author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. HECTOR SILVA
    (13935)
    Schaller, Spear and Daly, Js.
    Argued September 18
    officially released November 5, 1996

      Susan F. Filan, for the appellant (defendant).

      Lisa Herskowilz, deputy assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), attempted assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48 (a). He claims that the trial court improperly (1) instructed the jury on self-defense, (2) denied him his statutory right to a speedy trial, and (3) denied him his federal and state constitutional rights to a speedy trial. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. The defendant resided with his family in a fourth floor apartment at 9-11 Wyllys Street, a multiunit apartment building in Hartford. On January 30, 1993, at approximately 11 p.m., Javier Ortiz and Christopher May entered 9-11 Wyllys Street, unarmed, intending to discuss a previous altercation between the defendant and Gene Hilton, a gang member. The previous altercation did not cause the defendant to fear for his life or the lives of his family members. The defendant, while standing on the second floor landing, opened fire as Ortiz and May entered the building. A bullet entered Ortiz’ back and fatally wounded him. After the shooting, the defendant handed the gun to someone in the hallway, returned to his apartment, changed his clothing, and watched television with Johnny LeBrun and Felix Rodriguez. The police arrested the defendant that evening and never recovered the gun.

At trial, it was not disputed that the defendant shot Ortiz. The defendant claimed self-defense and testified as follows. Gang members had been selling drugs in his apartment building, and he had been directed by the landlord to eject them from the building. Approximately one month prior to the shooting, gang members had pistol-whipped him in his apartment in the presence of his wife and children. Earlier on the evening of the shooting, he had argued with and was assaulted by Hilton outside of his apartment building. Hilton then threatened to return with more gang members to kill the defendant’s family. The defendant ran to his apartment, warned his wife and instructed her to lock the door. He picked up a handgun and left his apartment, accompanied by Rodriguez. He saw four people in the foyer, and ten to fifteen people standing outside, carrying bottles and sticks, but did not see anyone carrying a gun. As he reached the second floor landing of his building, he heard a gunshot and then fired his own gun two or three times.

I

The defendant claims that the trial court improperly instructed the jury on self-defense. He first asserts that the trial court improperly instructed the jury that the common areas of his apartment building did not constitute his dwelling and, second, that the charge on the duty to retreat was incomplete and misleading. We disagree.

Due process requires that a defendant charged with a crime must be afforded the opportunity to establish a defense. State v. Anderson, 227 Conn. 518, 526, 631 A.2d 1149 (1993). “This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.” (Internal quotation marks omitted.) Id. “[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Panella, 43 Conn. App. 76, 79-80, 682 A.2d 532 (1996). “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Id., 80.

In his request to charge, the defendant asked the court to instruct the jury that “if you find that [the defendant] lived in 9-11 Wyllys Street the law provides that he had no duty to retreat.” The court, however, instructed the jury that the defendant’s “dwelling would be the particular apartment which he had the exclusive right to occupy, and would not include hallways, foyers and, areas of the building which were open to others—which others had a right to use, such as the front entranceway, the front foyer.” (Emphasis added.)

Section 53a-19 (b) provides that “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100 . . . .” (Emphasis added.) General Statutes § 53a-100 (a) (2) defines a dwelling as “a building which is usually occupied by a person lodging therein at night . . . .” A building is defined as a “structure ... or any building with a valid certificate of occupancy. Where a building consists of separate units, such as, but not limited to separate apartments . . . any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . .” General Statutes § 53a-100 (a) (1). The success of the defendant’s claim is dependent on whether the common areas of his apartment building are a part of his “dwelling” within the meaning of § 53a-19 (b).

The defendant asserts that the common areas of his apartment building are a part of his dwelling, and, thus, he had no duty to retreat. He has failed, however, to cite any authority in support of this proposition. Our appellate courts have not decided this issue in constra-ing the self-defense statute, but in a similar context, our Supreme Court held that where an individual does not have the exclusive right to use, control access to or exclude others from an area in an apartment building, that area is not part of his residence or abode. State v. Sealy, 208 Conn. 689, 694, 546 A.2d 271 (1988).

In Sealy, the defendant was convicted of carrying a dangerous weapon in violation of General Statutes § 53-206 (a). Sealy argued that the trial court improperly instructed the jury to find Sealy guilty “if it found the defendant ‘had the knife outside of his apartment in a common area.’ ” Id., 692. Sealy argued that he had exclusive control over the landing and stairway between the second and third floors, and, thus, that portion of the building was part of his dwelling. The court, however, disagreed and found that “although the defendant may have been the principal user of the third floor landing and stairway, other individuals, however infrequent their use, also had a right to use that area. . . . This being the case . . . the stairway and landing which led to the defendant’s apartment were not part of his residence or abode.” (Citation omitted.) Id., 694.

Although the self-defense statute was not at issue in Sealy, the court’s reasoning as to whether a common area is part of a dwelling is equally applicable to this case. In this case, the defendant’s use of deadly force occurred on the second floor landing, an area of the building over which he clearly did not have exclusive control. Accordingly, we hold that the dwelling exception to the duty to retreat rule does not encompass the common areas of the defendant’s apartment building such as stairways, hallways and foyers. Because the defendant was in a common area when he shot Ortiz, the trial court properly instructed the jury that he had a duty to retreat.

