judicial action because,

“a. The plaintiffs, both state-wide public school labor organizations, represent in excess of 30,000 public school teachers in Connecticut. The questions raised herein most probably will arise again and again in the Superior Court as teachers are ‘bumped’ by administrators whose positions are being eliminated. This potentially voluminous litigation will take place in the form of appeals under C.G.S. Section 10-151 (also known as the ‘Teacher Fair Dismissal Law’) pending a decision by the Supreme Court.

“b. As school closings occur, administrators will lose their positions and the question of whether they have the right to bump teachers will become increasingly important.

“c. There are many collective bargaining agreements across Connecticut between school boards and administrator units and teacher units containing reduction-in-force clauses which will be affected by judicial determination, thus making a present decision by the Supreme Court necessary.

“d. The issues raised in the Complaint involve matters of substantial public interest and in which delay may work a substantial injustice.”

The ruling referred to in the stipulation contains the following order: “By virtue of and pursuant to the power vested in the Connecticut State Board of Labor Relations by the Act Concerning School Board-Teacher Negotiations and by Section 4-176 of the Connecticut General Statutes and Section 10-152e-26 of the Regulations of Connecticut State Agencies, it is hereby ORDERED and DECLARED that the questions presented in this Petition for Declaratory Ruling are answered as follows:

“a.(i) A collective bargaining agreement between a school board and the bargaining representative for a teacher unit which contains a layoff procedure giving tenured members of the teacher unit rights to bump other tenured members of the teacher unit, must give tenured displaced administrator unit members bumping rights which are equal to the bumping rights given to tenured teacher unit members in that no criteria for determining layoff which disadvantages displaced administrators solely because of their service as administrators may be applied to them. Subject to this equal treatment restriction, the subject of tenured administrator unit members bumping tenured members of the teacher unit is a mandatory subject of bargaining for the exclusive representative of the teacher unit.

“The subject of tenured displaced administrator unit members bumping tenured members of the teacher unit is an illegal subject of bargaining for the bargaining representative of the administrator unit.

“a.(ii) A collective bargaining agreement between a school board and the bargaining representative for a teacher unit which contains a layoff procedure giving non-tenured members of the teacher unit rights to bump other non-tenured members of the teacher unit, must give non-tenured displaced administrator unit members bumping rights which are equal to the bumping rights given to non-tenured teacher unit members in that no criteria for determining layoff which disadvantages displaced administrators solely because of their service as administrators may be applied to them. Subject to this equal treatment restriction, the subject of non-tenured displaced administrator unit members bumping tenured members of the teacher unit is a mandatory subject of bargaining for the bargaining representative of the teacher unit.

“The subject of non-tenured displaced administrator unit members bumping non-tenured members of the teacher unit is an illegal subject of bargaining for the bargaining representative of the administrator unit.

“A tenured displaced administrator unit member must be permitted to bump a non-tenured member of the teacher unit if the tenured displaced administrator is qualified for the position held by the non-tenured member of the teacher unit. Any restriction placed on this right which is contained in a collective bargaining agreement involves an illegal subject of bargaining.

“a.(iii) A displaced member of the administrator unit must be assigned to an unoccupied position in the teacher unit if the displaced administrator is qualified for the position, provided that if a qualified member of the teacher unit whose position has been eliminated or whose position has been lost to another teacher within the meaning of 10-151 (a) (2) also seeks that position in order to retain employment with the school board and the tenure status of the administrator unit member and the teacher unit member is the same (i.e., either both are tenured or both are non-tenured) the question of which person will assume the unoccupied position shall be determined by the criteria for. layoff contained in the teacher unit collective bargaining agreement, except that said layoff procedure is subject to the equal treatment restriction referred to in a.(i) and a.(ii) above.

“Where the tenure status of the two persons in question is different (i.e., one is tenured and one is nontenured) the person with tenured status will be entitled to the position.

“b. No, because the subject of who will be selected for or retained in teacher unit positions is an illegal subject of bargaining for the administrator unit.

“c. The answer here is the same as b. However, the hypothetical provision in the teacher unit collective bargaining agreement would concern an illegal subject of bargaining to the extent that it denies the right of tenured displaced administrator unit members to bump non-tenured teacher unit members and to the extent that it violates the equal treatment restrictions set forth above.

“d. This question is answered in Sections a.(i), a.(ii), and a.(iii) above.

“e. This question is answered in Sections a.(i), a.(ii), and a.(iii) above.

“f. This question is answered in Sections a.(i), a.(ii), and a.(iii) above.”

The labor board rendered an exhaustive and scholarly decision and declaratory ruling to which we can add but little. It clearly displays the labor board’s thoughtful analysis of the questions involved in the light of the history and intent of the pertinent statutes and its administrative expertise in this highly technical area.

The issue involved boils down to two questions: (1) whether General Statutes § 10-153a et seq. (the Teacher Negotiation Act) and General Statutes § 10-151 (the Teacher Tenure Act) when read together, allow an administrator unit member whose position has been eliminated or who has lost his position to another administrator (a displaced administrator) to retain his employment by displacing or bumping a teacher unit member from his position; and (2) if this is allowed, which unit’s bargaining representative is permitted or required to negotiate layoff criteria and procedures. The board concluded that the two statutes permit displaced administrators to bump into the teacher unit and that layoff procedures concerning such bumping situations are a mandatory subject of bargaining for the teacher unit bargaining representative. Any such agreement must give displaced administrators bumping rights equal to teacher unit members, in that no criteria for determining layoff procedures which disadvantages displaced administrators solely because of their service as administrators may be applied to them.

The plaintiff Connecticut Education Association (CEA) claims: (1) that the usual deference paid by the courts to the construction of a statute by the agency charged with its administration is inapplicable in this case since this subject is beyond the board’s expertise and inconsistent with General Statutes § 10-153a et seq. because the statute implies that the court may exercise a more flexible review; (2) that the labor board erred in concluding that displaced administrators can bump into a teacher unit; (3) that the labor board erred in its corollary conclusion that the subject of administrators bumping into a teacher unit is a mandatory subject for bargaining by the teacher unit; and (4) that the labor board’s decision circumvented basic tenets of labor law, specifically those of separation of units and exclusivity of dealing.

The plaintiff, Connecticut State Federation of Teachers, (CSFT) claims error in a narrower area than does the CEA. The CSFT agrees with the board’s conclusions concerning bumping into a teacher unit and the requirement that the teacher unit must bargain collectively concerning this subject. It claims, however, that the labor board erred by administratively creating an equal treatment restriction on the teacher unit’s negotiation of a layoff procedure. The CSFT claims, as does the CEA, that the board’s decision undermines the fundamental principles of General Statutes § 10-153a et seq. (the Teacher Negotiation Act) concerning separate bargaining units, and the principle of exclusivity in its assigned area for each unit.

The defendant appellees, Connecticut State Board of Labor Relations and Connecticut State Council of American Federation of School Administrators Locals, AFL-CIO, agree with the decision of the board.

We conclude that the board’s decision and declaratory ruling were correct and adopt its answers to the questions propounded as the answers of this court.

I

The Statutory Framework

The Teacher Tenure Act, General Statutes § 10-151, as amended by Public Acts 1983, No. 398, § 1, effective on July 1, 1983, provides in pertinent part: “(a) For the purposes of this section: ... (2) The term ‘teacher’ shall include each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the state board of education .... (c) The contract of employment of a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section; otherwise the contract of such teacher shall be continued into the next school year unless such teacher receives written notice by April first in one school year that such contract will not be renewed for the following year. . . . (d) The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause. Nothing in this section or in any other section of the general statutes or of any special act shall preclude a board of education from making an agreement with an exclusive bargaining representative which contains a recall provision. ...”