The defendant also contends that the charge given on the duty to retreat was improper. We disagree.

Section 53a-19 (b) provides that the defendant had a duty to retreat only if he could retreat “with complete safety.” (Emphasis added.) “The statute requires both that a retreat in complete safety be available and that the defendant know of it.” (Emphasis in original; internal quotation marks omitted.) State v. Jones, 39 Conn. App. 563, 570, 665 A.2d 910, cert. denied, 235 Conn. 931, 667 A.2d 800 (1995). In this case, the trial court instructed the jury that because the defendant was not in his dwelling, he had a “duty to retreat, our self-defense statute requires . . . both that a retreat in complete safety be available, and that the defendant know of it.”

The defendant first argues that any instruction on the defendant’s duty to retreat exacerbated the trial court’s improper instruction on the definition of a dwelling. This claim is without merit because the trial court’s dwelling instruction was correct. The defendant also argues that the instruction was improper because the trial court should have instructed on a claimed objective component of the duty to retreat. The defendant has not cited any authority or provided any legal analysis in support of his position. Because this claim is inadequately briefed, we decline to review it. State v. Miranda, 41 Conn. App. 333, 338, 675 A.2d 925, cert. granted on other grounds, 237 Conn. 932, 677 A.2d 1372 (1996); State v. Mozell, 37 Conn. App. 574, 579-80, 657 A.2d 686, cert. denied, 234 Conn. 910, 660 A.2d 355 (1995).

II

The defendant next claims that the trial court improperly deprived him of his statutory right to a speedy trial. We disagree.

General Statutes § 54-82m guarantees a defendant incarcerated in lieu of bond a statutory right to a speedy trial. The statute requires that the trial commence within eight months of arrest or the filing of the information, whichever occurs later. The information must be dismissed if trial is not commenced within thirty days of the filing of a speedy trial motion. Practice Book § 956C provides that certain time periods are excludable in computing the time in which the trial must commence.

The defendant was arrested on January 31,1993, and the first information was filed on February 1, 1993. A probable cause hearing was held from March 11 to March 16, 1993. The defendant filed a speedy trial motion pursuant to § 54-82m on December 20, 1993, and a hearing was conducted on January 12, 1994. At the hearing, the defendant requested the earliest possible trial date. In response, the court noted that there was excludable time computed by the clerk. The defendant did not challenge the court’s computation of excludable time or the state’s diligence in prosecuting the case against him. The court denied the defendant’s motion for a speedy trial without prejudice and continued the case for three weeks.

The defendant argues that his statutory right was violated because the delay between his arrest and the commencement of trial was attributable solely to the prosecutor’s failure to exercise diligence and the time should not have been excluded. “The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . .” (Citations omitted; internal quotation marks omitted.) State v. Green, 38 Conn. App. 868, 870-71, 663 A.2d 1085 (1995). The defendant argues that the record does not adequately support the trial court’s finding that the prosecutor acted diligently and, thus, the trial court’s finding of excludable time between July 22 and December 6, 1993, is clearly erroneous. We do not know the basis for the trial court’s computation of excludable time and the defendant did not request an articulation. “It is the sole responsibility of the appellant to provide an adequate record for review.” Keiser v. Conservation Commission, 41 Conn. App. 39, 46, 674 A.2d 439 (1996); Practice Book § 4061. Because the defendant has not provided this court with an adequate record, we are unable to review his claim.

Ill

The defendant finally claims that the trial court improperly denied his motion to dismiss for failure to grant a speedy trial and, in doing so, violated his federal and state constitutional rights to a speedy trial.

The right to a speedy trial is guaranteed by the sixth amendment to the United States constitution, applicable to the states through the fourteenth amendment, and by article first, § 8, of the Connecticut constitution. The defendant claims that his constitutional rights were violated by the unnecessary delay caused by the prosecutor’s trial schedule and lack of diligence. In order to determine whether a criminal defendant has been deprived of his constitutional right to a speedy trial, our courts balance the following factors: “[IJength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Internal quotation marks omitted.) State v. Wall, 40 Conn. App. 643, 651, 673 A.2d 530, cert. denied, 237 Conn. 924, 677 A.2d 950 (1996), quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). “ ‘None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated. State v. Nims, [180 Conn. 589, 591-92, 430 A.2d 306 (1980)].’ ” State v. Wall, supra, 651.

The first and third factors of the test set out in Barker v. Wingo, supra, 407 U.S. 530, weigh in favor of the defendant. There was a lapse of nearly fourteen months between the filing of the first information and trial. “Although [fourteen] months is not an overwhelming period of time, it is of such length that there is a necessity for inquiry into the other factors that go into the balance.” State v. Brown, 172 Conn. 531, 536, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977). In addition, the defendant clearly asserted his right to a speedy trial.

Even though two of the factors are in the defendant’s favor, the prejudice prong is “ ‘the linchpin of the speedy trial claim.’ ” State v. Morrill, 197 Conn. 507, 526, 498 A.2d 76 (1985). “ ‘[U]nlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.’ ” Id. The constitutional right to a speedy trial is designed “ ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ ” Id., 527.

The defendant claims that he was prejudiced by the anxiety that he suffered from being unable to support his family while he was incarcerated. While claims of anxiety are “unfortunately present in every case of pretrial delay, general claims of anxiety are thought insufficient to invoke what has been termed the unsatisfactorily severe remedy of dismissal.” (Internal quotation marks omitted.) Pelletier v. Warden, 32 Conn. App. 38, 52, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993). Furthermore, the defendant’s claim is weakened by his trial testimony that he had been unemployed when the shooting occurred and unable to pay his rent.

The defendant also claims that he was prejudiced by the unavailability of a state’s witness, John LeBrun, who could not be located to testify at trial. LeBrun testified at the probable cause hearing and his testimony was read into the record, absent objection by the defendant. The defendant claims he was prejudiced because he was unable to cross-examine LeBrun in front of the jury. At the probable cause hearing, however, the defendant’s attorney had the opportunity to, and did in fact, cross-examine LeBrun and was able to elicit testimony favorable to his claim of self-defense. The defendant has not demonstrated how LeBrun’s presence at trial would have affected the outcome of his trial. Furthermore, the defendant has failed to establish a nexus between LeBrun’s unavailability at the time of trial and the delay.

After balancing these factors, we conclude that the defendant was not deprived of his constitutional right to a speedy trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was tried with codefendant Rodriguez. Rodriguez has filed a separate appeal.

       The trial court instructed the jury: “This, then, brings us to self-defense, or the defense referred to in the law as justification. The defendants . . . have raised self-defense as a justification for the use of force on January 30, 1993, at the Wyllys Street apartment building. That is, defense of themselves and others—family. The defense of self-defense is established in our law, or I should perhaps say, the defense of justification that is, self-defense, is established in our law by General Statutes § 53a-19, entitled 'Use of Physical Force in Defense of Person.’ It reads, in pertinent part, as follows: ‘A person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force. And he may use such degree of force which he reasonably believes to be necessary for such purpose, except that deadly physical force may not be used unless the actor reasonably believes that such other person is one, using or about to use deadly physical force, or two, inflicting or about to inflict great bodily harm. ... A person is not justified in using deadly physical force upon another person if he knows he can avoid the necessity of using such force with complete safety

        by retreating, except that the, actor shall not be required to retreat if he is in his dwelling. ’
      “ ‘Dwelling’ is defined in the statute as meaning a building which is usually occupied by a person, lodging therein at night, whether or not the person is actually present. ‘Building,’ however, is defined as having its ordinary meaning, but where a building consists of separate units, such as separate apartments, each such unit is a separate building. So that with respect to [the defendant], his dwelling would be the particular apartment which he had the exclusive right to occupy, and would not include hallways, foyers and areas of the building which were open to others—which others had a right to use, such as the front entranceway, the front foyer.” (Emphasis added.)

       General Statutes § 53-206 (a) does not expressly provide an exception for carrying a dangerous weapon in one’s home. Our Supreme Court has noted, however, that “[i]mplicit in this provision is an exception for carrying a weapon in an individual’s residence or abode . . . State v. Sealy, supra, 208 Conn. 693.

       The defendant’s briefing of this issue consists of two sentences: “The law on duty to retreat is based upon a subjective-objective analysis. The jury must decide whether [the defendant] believed he could retreat with complete safety and whether his belief was reasonable.”

       Pradice Book § 956C provides that the following periods, inter alia, are excludable: “(a) ... (4) the time between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion . . . .
      “(b) Any period of delay resulting from the absence or unavailability of the defendant, counsel for the defendant, or any essential witness ....
      “(g) The period of delay resulting from a continuance granted by the judicial authority at the personal request, of the defendant.
      “(h) The period of delay resulting from a continuance granted by the judicial authority at the request of the prosecuting attorney, if:
      “(1) the continuance is granted because of the unavailability of evidence material to the state’s case, when the prosecuting authority has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date . . . .”

       The court stated: “We don’t articulate on the record what’s excludable and what’s not, and so there’s no real record of it. But the clerk’s computations indicate that there are 207 days excludable, which would make [the defendant] eligible around mid-April of 1994.”

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, 1he accused shall have a right ... in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. . . .”

       As to the second factor, the defendant again asserts that the delay was unnecessary and attributable solely to the prosecutor’s lack of diligence. As previously stated, the record is not adequate to review the reasons for the delay. We will focus, therefore, only on factors one, three and four.

       At the probable cause hearing, LeBrun testified that Hilton had threatened the defendant’s family, that gang members were outside of 9-11 Wyllys Street, and that at least one person in the foyer was armed.


source: Caselaw Access Project

license: Public Domain

text:
    BOARD OF EDUCATION OF THE CITY OF HARTFORD v. LOCAL 566, COUNCIL 4, AFSCME
    (15154)
    Foti, Spear and Hennessy, Js.

      Argued September 19
    officially released November 5, 1996

      Ann F. Bird, assistant corporation counsel, with whom, on the brief, was Pedro Segarra, former corporation counsel, for the appellant (plaintiff).

      Jason W. Cohen, with whom was J. William Gagne, Jr., for the appellee (defendant).
   SPEAR, J.