This section recognizes that a teacher who is tenured may be terminated in accordance with a procedure negotiated by an exclusive employees’ representative and the board of education, subject to the proviso that when a tenured teacher’s position is eliminated such tenured teacher may bump into a position held by a nontenured teacher if the tenured teacher is qualified for the position bumped into.

In 1965, the legislature enacted Public Acts 1965, No. 298, § 1, General Statutes § 10-153b, which established collective bargaining for teachers. The Teacher Negotiation Act; General Statutes §§ 10-153a through 10-153n; provides that representatives designated or elected in accordance with this section shall be the exclusive representative of all the employees in such unit for the purposes of negotiating with respect to salaries and other conditions of employment. In 1967, General Statutes, Cum. Sup. 1965, § 10-153b of the Teacher Negotiation Act was amended by Public Acts 1967, No. 752, § 1, to separate bargaining units clearly as follows: “A representative organization may be designated or elected for such purpose by a majority of all employees below the rank of superintendent in the entire group of such employees of a board of education or school district or by a majority of such employees in separate units as described in subsection (b). . . . ” In 1969, General Statutes, Sup. 1969, § 10-153b was further amended by Public Acts 1969, No. 811, § 2 to clarify the composition of these bargaining units. Section 10-153b, as amended, provided in pertinent part that: “(a) Whenever used in sections 10-153b to 10-153f, inclusive, of the general statutes: (1) The ‘administrators’ unit’ means those certified professional employees in a school district who are employed in positions requiring an intermediate administrator or supervisor certificate, or the equivalent thereof, and are not excluded from the purview of this act. (2) The ‘teachers’ unit’ means the group of certified professional employees who are employed by a town or regional board of education in positions requiring a teaching or special services certificate and are not included in the administrators’ unit or excluded from the purview of this act.”

II

Deference to be Accorded to the Labor Board’s Construction of Both the Teacher Negotiation Act and the Teacher Tenure Act

The plaintiff CEA argues that deference to the labor board’s decision and declaratory ruling should not be accorded in this case because the board has no express statutory authority to render decisions pursuant to General Statutes § 10-151 (the Teacher Tenure Act) and because it did so in an arbitrary manner. The later claim is just another way of arguing that the board erred and will not be considered separately at this point.

Concerning the board’s authority, the CEA conceded that the labor board has the authority to rule on General Statutes §§ 10-153a through 10-153n (the Teacher Negotiation Act) but argued that the labor board does not have primary authority concerning General Statutes § 10-151 (the Teacher Tenure Act). Since it was necessary for the labor board, in interpreting the Teacher Negotiation Act, to read it together with the Teacher Tenure Act, we conclude that the usual deference shown to administrative decisions should be accorded in this case. The portion of the Teacher Tenure Act involved deals primarily with the subject matter of collective bargaining. It would exalt form over substance, in view of the necessary interrelationship of the two acts involved in this case, to separate the two acts when considering the deference due to administrative decisions.

“[I]t is also well established that ‘courts should “accord deference to the construction given the statute by the agency charged with its enforcement.” ’ ” State Board of Labor Relations v. Board of Education, 177 Conn. 68, 74, 411 A.2d 28 (1979), quoting Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978); see also Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 50. This deference by the courts to administrative decisions is based on several factors. “These factors are the respect due to the governmental agencies charged with administration, their competence, expertness, experience, and informed judgment and the fact that they frequently are the drafters of the law they interpret. . . . ” 2 Am. Jur. 2d, Administrative Law § 242.

The appropriate deference which should be accorded by our state courts to decisions of the labor board was set forth in an earlier case arising under the Teacher Negotiation Act in which the labor board was required to construe that act in light of the Connecticut Teacher Certification Act, § 10-145 of the General Statutes: “[Cjourts should ‘accord great deference to the construction given the statute by the agency charged with its enforcement.’ Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978); Investment Company Institute v. Camp, 401 U.S. 617, 627, 91 S. Ct. 1091, 28 L. Ed. 2d 367 (1971); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975). We are mindful moreover of the fact that traditionally a very large degree of discretion has been accorded labor boards as regards bargaining unit determinations. Success Village Apartments, Inc. v. Local 376, [175 Conn. 165, 168, 397 A.2d 85 (1978)]; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 165, 61 S. Ct. 908, 85 L. Ed. 1251 (1941).” Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 74, 411 A.2d 28 (1979).

We note further that an amicus curiae brief filed by the attorney general et al. on behalf of the state board of education fully supports the labor board’s construction of the Teacher Tenure Act.

Ill

Claimed Violation by the Labor Board of the Principles of Separate Units and Exclusivity of Dealing

Although these two principles were briefed and argued separately by the plaintiffs, we conclude that they are merely two aspects of the same long standing general principle of labor law and we will consider them together.

The labor board declared certain legal principles underlying the dispute in this case as follows: “It is well settled in labor law that layoff procedures are a mandatory subject of bargaining. Ford Motor Co. v. Huffman, 345 U.S. 330 [73 S. Ct. 681, 97 L. Ed. 1048 (1953)] .... It is also settled in labor law that, generally speaking, the exclusive bargaining representative for one bargaining unit may not negotiate the conditions of employment of members of a second bargaining unit, at least not without the consent of the bargaining representative of the second bargaining unit where the negotiations would impose a detriment on the members of that unit. . . . Likewise, it is ordinarily illegal for the exclusive bargaining representative of one unit to require the bargaining representative of a second unit to bargain for the terms and conditions of employment of employees in the first unit. Local 1219, Int’l Assn. of Firefighters v. Conn. Labor Relations Board, 171 Conn. 342 [370 A.2d 952] (1976) ....

“Aside from what the duty to bargain in labor relations statutes may otherwise require, both this Labor Board, other labor boards and courts have recognized that the borders of negotiability are sometimes affected or fixed by statutes other than the labor relations statutes themselves and that these other statutes must be accorded their intended force and effect. See e.g., Federal anti-trust law restrictions, United Mine Workers v. Pennington, 381 U.S. 657, [85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965)]; payroll deductions required by federal and state law, Town of East Haven, [State Board of Labor Relations] Decision No. 1337 (1975); retirement provisions set by state law, Jacobs v. New Jersey Highway Authority, 54 N.J. 393 [255 A.2d 266] (1969); State v. State Supervisory Employees Ass’n, 78 N.J. 54, 98, [393 A.2d 233] LRRM 3267 (1978); Fairlawn Ed. Assn. v. Board of Education, 102 LRRM 2207 (1979).”

The labor board then found that it was necessary to construe the Teacher Tenure Act as well as the Teacher Negotiation Act to decide the questions presented. In doing so, it relied on the presumption that the legislature enacts statutes in view of other existing statutes and that when viewed together the statutes as a whole are intended to be read so as to make one consistent body of law, citing Budkofsky v. Commission of Motor Vehicles, 177 Conn. 588, 419 A.2d 333 (1979).

In analyzing the effect of the Teacher Tenure Act, the labor board noted: (1) Under General Statutes § 10-151 (a) (2), administrator unit members and teacher unit members are considered as one class of teachers for purposes of rights under the tenure act; (2) under General Statutes § 10-151 (d) (5), a displaced tenured teacher can bump a nontenured teacher and a tenured teacher can bump a tenured teacher; (3) under General Statutes § 10-151 (d) (5) nontenured teachers may bump nontenured teachers; (4) under General Statutes § 10-151 (d) (5) such bumping shall occur: “in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education”; (5) in the Teacher Tenure Act no preference is expressed for the retention of teacher unit teachers over displaced administrator unit teachers; (6) the clear legislative intent is that administration unit teachers are to have the same degree of employment security as teacher unit personnel including the right to bump in accordance with a layoff procedure; and (7) teachers, whether in the administrative unit or teacher unit, are to be treated equally as members of the same class and administrators who are displaced must be given the same right to bump teachers in the teacher unit as are members of that unit.