The plaintiff appeals from the judgment of the trial court confirming an arbitration award that ordered the plaintiff to reinstate an employee (grievant) whom the plaintiff had demoted from his position as a warehouse supervisor because of the grievant’s federal conviction for embezzling union funds. The plaintiff claims that the award should be vacated because (1) the arbitrators’ preclusion of evidence of the grievant’s conviction was based on an interpretation of the parties’ collective bargaining agreement that was so irrational that it constituted misconduct, and (2) the award violates public policy because it requires the plaintiff to reinstate a person who has been convicted of fraud to a position in which he would have custody and control of property purchased with public funds. We agree that the award violates public policy and, accordingly, reverse the judgment.

The relevant facts are as follows. The plaintiff employed the grievant as a warehouse supervisor and, during his time of employment, the grievant also served as secretary-treasurer of the defendant union. While serving as secretary-treasurer, he received a number of blank checks that were erroneously printed with only one signature line. Union rules require the signatures of two union officers on all checks. The grievant secretly retained the checks, despite instructions from the union president to return them. From July 30, 1985, through April 30, 1988, the grievant wrongfully obtained union funds in the amount of $23,852 by drawing and negotiating 108 checks, each payable either to himself or to cash. He concealed the thefts by making false entries in the books and ledgers of the union.

The grievant was arrested and, after a guilty plea, convicted of fraud in the federal District Court for the District of Connecticut on July 23, 1990. Because of the conviction, the plaintiff demoted the grievant from warehouse supervisor to maintenance and custodial helper on September 24,1990. On October 11, 1990, the grievant filed a grievance, claiming that there was no just cause for the demotion. The defendant and the plaintiff ultimately proceeded to arbitration before the state board of mediation and arbitration (board) on March 25, 1994.

During the arbitration proceedings, the plaintiff sought to introduce evidence of the grievant’s fraud conviction, but the board refused to allow the evidence on the basis on its interpretation of article XII, § 12.1 (B) of the collective bargaining agreement. That section provides that “[r]ecords of disciplinary action shall be removed from the employee’s file after two (2) years.” The board found that there was no just cause for the demotion and ordered the plaintiff to reinstate the griev-ant to the position of warehouse supervisor and to reimburse him for all lost wages and benefits.

The plaintiff and the defendant filed respective applications to vacate and to confirm the award. The trial court granted the defendant’s application to confirm the award and denied the plaintiffs application to vacate. This appeal followed.

I

The plaintiff first asserts that the board’s exclusion of the grievanf s conviction record was so egregiously improper that it was tantamount to rewriting the subject clause. It contends that the interpretation constitutes misconduct because it violates the arbitrators’ obligation to base the award on the parties’ contract. In making this claim, the plaintiff acknowledges the general principle that “when arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope. ... If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. . . . Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission.” (Internal quotation marks omitted.) Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989).

There is no question that the award conforms to the submission. The plaintiff claims, however, that this case falls under an exception to the general rale that arbitration awards are not reviewable for errors of law. “Judicial approval of arbitration decisions that so egregiously depart from established law that they border on the irrational would undermine society’s confidence in the legitimacy of the arbitration process. . . . Furthermore, although the discretion conferred on the arbitrator by the contracting parties is exceedingly broad, modem contract principles of good faith and fair dealing recognize that even contractual discretion must be exercised for purposes reasonably within the contemplation of the contracting parties.” Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 305, 680 A.2d 1284 (1996), citing Garrity v. McCaskey, 223 Conn. 1, 10-11, 612 A.2d 742 (1992). “[II]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. . . .” (Citations omitted; internal quotation marks omitted.) Board of Education v. AFSCME, 195 Conn. 266, 273, 487 A.2d 553 (1985); Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963).

The plaintiff makes a very persuasive argument that the board’s ruling on the proffered evidence was erroneous. Even if the ruling was improper, we are not persuaded that it resulted in an award that falls completely outside the scope of the agreement and the contemplation of the parties.

The board’s interpretation of the subject clause, although severely strained, has some basis in the language of the contract. The board could have concluded that the judgment of conviction was a “record” of a form of “discipline” and that such record was in the grievant’s file. Because the 1990 record was offered in a 1994 hearing, the board could have further concluded that the words “removed from the employee’s file after two (2) years” precluded using any such record against an employee if the record was more than two years old. Although the board’s interpretation comes close to the flash point at which legal error becomes so egregious as to depart from the essence of the parties’ contract, we are satisfied that that point was not reached in this case. We conclude that this ground of vacatur was properly rejected by the trial court.

II

The plaintiff also claims that enforcement of the award would violate public policy by requiring the plaintiff to reinstate the grievant to a job with responsibility for publicly owned property even though he has been convicted of abusing a position of trust by fraudulently diverting union funds to his own use. We agree.

“It is a well accepted proposition that the courts favor arbitration. ... An award, however, can be vacated where its enforcement would violate some explicit public policy that is well defined and dominant, and is . . . ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. ... A vacatur on public policy grounds is premised on the notion that the parties cannot expect an award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” (Citations omitted; internal quotation marks omitted.) South Windsor v. South Windsor Police Union, 41 Conn. App. 649, 654, 677 A.2d 464 (1996), citing Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 340, 555 A.2d 406 (1989).

Our criminal statutes evidence a clear public policy against the theft and fraud engaged in by the grievant. In State v. Council 4, AFSCME, 27 Conn. App. 635, 641, 608 A.2d 718 (1992), where the state fired an employee who stole state funds while on the job, we stated that “[t]his state’s compelling public policy of not tolerating the knowing misappropriation of state funds by state officials or employees cannot be disputed. General Statutes § 53a-119 (6), which explicitly proscribes such conduct, represents an unequivocal legislative articulation of this policy. The public policy of discouraging fraud generally is firmly rooted in our common law as well. . . .” (Citations omitted.) Id. In that case, we affirmed the trial court’s vacatur of the arbitration award that ordered the reinstatement of the employee. Id. In Schmidt v. Yardney Electric Corp., 4 Conn. App. 69, 74, 492 A.2d 512 (1985), where we considered a discharged employee’s claim that he was fired in retaliation for disclosing a fraudulent insurance claim made by his employer, we noted that “[t]he important public policy we identify is the one against fraud . . . .’’(Citation omitted.)

In the case before us, the defendant asserts that “[a] general public policy against theft or fraud, without more” is not sufficient to warrant a vacatur under the narrow public policy exception. The defendant relies principally on United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 544 A.2d 186 (1988); and Stamford v. Stamford Police Assn., 14 Conn. App. 257, 540 A.2d 400 (1988). Those cases are distinguishable from the case before us.

In United Paperworkers International Union v. Misco, Inc., supra, 484 U.S. 44-45, the United States Supreme Court ruled that the trial court had engaged in improper fact finding by concluding that the grievant had violated his employer’s rule against possessing or using controlled substances on the employer’s property, even though the arbitrator had found that no violation had been proven. There was, therefore, no factual basis to support the trial court’s conclusion that reinstatement would violate what the court declared was the public policy against a person’s operating hazardous machinery while under the influence of drugs. The United Paperworkers International Union court further noted that the announced public policy, while “firmly rooted in common sense,” did not stem from a review and analysis of existing laws and legal precedents and was, for that reason, improper. Id., 44. The United States Supreme Court reversed the Court of Appeals, which had affirmed the trial court’s vacatur of the award. Id., 45. In contrast, our conclusion is based on an admission of fraud and theft and a review of our laws and precedents.

In New Haven v. AFSCME, Council 15, Local 530, supra, 208 Conn. 413, a police officer’s criminal conviction was reversed on appeal. An arbitration award ordered the city to pay the officer lost wages and benefits for the period between his discharge and his reinstatement after the reversal. Our Supreme Court held that the award did not violate public policy because the city had chosen to rely on the conviction as a basis for discharging the officer rather than conducting its own hearings. Id., 419. The city was not being forced to rehire an officer convicted of a crime, as there was no longer a conviction, nor did the city find any improper conduct. Id. This is completely unlike the present case, where the conviction on which the plaintiff based the demotion of the grievant has not been reversed.

We held in Stamford v. Stamford Police Assn., supra, 14 Conn. App. 260, that an arbitration award that enforced a collective bargaining provision that provided unlimited sick leave for police officers did not violate the public policy requiring the city to protect the public through its police department. Although the provision prohibited the city from terminating and replacing a disabled police officer who was on sick leave status, the city’s concern did “not rise to the level of a violation of public policy”; id., 260; because it did not undermine or affect the city’s responsibility for protecting the public. Under the circumstances of the case before us, rewarding a convicted felon with reinstatement would undermine the clear public policy against fraud and theft.

The defendant also asserts that vacatur is inappropriate under the circumstances here because, unlike the grievant in State v. Council 4, AFSCME, supra, 27 Conn. App. 635, the grievant in this case did not steal from his employer. In addition, the defendant asserts that the plaintiff had no specific regulation governing criminal activity by employees that was not related to their employment. We find no merit in these contentions.

In determining whether reinstatement of the grievant to a position where he would have custody and control of public property clearly violates public policy, we see no reason to differentiate between one who steals from his employer and one who steals from some other person or entity. The evidence shows that the warehouse supervisor is referred to as a “storekeeper” and that over $500,000 in merchandise is received in the warehouse each fiscal year. Reinstatement would literally mean putting an admitted thief in charge of the store. Our strong and clearly stated public policy against fraud does not countenance such a result.

The judgment is reversed and the case is remanded with direction to render judgment vacating the arbitration award.

In this opinion the other judges concurred.

       The defendant was convicted of a violation of 18 U.S.C. § 1344. That section provides: “Whoever knowingly executes, or attempts to execute, a scheme or artifice—
      “(1) to defraud a financial institution; or
      “(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;
      shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”

       The plaintiff asserts that the plain language of the clause requires the removal of records created by the plaintiff of disciplinary action taken by the plaintiff so as to preclude the use of such records in future disciplinary proceedings, performance evaluation and the like. The parties never intended the clause to include records made by some other entity, not under the control of the plaintiff, reflecting action taken by that other entity. Furthermore, the record at issue here was created before the plaintiff disciplined the grievant. Further, the parties could not have intended that the plaintiff was responsible for ensuring a hearing before the board within two years of disciplining an employee at the risk of not being able to establish the very conduct that precipitated the grievance process.