We concur entirely with the board’s reasoning and conclusions concerning this issue. The single determinative issue of statutory interpretation rests firmly on the creation of one class of teachers, some of whom are administrators, and all of whom have equal bumping rights as teachers. Although the principles of separateness of units and exclusivity of dealing are generally applicable, they must yield to the legislative determination that for purposes of bumping rights the classification of teachers takes precedence over these concepts. This conclusion is consistent with Delagorges v. Board of Education, 176 Conn. 630, 410 A.2d 461 (1979). In Delagorges, the court held that the transfer of two high school administrators to classroom positions was merely a reassignment which did not entitle the administrators to judicial review of the board of education’s decision under the Teacher Tenure Act. The Delagorges case did not involve bumping rights. Nevertheless, the court’s conclusion that administrators did not have tenure as administrators but only as teachers firmly buttresses the conclusion we have reached.

The arguments of the plaintiff CEA regarding separateness of units and exclusivity of dealing are wide of the mark. There is no question concerning the law in this regard. Moreover, the CEA’s reliance on these principles hopscotches over the legislature’s creating out of the class of teachers, who happen for most purposes to be members of separate units, an overall unit for purposes of employment security.

Any lingering doubt that may be raised concerning the court’s conclusion is dispelled by examination of General Statutes § 10-145d, not cited by the labor board or any parties to this case. This section concerns, in pertinent part, the adoption of state board regulations for teacher certificates and the adoption of regulations for school business administrators. Subsection (d) provides: “Any individual certified as a school business administrator pursuant to regulations adopted by the state board in accordance with the provisions of subsection (b) of this section, shall not be deemed to be included in the definition of ‘teacher’ in subdivision (2) of subsection (a) of section 10-151 solely by reason of such certification, provided any such individual who holds a regular teacher’s certificate issued by the state board of education and is employed as a teacher, principal, supervisor or school superintendent shall not be excluded from such definition.” This definition, not otherwise related to the issues in this case, emphasizes strongly the all important concept in the Teacher Tenure Act that for its purposes a certified teacher remains a part of the teacher class regardless of what other administrative positions might be attained.

Concerning the next question, we cannot improve on the reasoning or exposition of the labor board which follows:

“Having proceeded this far, we must now decide which bargaining representative (i.e., administrator unit’s or teacher unit’s or both) has the right to negotiate a layoff procedure which will determine the circumstances under which displaced administrators may bump teacher bargaining unit members. As was indicated earlier in this opinion and as was stated expressly in Chemical Workers v. Pittsburgh Glass Co., 404 U.S. 157, 92 S. Ct. 383, [30 L. Ed. 2d 341], 78 LRRM 2974 (1971), the general rule in labor relations law is that the scope of the bargaining unit controls the extent of the right and duty to bargain. In other words, those subjects which can be termed a mandatory subject of bargaining between an employer and the bargaining representative for a particular unit are only those subjects which concern the conditions of employment of the employees in that bargaining unit. However, it is sometimes contrary to the reality of the workplace to argue that a given subject impacts only the members of a single bargaining unit. It is obvious that in the most literal sense of the phrase, conditions of employment of both administrator unit and teacher unit members will be affected by procedures which determine bumping rights of displaced administrators vis a vis members of the teacher unit. Hamden Board of Education, [State Board of Labor Relations] Decision No. 2087 (1981). This reality raises the question of whether it is necessary for both units to negotiate identical contractual provisions covering cross-unit bumping in order for such questions to be determined by the collective bargaining process. We think the answer to this question is no. The Negotiations Act provides for a highly structured negotiation and impasse resolution procedure (i.e., mediation and arbitration) which throughout is directed to only bilateral (i.e., single unit) bargaining between boards of education and unions. Section 10-153Í of the Negotiations Act. There is no guidance in either the Negotiations Act or the Tenure Act on how such multilateral bargaining would be handled. Given the lack of guidance for multilateral bargaining and what we see as extreme if not insoluble procedural and practical difficulties to such an approach, the likelihood for successful multilateral collective bargaining to occur on the subject in question appears to be remote at best. This result would seriously frustrate the often stated policy of our State embodied in our labor relations statutes (and in the Tenure Act with respect to layoff procedures) that conditions of employment for employees who have chosen to become organized for purposes of collective bargaining should be resolved through the collective bargaining process. See, e.g., West Hartford Education Assn. v. DeCourcy, [162 Conn. 566, 295 A.2d 526 (1972)]; Connecticut State Board of Labor Relations v. Board of Education, [177 Conn. 68, 411 A.2d 28 (1979)]; New Haven v. State Board of Labor Relations, 36 Conn. Sup. 18 [410 A.2d 140] (1979). In addition, and presumably with legislative awareness of the bilateral bargaining framework of the Negotiations Act, Section 10-151 (d) (5) (A) itself speaks in singular terms of a ‘layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization.’ We conclude that the Legislature did not intend to require that cross-unit bumping questions be resolved by ensnarling school boards and bargaining representatives in multilateral negotiations. The question is therefore narrowed to whether it is the administrator unit bargaining representative or the teacher unit bargaining representative which has the obligation and the right to negotiate layoff procedures which cover the subject of cross-unit bumping. In other words, for which bargaining unit is this subject a mandatory subject of bargaining. We believe that it is the teacher unit bargaining representative. As shall be explained, our decision is based on considerations of reasonableness and principles of labor relations law.

“As has been stated, procedures for bumping of teacher unit members by displaced administrators concern conditions of employment for members of both units. However, it is significant that the position which the competing applicants would be seeking is a position in the teachers’ unit. In other words, the question in such conflicts will always be one of [sic] which applicant is entitled to a teacher unit position. It therefore seems more logical and appropriate to us that the layoff procedure in the teacher unit collective bargaining agreement should control the determination of which person is entitled to such a position. In addition, there is no doubt that a procedure which provides opportunity for displaced administrators to bump into a teacher unit position must constitute a benefit and not a detriment to displaced administrators. In Regional School District #18 Teachers Association, [State Board of Labor Relations Decision No. 2003 (1981)], we distinguished the conferring of such a benefit on displaced administrators from cases in which one bargaining unit’s representative attempted to impose a detriment on members of another bargaining unit. We also stated that negotiating an advantageous bumping benefit for administrators did not constitute a breach of the teacher unit representative’s duty of fair representation to its own bargaining unit members and that such a provision is consistent with the public policy of the State embodied in the Tenure Act. Writing for the Labor Board in that decision, our late Chairman Fleming James, Jr. thoroughly discussed these points as follows:

“The Association points out that there are in the district two distinct bargaining units: one for teachers, another for administrators. This much is conceded. It then argues that, as the representative of the teachers’ unit, the Association may not legitimately be required to bargain about giving lay-off rights to members of the administrators’ unit in the event of reduction of professional personnel. Such a matter, so runs the argument, is an illegal subject of bargaining for the Association because it represents the teachers exclusively and has no authority to represent administrators, and because the School Board’s proposal would compel the Association to breach its duty of fair representation of its own unit. We reject these claims and hold that the matter of layoff rights for administrators is not an illegal subject of bargaining for the Association on the grounds claimed.

“The Association’s first point seeks to draw on the authority of our decisions in City of Bridgeport, Dec. No. 1648 (1978); City of Middletown, Dec. No. 1669 (1978); and City of New London, Dec. No. 1128 (1973). In these cases we held that the parties to a contract could not by its terms interfere with or impair the rights under our labor laws of third parties who were not privies to the contract. Thus we held that a clause in a firefighter’s contract that bound the city to give to firemen any greater benefits than policemen were able to negotiate in a later contract with the police union imposed an illegal restraint on the police union’s negotiation rights and therefore constituted a violation of the Municipal Employee Relations Act. See also Local 1219, Int’l Assn. of Firefighters v. Conn. Labor Relations Board, 171 Conn. 342 [370 A.2d 952] (1976). This line of cases is inapplicable to the present situation. The clause in the present contract with the teachers seeks to impose no burden or disadvantage on the administrators. It seeks instead to accord them an advantageous option. In no way that we can see would this interfere with the administrators’ statutory rights. Nor is there any general principle that a union is powerless to make concessions for its bargaining unit in favor of outsiders to the unit. It may, for instance, agree that bargaining unit work may be done by supervisors or by independent contractors under specified circumstances.

“The Association’s second point is that it will breach its duty of fair representation if it agrees to lay-off rights for administrators that are disadvantageous to members of its own unit. As a broad general proposition this cannot stand analysis. The whole process of collective bargaining is one of give and take—of compromise. And in the course of this process each side often yields to a demand of the other so that the particular result is disadvantageous to the party who yields. If a union breached its duty of fair representation of unit members every time it made a concession, collective bargaining would be impossible.

“Conceivably some concessions might be so great and so improvident as to amount to be a betrayal of a union’s obligation, but there is no evidence even suggesting that this was the case here. On the contrary the lay-off provisions of the existing contract conform to the provisions of the State Teachers’ Tenure Act which presumably embody the public policy of the State. [General Statutes] Section 10-151 (b) and (c). See Delagorges v. West Haven Bd. of Ed., 176 Conn. 630 [410 A.2d 401] (1979)

As before, we find the labor board’s conclusions unexceptionable.

Finally the labor board decided that: “Any layoff procedure which is negotiated must, in light of the principle of equal treatment embodied in Section 10-151 (a) (2) of the Tenure Act, not discriminate or in any way disadvantage a displaced administrator solely because of his service as an administrator. In other words, all criteria which determine the bumping rights of displaced administrators vis a vis teacher unit members must also be capable of application to teacher unit members and must in fact be applicable to teacher unit members. To the extent that a proposal would violate this stricture it is an illegal subject of bargaining because it conflicts with the Tenure Act and for the same reason to the extent a provision in a teacher unit collective bargaining agreement violates the stricture, it is void and unenforceable to the extent of its illegality.”

We concur with this conclusion which logically and necessarily follows from the Teacher Tenure Act, once the threshold question of equal bumping rights for administrators and teachers has been determined.

For the reasons stated, we adopt in toto, as the answers of this court to the reserved questions, the answers promulgated by the labor board as set forth above.

No costs will be taxed in this court in favor of either party.

In this opinion the other judges concurred.

       For simplicity we will use throughout the term ‘ ‘bumping’ ’ as it is commonly used in labor law parlance.

       In 1983, General Statutes § 10-151 was amended by Public Acts 1983, No. 398, § 1, effective July 1,1983. As a result of this amendment, subsections (a) through (f) were rewritten and renumbered. The reference in this opinion are to the subsection numbers as they existed prior to the 1983 amendments.

       The criteria most often set forth in collective bargaining agreements are either various types of seniority and/or considerations of ability or relative ability.

       The State Board of Education as amicus curiae joined with the other appellees in supporting the board’s decision.

       The changes made by Public Acts 1983, No. 398 have no bearing on the question in the present case. That act, effective on July 1,1983, expressly states that it does not apply to “layoff, nonrenewal or termination proceedings initiated prior to July 1, 1983.”

       This bumping provision was enacted as a result of Garovoy v. Board of Education, 178 Conn. 618, 424 A.2d 297 (1979).

       Although subsection (d) of General Statutes § 10-145d was not effective until July 1,1984; Public Acts 1984, No. 255, § 8; it is a helpful expression of legislative intent. “ ‘An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.’ Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977).” Lee v. Board, of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980).

       We offer no explanation of the apparent conflict between this section and General Statutes § 10-151 (a) (2) which restricts the term teacher to those certified employees below that of the superintendent.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Chester Orsini v. John R. Manson, Commissioner of Correction
    (3802)
    Hull, Borden and Daly, Js.
    Argued June 11
    decision released September 17, 1985

      Mark Rademacher, with whom, on the brief, was John R. Williams, for the appellant (petitioner).

      CarlSehuman, assistant state’s attorney, with whom, on the brief, were Kevin Kane and Paul E. Murray, assistant state’s attorneys, for the appellee (respondent).
   Borden, J.

The petitioner appeals from the judgment of the trial court dismissing his petition for a writ of habeas corpus challenging the validity of his convictions of larceny in the second degree, conspiracy to commit larceny in the second degree, and being a persistent offender. This case is the aftermath of State v. Orsini, 187 Conn. 264, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982), in which the Supreme Court sustained those convictions.

The petitioner claims on appeal that he was denied due process of law because of the admitted failure of the state to disclose, at his original trial, the fact that two of the state’s witnesses were under arrest for pending unrelated state charges when they testified in that trial. The trial court in this case dismissed the petitioner’s petition because he had not established a miscarriage of justice. We find no error.

The petitioner’s convictions arose from a series of three burglaries and thefts committed by Morris Ashcroft and some companions. The petitioner purchased weapons from Ashcroft which were the fruits of the burglaries. State v. Orsini, supra, 266-67.

After our Supreme Court rejected his direct appeal and the United States Supreme Court denied certiorari, the petitioner filed this action. His revised petition alleged essentially that the state withheld exculpatory information consisting of the arrest of and pending charges against three of the state’s witnesses in his original trial: Ashcroft, Walter Hazuka and James Hirst. In this appeal, he has failed to brief any claims regarding Hirst, which claims are considered abandoned. State v. Gradzik, 193 Conn. 35, 44 n.11, 475 A.2d 269 (1984). We, therefore, confine our discussion to the claims regarding Ashcroft and Hazuka.

At the petitioner’s criminal trial, held in the Superior Court for the Middlesex judicial district, he made an oral, pretrial request of the state’s attorney for the record of pending arrests of and criminal charges against any of the state’s potential witnesses, he filed a written motion requesting “any exculpatory information or materials,” and he subpoenaed any state police records regarding Ashcroft. The state’s attorney, in accordance with his open file policy, permitted the petitioner’s attorney to examine his file. Also, having received assurances from William Doyle, his inspector, that no state’s witnesses had other charges pending against them, he informed the petitioner’s attorney of that fact. The petitioner knew that Ashcroft had been arrested and was facing criminal charges arising out of the burglaries and thefts which were the basis of the charges against the petitioner. The state’s attorney also replied in writing to the petitioner’s motion that, with one exception not relevant here, he had no exculpatory material. The state police responded to the petitioner’s subpoena that there were no records regarding Ashcroft.

In fact, both Ashcroft and Hazuka were facing other, unrelated state charges in geographical area number nine of the Court of Common Pleas, located in Middle-town. Ashcroft was facing state police charges of attempted first degree larceny by extortion. Hazuka was facing charges of second degree reckless endangerment, illegal discharge of firearms, carrying a dangerous weapon and possession of marihuana.

The state concedes, as it must, that all these charges should have been disclosed to the petitioner, because they would have furnished grist for the mill of cross examination based on “possible bias or interest resulting from inducements made by the [state].” United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). “Information that a witness has been arrested, is being prosecuted, or has confessed to a crime, tends to show that the state has power over a witness which may induce him to give testimony which will win favor with the state. ...” State v. Grasso, 172 Conn. 298, 302, 374 A.2d 239 (1977).