       It is not clear whether the board based its ruling on the time span between the crime and the demotion or the time span between the conviction and the hearing at which the record was proffered. Each period of time exceeds two years.

       General Statutes § 53a-119 provides in pertinent part: “Larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:
      “(1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody. . . .”
      General Statutes § 53a-122 provides in pertinent part: “Larceny in the first degree: Class B felony, (a.) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property . . . exceeds ten thousand dollars . . .

       The defendant argues that Schmidt v. Yardney Electric Corp., supra, 4 Conn. App. 69, is inapposite because it does not involve arbitration. The defendant cites no authority for the proposition that public policy, as established in legal precedents, cannot be applied to this case unless that precedent addressed an arbitration award. We discern no rational reason to so limit legal precedents as a source of public policy.


author: PER CURIAM.

text:
    ROBERT E. KANE v. ELIZABETH G. KANE
    (14994)
    Dupont, C. J., and Foti and Spear, Js.
    Submitted on briefs September 30
    officially released November 5, 1996

      Gary Cohen and M. Katherine Webster-O’Keefe filed a brief for the appellant (defendant).

      John P. Febboriello filed a brief for the appellee (plaintiff).
   PER CURIAM.

The defendant appeals from the judgment of the trial court in this dissolution action. She claims that the trial court improperly (1) denied her motion for mistrial which was based on an alleged ex parte conversation between the plaintiff and the trial judge, (2) failed to have another judge decide the motion for mistrial and (3) made statements that created a reasonable question of the trial court’s impartiality. She also claims that the court abused its discretion in applying the statutory criteria of General Statutes § 46b-82 to the facts of this case. Because we conclude that the motion for mistrial should have been granted, we do not reach the remaining issues.

The following facts are relevant to this appeal. The action was tried to the court on May 31, June 1 and June 5,1995. The trial was held in the judge’s chambers because of a shortage of courtrooms. When the plaintiff returned to the judge’s chambers after a lunch break on June 1, 1995, neither the defendant nor her counsel was present. The judge was sitting at his desk, and the plaintiff was in his seat near the counsel table. A conversation ensued between the plaintiff and the judge. The paralegal for the defendant’s counsel returned to the room during the conversation and heard the plaintiff ask the judge how his stepson, “Reese,” was doing. The judge responded to that inquiry, and comments were then exchanged regarding a Mitsubishi automobile and a particular business condominium that the plaintiff suggested would be “a steal” for the judge’s stepson. As others reentered the room to resume the trial, comments were also exchanged between the judge and the plaintiff regarding a certain golfing event.

Counsel for the defendant learned of the conversation that day or the next and filed a motion for mistrial on Friday, June 9, 1995, at which time the trial court had not yet rendered its decision in the dissolution action. The same trial judge heard the motion for mistrial on June 13, 1995. At that hearing, the defendant did not claim that any actual impropriety had occurred, but, rather, she claimed that there was the appearance of impropriety. Conflicting testimony was given as to whether the door to the judge’s chambers was open during the conversation, whether the court reporter was present and how long the conversation lasted. The plaintiff testified that the same Mitsubishi automobile and condominium mentioned in the conversation were subjects of testimony at trial in the dissolution action before the court. At the conclusion of the hearing, the trial court denied the motion for mistrial.

On appeal, the plaintiff argues that no impropriety occurred because the conversation in question occurred in the presence of others. He argues that there was no appearance of impropriety because no reasonable person could have questioned the judge’s impartiality under the circumstances. Further, the plaintiff, citing Timm v. Timm, 195 Conn. 202, 487 A.2d 191 (1985), and Cahn v. Cahn, 26 Conn. App. 720, 603 A.2d 759 (1992), aff'd, 225 Conn. 666, 626 A.2d 296 (1993), claims that the appeal should be denied because the defendant’s motion was not timely filed.

Before we reach the issue of whether the motion for mistrial should have been granted, we must first determine whether it was timely. Generally, a party may not “anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” (Internal quotation marks omitted.) Kraltenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967).

In both Timm v. Timm, supra, 195 Conn. 202, and Cahn v. Cahn, supra, 26 Conn. App. 720, the claims at issue were first raised on appeal, after a decision on the merits had been reached. It was, therefore, too late to correct any error. In the present case, although the claim of impropriety was not raised immediately upon the defendant’s counsel’s learning of the conversation in question, it was raised prior to any decision on the merits. The plaintiff has offered no authority to the effect that the claim must be made at any particular time other than prior to the rendering of a decision on the merits. We conclude that the motion for mistrial was timely filed.

We understand that when a case is tried in chambers, a judge is not insulated from casual contact with the parties and attorneys, unlike when a case that is tried in a courtroom. During a trial in chambers, however, the judge should take whatever special precautions are necessary to avoid such contact in order to prevent any resulting appearance of impropriety. Although our review of the record reveals no evidence of any actual impropriety, we conclude that there was the appearance of impropriety. See Krattenstein v. G. Fox & Co., supra, 155 Conn. 609. The motion for mistrial should have been granted.

The judgment is reversed and the case is remanded for a new trial.


author: LAVERY, J.

text:
    CHARLOTTE L. SHARP v. ZONING BOARD OF APPEALS OF THE TOWN OF EASTON ET AL.
    (13811)
    Lavery, Landau and Schaller, Js.
    Argued December 4, 1995
    officially released October 17, 1996

      Benjamin E. Gershberg, for the appellant (plaintiff).

      Lawrence F. Reilly, for the appellees (defendants).

       October 17, 1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   LAVERY, J.

The plaintiff appeals from the judgment of the trial court upholding the right of the named defendant, the zoning board of appeals of the town of Easton (board), to reconsider a decision it had made and published. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the board could reconsider and revoke its original decision without any material change of circumstances or the introduction of newly discovered evidence, (2) held that the board could reconsider and revoke its original decision when the court failed to find that the board’s decision to reconsider was supported by substantial and probative evidence, (3) remanded the case to the board rather than reinstating the board’s original decision, (4) held that undisclosed communications between the chairman of the Easton planning and zoning commission and two members of the board did not constitute ex parte communications and (5) held that the submission of a letter and appearance of the chairman of the planning and zoning commission before the board did not violate General Statutes § 8-11 and require invalidation of the decision to revoke.

Pursuant to Practice Book § 4013 (a) (l), the defendants present two issues for review. The defendants claim that (1) because the hearing and vote was conducted beyond the maximum time period permitted in General Statutes § 8-7d (a), this court must remand to the board for a new hearing, and (2) the trial court improperly concluded that the board held an impermissible hearing.

The trial court found the following facts. The plaintiff is the owner of a parcel of property measuring approximately eight acres and located in a B residence zone in the town of Easton. A residence and a detached garage are situated on the property. For many years the plaintiff has maintained several horses on the property.

On January 24, 1991, the zoning enforcement officer of the town of Easton sent a cease and desist order to the plaintiff stating that “[t]he garage building at 114 Center Road is being used for the [c]onduct of a business by person or persons who are not Easton residents and for sleeping quarters by the same persons.” The order further stated that such actions violated article VI and article IV, paragraph 4.1.1, of the Easton zoning regulations.

The plaintiff appealed the issuance of the cease and desist order to the board. On April 1, 1991, the board held a public hearing on the plaintiffs appeal. At the hearing, the plaintiff stated that for some time the second floor of the detached garage had been used on an irregular basis as sleeping quarters for a caretaker of the horses. The plaintiff further stated that the second floor of the garage contained a convertible couch, full bathroom, refrigerator and closet. She explained that the caretaker would sleep in those quarters overnight about three or four times a week.

At the conclusion of the hearing, the board tabled the matter until the first week of May, 1991. At the plaintiffs request, the hearing was rescheduled to June. The hearing resumed and was concluded on June 3, 1991. At the conclusion of the hearing, the board voted to grant the appeal and lift the cease and desist order. On June 6, 1991, the board notified the plaintiff that “[t]he use of the property as far as presented is for the hobby of keeping horses and for that use it is necessary to keep a person on the premises 24 hours a day. As such that would qualify as a customary and incidental use of the principal use of the property as a residence and as such having someone sleeping over would be acceptable because at this point it is not known if a business is being run. Which it would then be a prohibited use of the premises and then it would not be acceptable to have an individual sleeping over on the premises in the detached building.”

Notice of the board’s decision also was published on June 6,1991. On June 7,1991, the attorney for the board wrote to the zoning enforcement officer and stated that he had read in the newspaper that the cease and desist order had been lifted by the board. The attorney stated that it appeared that the matter was concluded as far as the board was concerned and that no further action by the board was necessary.

On June 17, 1991, the board convened a meeting to reconsider its vote on the plaintiffs appeal. Although no notice of this meeting appears in the record, the plaintiff concedes that the chairman of the board issued a notice that the board would convene a special meeting on June 17,1991, to reconsider its vote on the plaintiffs appeal. The plaintiff, however, claims that she was given only five days advance notice of the meeting. Although the plaintiff and her attorney attended the June 17 meeting, they submitted a letter objecting to that meeting and refused to participate.

At the commencement of the June 17 meeting, the chairman stated that he had called the meeting because (1) he believed that the board incorrectly lifted the cease and desist order based on hardship and (2) he received a letter from Monte Klein, chairman of the planning and zoning commission, urging the board to open the matter. Thereafter, the board voted to open and reconsider the decision.

The board returned to a discussion of the merits of the appeal. Over the plaintiffs objection, Klein was permitted to address the board. At the conclusion of the discussion, a member of the board moved to reaffirm the previous motion to lift the cease and desist order. That motion failed by a vote of three in favor and two opposed. Because General Statutes § 8-7 provides that “[t]he concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations,” both the moving member and a member who had opposed the motion agreed that the motion had been defeated.

The plaintiff, thereafter, appealed to the Superior Court claiming that (1) the board lacked authority to reconsider and revoke its decision of June 3, 1991, (2) the board’s decision to revoke its original granting of the plaintiffs appeal was not supported by the evidence in the record, (3) the decision was illegal because the board received additional evidence after the hearing was closed, (4) the board continued the public hearing beyond the time provided in § 8-7d and the board’s decision was illegal because the chairman of the planning and zoning commission submitted a letter to and personally appeared before the board in violation of General Statutes § 8-11 and (5) the board’s action of June 17 deprived her of property without due process of law in violation of the fourteenth amendment to the constitution of the United States and that she is entitled to attorney’s fees pursuant to 42 U.S.C. § 1983.