This does not end our inquiry, however. “To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.” D’Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984). The fact that the non-disclosed evidence was exculpatory, in the sense that it could have been used to impeach Ashcroft and Hazuka; see United States v. Bagley, supra; is not dis-positive. It must also be “material” in the constitutional sense. Id., 678-81.

We find fresh and authoritative guidance in the very recent decision of the United States Supreme Court in United States v. Bagley, supra. Where the suppression involves a “failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination . . . such suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent with ‘our overriding concern with the justice of the finding of guilt,’ United States v. Agurs, [427 U.S. 97, 112, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)], a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” United States v. Bagley, supra, 678.

A majority of the Bagley court agreed on a further refinement of the standard of materiality. Where there has been no request for exculpatory evidence, or, as in this case, where there has been either a general or a specific request, “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id., 682. Where the suppressed evidence is cumulative, however, of what was already placed before the jury by other evidence, it is not material in the constitutional sense. United States v. Sperling, 726 F.2d 69, 71-73 (2d Cir.), cert. denied, 467 U.S. 1243, 104 S. Ct. 3516, 82 L. Ed. 2d 824 (1984); see State v. Baker, 195 Conn. 598, 609-610, 489 A.2d 1041 (1985).

With these principles in mind we analyze the materiality of the suppressed evidence.

I

Morris Ashcroft

The state concedes that Ashcroft was its key witness at the original trial. After the first burglary, Ashcroft went to a gas station owned by Thomas Cestaro, who told Ashcroft that the petitioner would be a potential customer for the guns. Ashcroft testified essentially that after committing each burglary he met with the petitioner and sold him the stolen guns, telling the petitioner in each instance that they were stolen.

Ashcroft also testified under direct and redirect examination that he was under arrest for larceny in the first degree and burglary in the third degree in connection with these crimes, and the jury was informed that he had not yet pleaded to those charges. His redirect examination also disclosed to the jury that he lived in Ontario, Canada, that he had met voluntarily with the Connecticut state police in Ontario and that he had returned voluntarily to Connecticut.

His cross examination, which consumed eighty-one pages of transcript, further emphasized the pending charges against him. It also elicited that he had not been charged with conspiracy, a charge for which the petitioner was being tried, and that he had been released on a nonsurety bond.

All of this evidence provided a substantial basis for the jury to consider, and for the petitioner to argue, that Ashcroft had been given inducements by the state to color, or even concoct his testimony against the petitioner. As our Supreme Court has already noted, “[t]he [petitioner] was not inhibited . . . from exploring the motivations of the witnesses for testifying in relation to the disposition of any pending criminal charges, inquiries which were in fact vigorously pursued at trial without restriction.” State v. Orsini, supra, 269. “The present case . . . does not involve any direct restriction on the scope of cross-examination. The defense was free to cross-examine the [witness] on any relevant subject, including possible bias or interest resulting from inducements made by the [state].” United States v. Bagley, supra, 678. It is clear that the jury believed Ashcroft, even though they were faced with the facts that he was being given quite deferential treatment by the state despite his central, active role in the very criminal scheme at issue, and that he was being equally cooperative with his governmental benefactors. We cannot say, therefore, that had they also been informed that he was facing other, unrelated state criminal charges, it is reasonably probable that their verdict would have been different. The evidence in question was cumulative. We fail to find “ ‘a probability sufficient to undermine confidence in the outcome.' "Id., 682.

The petitioner spent part of his brief and much of his oral argument in this court arguing a claim which is not properly before this court. At the very end of his case in chief at the hearing on his petition, the petitioner introduced, through Dennis Fennessy, a probation officer, records of the department of adult probation concerning Ashcroft, who, prior to his arrest for the burglaries and larcenies at issue here, was being supervised on accelerated rehabilitation arising out of other, pre-existing charges. Among these records was the following handwritten notation of the probation officer: “[Probation officer] has telephone conversation with [Connecticut state police] detective Spencer—they have a sup. crt. bench warrant for [Ashcroft] charging Burg. 3d° and Larc. 1st0 [a reference to the burglaries and larcenies involved here]—They will not extradite—Det. Spencer and Bill Doyle have talked to [Ashcroft]—if he will testify against a ‘fence’ and return voluntarily they may recommend a suspended sentence.” The entire testimony of Fennessy regarding this notation is quoted in the footnote. The same records indicate that, in fact, Ashcroft did receive a suspended sentence.

Approximately two months later, after the hearing had been completed and on the date set by the court for filing of simultaneous briefs, the petitioner filed a motion to amend his revised petition in order to add an additional claim that “[t]he State further withheld from him the exculpatory information that the State had promised Ashcroft a suspended sentence on his pending criminal charges if he would testify against the petitioner.” The state objected on essentially three bases: (1) unreasonable delay by the petitioner in moving to revise his petition; (2) the petitioner could have moved to revise during his pretrial preparation or during the trial, rather than waiting and requiring the state to write a simultaneous brief in response to a petition which the petitioner intended to amend; and (3) prejudice to the state, grounded on its assertion that, had it known that an undisclosed promise of leniency was being claimed, it would have called witnesses, namely the state’s attorney and Doyle; regarding whether such promises were made.

The trial court, in its memorandum of decision dated November 26,1984, noted both the petitioner’s motion to revise and the state’s objection, but it neither granted the motion nor made any finding of fact regarding the petitioner’s new claim. The petitioner took no further steps to secure a ruling on this motion or to require the trial court to make a finding based on the evidence regarding this claim. See Gennarini Construction Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 66, 496 A.2d 539 (1985).

Despite this history, and despite the petitioner’s disregard for his obligation as the appellant to present an adequate appellate record upon which his claim can be reviewed; State v. Cunningham, 3 Conn. App. 353, 358, 488 A.2d 834 (1985); he disingenuously attempts in his brief to elevate this evidence to a full blown finding that “Bill Doyle of the State’s Attorney’s office had entered into an agreement under which Ashcroft was promised a suspended sentence if he would testify against the petitioner,” and that “the chief prosecution witness actually had made a deal in which he would receive a suspended sentence in exchange for his testimony against [the] petitioner . . . .” This claim is simply not before us on this appeal.

First, we note that the trial court never acted on the petitioner’s motion to make this claim part of his case, and he made no attempt to require it to do so. The case was neither pleaded nor tried on a claim of promises of undisclosed leniency. The notation in the record on which the petitioner relies is not compelling that there was a promise to or agreement with Ashcroft for a suspended sentence. It is not clear, for example, that the conversation with Ashcroft included Spencer’s and Doyle’s purported intention to recommend a suspended sentence. See footnote 3 and accompanying text. The existence of such a promise or agreement would have been a factual determination for the trial court, which we cannot make from this record. Certainly, had there been such a claim, the state was entitled to adequate notice so that the critical witnesses could be brought forward. The nature and timing of the petitioner’s claim in this regard virtually precluded such a response by the state.

Second, the lateness of such a claim is particularly significant here. The petitioner’s original judgment of conviction was in 1976, and was affirmed by the Supreme Court in June, 1982. His original habeas corpus petition was filed in October, 1982. In November, 1982, the state requested that the petition be revised to be made more specific. The petitioner did not respond to this request until the state moved for a nonsuit in February, 1983, which the court granted unless the petitioner complied with the request by May 15,1983. On May 13,1983, the petitioner filed his revised petition, on the basis of which this case was tried in July, 1984. During all this time, while the petitioner was free on bond, he filed numerous documents, both through counsel and pro se, in the trial court and in the Supreme Court, making various allegations. One of those, filed in 1979, asserted that Doyle had promised Ashcroft that he would help Ashcroft become a police officer in Canada if Ashcroft would testify against the petitioner. Thus, long before this case was tried, the petitioner was no stranger to the claim of undisclosed promises to Ashcroft.

We, therefore, decline to consider this claim of the petitioner. It was neither pleaded nor litigated, there is no factual finding to support it, we cannot supply such a finding, and the petitioner had ample time and opportunity to raise it properly, which he failed to do.

II

Walter Hazuka

Hazuka testified in the original trial that he committed the first burglary with Ashcroft, and that after the burglary they took the stolen goods to Cestaro’s gas station where Hazuka was employed. He also testified that he had, on an unspecified occasion, seen the petitioner at the gas station and that the petitioner was not doing business there. Applying the principles articulated by United States v. Bagley, supra, we conclude that the failure to disclose Hazuka’s unrelated charges was not material.

First, the importance to the state’s case of the testimony of a witness is a significant factor in determining whether suppression of potentially impeaching evidence undermines confidence in the outcome. It cannot be said that Hazuka, unlike Ashcroft, was an “essential link in the state’s case . . . .” State v. Grosso, 172 Conn. 298, 302, 374 A.2d 239 (1977). His entire testimony, both direct and cross examination, was relatively brief, and he mentioned the petitioner but once. There was no dispute at the trial that the guns were stolen and that the petitioner had bought them. The only dispute was whether the petitioner knew that they were stolen, an issue on which Hazuka’s testimony shed little, if any, light.

Second, the petitioner established in his cross examination that, despite the facts that Hazuka committed the burglary with Ashcroft and that Ashcroft paid him for his services, he had not been arrested in connection with the case. The jury knew, therefore, that Hazuka had not even been arrested despite his role as a burglar and thief in the transaction before it. The evidence in question was cumulative. We cannot say that it is reasonably probable that, had the jury known that Hazuka also had other, unrelated and less serious charges pending against him, the outcome would have been different. United States v. Bagley, supra, 682-84.

There is no error.

In this opinion the other judges concurred.

       The trial court certified that questions are involved in this decision which ought to be reviewed by this court. General Statutes § 52-470 (b).

       The state also concedes that the nondisclosure of this evidence constitutes “suppression,” within the meaning of that term under Brady v. Mary

        land, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny, “irrespective of the good faith or bad faith of the prosecution.” Id., 87. We note in this connection that the trial court in this case made a specific finding that “there was no scheme or plan in the state’s attorney’s office to withhold any information from the petitioner or his attorney at the time of the original trial.”

       “Q [By Mr. Williams, the petitioner’s attorney]: As a matter of fact this report indicates that on September—I’m sorry, on December 9th, 1975, that the Department of Adult Probation was advised by Detective Spencer (phonetic spelling) of the Connecticut State Police that the superior court bench warrant had issued for Mr. Ashcroft, but that the State Police would not extradite him. That Detective Spencer and Bill Doyle have entered into an agreement under which if Ashcroft quote, will testify against a fence and return voluntarily, they may recommmend a suspended sentence. Is that right?
      “Mr. Schuman: Well your Honor I object to Mr. William’s continual leading questions. In addition the report speaks for itself.
      “Mr. Williams: The report does speak for itself but I want to clarify on the record the point that I think is relevant too your Honor, in connection with this particular exhibit.
      “The Court: You may answer. Obviously the exhibit speaks for itself.
      “A: That is correct that there is a notation of discussion about the charges, fact that there was not extradition in that the hope was that this person would testify against a quote, return fence unquote, and that if he did the people involved would attempt to recommend suspended sentence.
      “Q: Okay referring sir to that portion of this exhibit which is the—which is an interview form dated September 17, 1974 on the reverse side, there is the following language written in. Try to extort $5,000 from a guy, told him someone was going to kill him, if paid $25,000 would prevent it, try to scare a person because he had fired a few of my friends. Is that the incident for which Mr. Ashcroft was placed on the period of Accelerated Rehabilitation originally?
      “A: I would believe so. That would be—a probation officer must have asked the individual, why are you here? What did you do and what was the response.
      “Q: All right.
      “Mr. Williams: I have nothing further of this witness, your honor. Cross examination by Mr. Schuman
      “Q: Mr. Fennessy can you show me where on Exhibit 22 there is a reference to a possibility that Mr. Ashcroft might get a suspended sentence?
      “A: Was in the field notes made by the probation officer, dated December 9th, 1975, indicate probation officer had telephone conversation with Connecticut State Police Detective Spencer and discussed a bench warrant for Mr. Ashcroft charging burglary 3rd, larceny first and extradite, and that the Detective Spencer and Bill Doyle have talked to the probationer and if he will testify against quote, fence, unquote voluntarily, they may recommend a suspended sentence.
      “Q: Okay now Mr. Fennessy did you attend the trial in this case?
      “A: No.
      “Q: So you don't know whether or not Mr. Orsini’s attorney asked Mr. Ashcroft about promises of leniency or about offers of suspended sentence?
      “A: No.
      “Q: Okay.
      “Mr. Schuman: Nothing further, your Honor.
      “Mr. Williams: I have nothing further.
      “The Court: Thank you, sir.
      “Mr. Williams: We rest, your Honor.”


text:
    The Common Condominium Associations, Inc., et al. v. The Common Associates et al.
    (2625)
    Borden, Spallone and Daly, Js.
    Argued June 12
    decision released September 17, 1985

      Sperry A. DeCew, for the appellant (Louis D. Vaccaro).

      James R. Fogarty, with whom, on the brief, was Andrew P. Nemiroff, for the appellees (named defendant et al.).

      Robert F. Moriarty, for the appellees (defendant SMS Architects et al.).

      Louis D. Blumenfeld, with whom was Karen J. Casey, for the appellees (defendant Sanford O. Hess et al.).
   Borden, J.

This is an action brought in thirteen counts by several condominium unit owners against the sponsors and declarants of the condominium complex, for damages flowing from faulty construction. Louis D. Vaccaro, who is not one of the original plaintiffs, sought to intervene as a plaintiff. The trial court denied his motion to intervene, from which judgment he appeals.

The dispositive issue in this appeal is whether the denial of Vaccaro’s motion to intervene is an appealable final judgment. We hold that, because Vaccaro sought permissive intervention and does not make a colorable claim to intervention as a matter of right, the denial of his motion was not an appealable final judgment, and that, therefore, his appeal must be dismissed.

The plaintiffs sued, seeking not only individual relief but class certification. After the denial of successive motions by the plaintiffs for class certification, Vaccaro sought to intervene, representing in his motion that he is the former owner of two condominium units and the current owner of one, “which ownerships resulted in damage to him.” His proposed complaint in thirteen counts, attached to his motion to intervene, is essentially identical to the plaintiffs’ complaint already filed. After he filed this appeal, the defendants moved to dismiss the appeal on the ground of lack of a final judgment. We denied the motion. At oral argument, the defendants renewed the claim, which we now find persuasive.

The issue of whether the denial of a motion to intervene is a final appealable judgment first surfaced in our body of final judgment jurisprudence in Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977). Although dismissing the appeal on the unrelated ground of mootness, the court suggested in a footnote that appealability of a trial court’s action on a motion to intervene depended on “whether a person had an absolute right to intervene or whether intervention was a matter within the trial court’s discretion.” Id., 575 n.3.

Then, in Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980), the court, in ruling on an appeal from the denial of a motion to intervene in the trial court, stated: “Because the [appellant] at the very least had a colorable claim to intervention as a matter of right, the denial of its motion to intervene was appealable. See Jones v. Ricker, 172 Conn. 572, 575n, 375 A.2d 1034 (1977).”

Finally, in Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1982), the court was confronted with appeals by three municipalities from the trial court’s denial of their motions to intervene in the second phase of the public school funding litigation. The court took the occasion to delineate the boundaries between intervention of right and permissive intervention, pursuant to Practice Book §§99 and 100. An applicant has a right to intervene when his “interest is of such a direct and immediate character that the applicant' “will either gain or lose by the direct legal operation and effect of the judgment.” ’ ” Horton v. Meskill, supra, 195. Permissive intervention, which is entrusted to the trial court’s discretion, depends on a balancing of factors, and the court’s determination will only be disturbed for an abuse of discretion. Id., 197. In Horton v. Meskill, the court did not address the issue of appealability. It decided that the appellants did not have a right to intervene, and that the trial court did not err in denying permissive intervention. Nonetheless, because the court reached the merits of the intervention claim on appeal, the decision must fairly be read consistently with Ricard v. Stanadyne, Inc., supra, as a sub silentio determination that the appellants had raised a colorable claim to intervention as a matter of right. Horton v. Meskill, supra, 191-96.

We read this trilogy of precedents as standing for the proposition that an unsuccessful applicant for intervention in the trial court does not have a final judgment from which to appeal unless he can make a colorable claim to intervention as a matter of right. If he does make such a colorable claim, on appeal the court has jurisdiction to adjudicate both his claim to intervention as a matter of right and to permissive intervention. This reading is consistent with the by now classic definition of the appealability of an otherwise interlocutory order: “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The second prong of this test, which is the only one arguably implicated by a ruling on a motion to intervene; see State v. Parker, 194 Conn. 650, 653-55, 485 A.2d 139 (1984); has been further refined: “The [party] must show that [the court’s] decision threatens to abrogate a right that he or she then holds.” (Emphasis in original.) State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984). “The right itself must exist independently of the order from which the appeal is taken.” (Footnote omitted.) Id., 92-93; see also In re Juvenile Appeal (85-AB), 195 Conn. 303, 307-308, 488 A.2d 778 (1985).

Only if a person has a colorable claim to intervention as a matter of right can it be said that the denial of his right to intervene is final for purposes of appeal. In that case, his right to intervene must be able to be vindicated by an interlocutory appeal; otherwise, by definition the rights he holds with respect to the other litigants will be either sustained or lost by direct legal operation of the judgment in the case in which he seeks to intervene. Horton v. Meskill, supra, 195. If his claim to intervention rests on permissive grounds, however, further proceedings can affect his rights with respect to the other litigants in the case; he can, if his motion to intervene is denied, still vindicate those rights by bringing his own independent action.

In this case, Vaccaro makes no colorable claim to intervention as a matter of right. Indeed, he concedes as much in his brief. He states that “in the case before this court, the moving intervenor has distinct rights which will not be reached if intervention is denied,” and “the interests of the moving intervenor closely tract [sic] the considerations outlined in Horton v. Meskill, supra, at 197.” The reference to Horton v. Meskill, supra, is to the section of the opinion headed “PERMISSIVE INTERVENTION.” We discern no basis, either in his motion to intervene in the trial court or in the record before this court, for a colorable claim to intervention as a matter of right. We therefore have no jurisdiction to adjudicate Vaccaro’s claim for permissive intervention, and conclude that his appeal is not properly before us.

The appeal is dismissed.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).


author: D. Dorsey, J.

text:
    Anna Rodziewicz v. Harold R. Giguere
    (3144)
    Hull, Daly and D. Dorsey, Js.
    Argued June 17
    decision released September 17, 1985

      John A. Barbieri, for the appellant (defendant).

      Andre M. Koeay, with whom, on the brief, was John ZisJc, for the appellee (plaintiff).
   D. Dorsey, J.

The plaintiff instituted this action seeking the return of money paid for the purchase of stock in a corporation. The trial court rendered judgment awarding the plaintiff damages plus costs. The defendant appealed, claiming the trial court erred in finding (1) that there was a failure of consideration with reference to the agreement between the parties, (2) that the agreement between the parties obligated the defendant to form the corporation prior to obligating the plaintiff to tender the balance of the purchase price, (3) that the corporation was never formed, (4) that the defendant, despite his promise to do so, was unwilling or unable to transfer one third of the stock of the proposed corporation within sixty days of December 30, 1976.

The pleadings indicate that the defendant admitted that he and the plaintiff had agreed, in writing, that the plaintiff would purchase from him an interest in the defendant’s corporation, Industrial Blower Works, for a total price of $15,000 and that the plaintiff had paid to the defendant the sum of $2000 as a down payment. The defendant also admitted that he did not deliver any stock to the plaintiff although she requested him to do so and that he never returned the plaintiff’s deposit to her.

The defendant contended, in his second special defense, that the action was barred by the statute of limitations. General Statutes § 52-576. The thrust of the defendant’s first special defense was that since the plaintiff had not paid the balance of $13,000 within sixty days of December 30,1976, she was not entitled to the stock or to a refund.

The court found that the defendant accepted $2000 from the plaintiff toward the purchase of one third of the stock in a corporation to be formed by the defendant. The name of the corporation to be formed would be Northern Industrial Blower Works. Under the terms of the agreement, the plaintiff was to pay an additional $13,000 within sixty days of the date of December 30, 1976, and the defendant was to transfer to the plaintiff stock representing a one third interest in said corporation. The court found that the defendant did not form the corporation and did not transfer any stock to the plaintiff. The court further found that the plaintiff made a demand for the $2000 but that the defendant refused to return said sum to the plaintiff. The court found that the contract was entered into on December 30, 1976, with performance on the agreement to be accomplished within sixty days. Since the action was commenced on February 3, 1983, it was commenced within the time limit set forth in General Statutes § 52-576.

Upon this state of facts found, the court concluded that the defendant’s consideration for the plaintiff’s promise to pay an additional $13,000 was a promise to furnish stock to the plaintiff within sixty days of December 30,1976. The defendant abandoned the idea of forming this corporation and therefore the plaintiff was entitled to the return of her money. Where the enterprise has been wholly abandoned, a refusal or failure to issue the stock subscribed for or inability to issue it will constitute a failure of consideration. Cramer v. Burnham, 107 Conn. 216, 222-23, 140 A. 477 (1928).

All of the defendant’s claims of error attack the trial court’s findings of fact. Questions of fact are to be determined solely by the trial court. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Fukelman v. Middletown, 4 Conn. App. 30, 31, 492 A.2d 214 (1985); Connecticut National Bank v. Nagy, 2 Conn. App. 448, 449, 479 A.2d 1224 (1984). The weight given the evidence and the credibility of the witnesses are likewise within the province of that court. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). “This court will not reverse the decision of the trial court unless it is found to be ‘clearly erroneous in light of the evidence and the pleadings in the record as a whole.’ Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D.” Contoura Business Products, Inc. v. TLD, Inc., 1 Conn. App. 690, 692, 474 A.2d 1265 (1984), quoting Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984).

“A contract is to be construed according to what may be assumed to have been the understanding and intention of the parties.” Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 406-407, 365 A.2d 1086 (1976). “The interpretation of . . . contracts, is principally a question of the intention of the contracting parties, a question of fact to be determined by the trier of facts.” Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, 183 Conn. 348, 351, 439 A.2d 362 (1981).

“A review of the memorandum of decision and the record indicates that the court’s conclusions are legally and logically correct and are supported by the facts set out in the memorandum of decision. The facts set out in the memorandum are supported by the evidence, and upon the whole record those facts are not clearly erroneous.” Fukelman v. Middletown, supra.

There is no error.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    Herbert G. Burkert et al. v. Petrol Plus of Naugatuck, Inc., et al.
    (2987)
    Borden, Spallone and Daly, Js.
    Argued May 7
    decision released September 17, 1985

      Robert B. Yules, for the appellant (named defendant).

      John M. Gesmonde, for the appellees (plaintiffs).
   Spallone, J.

This is an appeal by the defendant, Petrol Plus of Naugatuck, Inc., from an order granting the plaintiffs a prejudgment remedy in an amount which included past and future damages.

The plaintiffs, all of whom are engaged in the business of servicing, maintaining and repairing automobile transmissions, brought this action against the defendant Petrol Plus of Naugatuck, Inc., which supplied them with defective automatic transmission fluid, and the defendant Atlantic Coast Oil Company, which supplied the product to Petrol Plus of Naugatuck, Inc. The plaintiffs purchased approximately 2200 gallons of the fluid and used it in approximately 1076 vehicles before being informed by the defendant that it was defective. The plaintiffs seek damages in this action for losses sustained in the repair or replacement of automatic transmissions or parts thereof; for loss of goodwill; and for fraud. Subsequent to the commencement of the action, the plaintiffs applied for a prejudgment remedy in the amount of $350,000.

At the prejudgment remedy hearing, the plaintiffs presented evidence that they had repaired 546 of the 1076 vehicles in which the transmission fluid had been used. They also presented evidence of the projected cost of repairing the outstanding vehicles. The court found that the total cost of the repairs which had already been made amounted to $115,777. The court also found that the plaintiffs had established approximately $118,000 in possible future expenses. It stated that “fifty percent of that one hundred and eighteen thousand dollars should be added to the sum that has actually been expended, which would make the total sum one hundred and seventy-five thousand dollars.” The court granted a prejudgment remedy in favor of the plaintiffs in the amount of $175,000.

In appealing from that order, the defendant argues that the trial court erred (1) in relying upon a defective affidavit; (2) in admitting into evidence copies of business records which were not made within a reasonable time of the transactions which they purported to represent; (3) in considering future damages when setting the amount of the prejudgment remedy; and (4) in granting the prejudgment remedy in the absence of any evidence of the plaintiffs’ actual damages.

Our examination of the record shows that the first issue which the defendant has raised, whether the court erred in accepting an allegedly defective affidavit, was not raised prior to this appeal. As an appellate court, we are not bound to consider claims of law not raised at trial, and no exceptional circumstances exist in this case which would now justify our consideration of this claim. Practice Book §§ 285A and 3063; Sands v. Sands, 188 Conn. 98, 106-107, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983); Northeast Electrical Contractors v. Udolf, 1 Conn. App. 169,171, 469 A.2d 419 (1984). This claim, moreover, was not included in the defendant’s preliminary statement of issues and, for that reason as well, will not be considered. Practice Book § 3063; Verrastro v. Sivertsen, 188 Conn. 213, 218, 438 A.2d 1344 (1982).

The second claim of error which the defendant has raised is that the trial court erred in admitting into evidence alleged business records of the plaintiff, Trans-Co. of CT., Inc., doing business as Aamco Transmissions, when those records were neither originals nor made within a reasonable time of the transactions which they purported to represent. The defendant argues, first, that the service order forms were prepared in anticipation of litigation and not in the regular course of business, and second, that the copies were not made at the time of the transaction or within a reasonable time thereafter.

Reproductions of original documents are admissible under the business records exception to the hearsay rule if the conditions set forth in General Statutes § 52-180 (a) are satisfied. The trial court may determine, within the exercise of its discretion, whether those criteria have been met. Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 457-58, 472 A.2d 1290 (1984). In making this determination, the statute should be liberally interpreted. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388, 461 A.2d 422 (1983); Shuchman v. State Employees Retirement Commission, supra.

The evidence which the defendant claims was erroneously admitted consisted of photocopies of service orders showing what repairs had been done to particular vehicles. Alan C. Bardwell, the owner and operator of Trans-Co. of CT., Inc., testified that his manager would fill out the service orders at the end of each day or at the end of two or three days. Depending on the manager’s workload, the orders might be filled out up to a week and a half after the vehicles were brought in. Bardwell also testified that in the months preceding the hearing, the workload at his business had been heavier than usual because of the number of vehicles brought in for repairs stemming from the defective transmission fluid. There was no testimony that the service orders were prepared, as the defendant claims, several months after the actual servicing of the vehicles nor was any evidence adduced that the documents were prepared in anticipation of litigation. Noting that the circumstances of the making of such records may be shown to affect their weight, but not their admissibility; General Statutes § 52-180 (b); we conclude that the trial court did not err in allowing the introduction of the records.

The third and fourth issues raised by the defendant challenge, more broadly, the basis on which the trial court granted the plaintiffs’ prejudgment remedy. In its third claim of error, the defendant argues that the trial court’s inclusion of future damages in the determination of the amount of the attachment was based upon conjecture and speculation. Its fourth issue is that the plaintiffs presented no evidence as to their actual damages.

We find no error as to either claim. The trial court’s role in acting upon a prejudgment remedy motion does not require “an authoritative determination of the merits of [the parties’] arguments and . . . evidence . . . .” Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984). The court need do no more than determine that there is probable cause to sustain the validity of the plaintiffs’ claim. General Statutes § 52-278 (a); Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984); L. Suzio Concrete Co. v. Salafia, 3 Conn. App. 404, 406-407, 488 A.2d 1280 (1985). This court’s role in reviewing a trial court’s action upon such a motion is even further circumscribed. We can merely determine whether the trial court’s decision was reasonable, and we will not upset that decision in the absence of clear error. Three S. Development Co. v. Santore, supra; Babiarz v. Hartford Special, Inc., supra, 393-94.

In an application for a prejudgment remedy, “damages need not be established with precision but only on the basis of evidence yielding a fair and reasonable estimate. Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984).” Babiarz v. Hartford Special, Inc., supra, 398. Facts must be presented which are “sufficient to enable the court to determine the probable amount of the damages involved. 7 C. J.S., Attachment, § 125 (b) (2). As a matter of general experience, a determination of a claim’s probable validity normally will entail at least some consideration of the amount of damages which may be found upon a full trial.” Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 585, 376 A.2d 60 (1977).

In this case, there was testimony that 1076 cars had been serviced with the defective transmission fluid. There was also testimony that between the date the plaintiffs sent out recall notices to the owners of those cars and the date of the prejudgment remedy hearing, 546 cars had been repaired because of problems caused by the defective fluid. There was also testimony as to the average cost of repairing each car. In arriving at its estimate of probable damages, the trial court included in its figure an amount equal to one half of the projected cost of repairing all of the outstanding vehicles. Since more than half of all of the vehicles serviced with the defective transmission fluid had been brought in for repairs by the date of the hearing, we do not view as unwarranted the trial court’s estimate that half of the remaining vehicles were likely to be repaired by the date of trial. We cannot conclude that the trial court’s estimate of damages of $175,000 was clear error. See McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 39, 440 A.2d 801 (1981).

There is no error.

In this opinion the other judges concurred.

       For purposes of this opinion, Petrol Plus of Naugatuck, Inc., will be referred to as the defendant.

       By letter dated October 5, 1983, the defendant notified the plaintiffs that the transmission fluid did not meet product specifications and that the plaintiff should “take immediate and appropriate action with respect to [his] customers so that no avoidable damage is caused by [the] use of this automatic transmission fluid.”

       We note that both parties, in their briefs, point out that subsequent to the prejudgment hearing, the defendant substituted a bond in lieu of the attachment. The record, however, is devoid of any reference to such bond, so we need not consider the ramifications of this action at this time. We do not resort to matters extraneous to the record. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984).