At the hearing on the appeal, the trial court took additional testimony based on the allegations of ex parte communications. See General Statutes § 8-8 (k). The trial court heard evidence from board member Alfred Treidell who testified that he voted with the majority at the June 3 meeting and that Klein called him after the board’s decision was printed in the paper to state his disagreement with the decision. Treidell testified that he did not disclose his conversation with Klein to the board at any time prior to or at the June 17 meeting, when he changed his mind and cast the deciding vote that changed the board’s original decision.* * Treidell also testified that Klein’s statements to him over the telephone were essentially the same as his statements to the board.

Board member Brian Fatse testified that he had a conversation with Klein in the hallway before the June 17 meeting concerning whether the planning and zoning commission had the right to reconsider a previously made decision. Klein told him that the board had the authority to reconsider a decision. Fatse testified that this affected his decision on the motion to reconsider. On cross-examination, Fatse testified he would have voted the same way if he had not talked to Klein. Fatse did not disclose at the June 17 meeting that he had had the conversation with Klein.

The chairman Donald Jordan testified that he did not vote at the June 3 meeting because his vote was not needed but he voted with Treidell at the June 17 meeting because he thought the zoning enforcement officer should be upheld. He testified that he changed his mind the night of the June 3 meeting but waited a few days to call a meeting and that at the time the meeting was called the secretary had already published the June 3 decision.

The trial court concluded that the board violated General Statutes § 8-7d (a) when it held an additional hearing to reconsider its earlier decision. The trial court sustained the appeal and remanded the matter for a new hearing. In its articulation, the trial court found that the conversations between Klein and the board members were not ex parte communications because the conversations took place after the board had rendered and published its decision.

The dispositive issue in this appeal is when and under what circumstances can a zoning board of appeals open and reconsider a final decision that has been published. In its decision, the trial court relied on dicta in Cicala v. Administrator, Unemployment Compensation Act, 161 Conn. 362, 369-70, 288 A.2d 66 (1971), in which our Supreme Court stated that, in the absence of a statutory prohibition, an administrative officer may open his decision within the appeal period for a proper purpose including to correct errors, to change his mind or to obtain more adequate factual grounds for his decision.

In Cicala, the administrator of unemployment compensation benefits notified the plaintiff that benefits had been mistakenly paid to him during a certain period and, therefore, he owed money to the unemployment compensation fund. The plaintiff appealed this decision to the unemployment compensation commissioner. The commissioner held hearings on the appeal and, on February 14, 1967, rendered a decision for the plaintiff. On February 27, 1967, the commissioner opened the case on motion of the administrator to present new evidence. On the basis of the new evidence, the commissioner reversed his previous decision. Id., 364.

Our Supreme Court upheld the right of the commissioner to open his decision. Id., 368-69. The court began by recognizing that General Statutes (Rev. to 1962) § 31-248 provided that “any decision of a commissioner in the absence of an appeal therefrom, as herein provided, shall become final on the fifteenth day after the date of its rendition.” Cicala v. Administrator, Unemployment Compensation Act, supra, 161 Conn. 368. The court stated that “[t]he authorities on whether an administrative body or officer may grant a rehearing, in the absence of a specific grant of such authority by statute, are divided. 2 Am. Jur. 2d, Administrative Law, § 522; note, 73 A.L.R.2d 939, 942. Most of the authorities cited deal with a situation wherein an agency seeks to open a decision which had become final. In such cases we have held many times that an administrative tribunal is not permitted to reverse itself unless there has been a material change of circumstances. Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111, 248 A.2d 922 [1968]; Consiglio v. Board of Zoning Appeals, 153 Conn. 433, 438, 217 A.2d 64 [1966]; Mynyk v. Board of Zoning Appeals, 151 Conn. 34, 37, 193 A.2d 519 [1963], ‘It is well settled that while an administrative officer or board may review a decision and revoke action once duly taken, it should not ordinarily do so; otherwise there would be no finality to the proceeding and the result would be subject to change at the whim of the officer or board or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence. Rommell v. Walsh, 127 Conn. 272, 276, [15 A.2d 6 1940], This is a wholesome and salutary rule but is by no means inflexible.’ Middlesex Theatre, Inc. v. Hickey, 128 Conn. 20, 22, 20 A.2d 412 [1941]. Here, the question is whether an administrative officer is authorized, between the time his decision is rendered and the time it becomes final, to open that decision and reverse it. ‘The need for an opportunity for correction of errors, change of mind, or obtaining more adequate factual grounds for a decision is no less present in the case of a decision of . . . [an administrative officer] than in the case of a judgment of a Court. The mere filing of a decision confers nothing in the nature of a vested right.’ Lyons v. Delaware Liquor Commission, 44 Del. 304, 318, 58 A.2d 889 [1948]; see Air-way Branches, Inc. v. Board of Review, 10 N. J. 609, 614, 92 A.2d 771 [1952].” (Emphasis added.) Cicala v. Administrator, Unemployment Compensation Act, supra, 369-70.

The difference between our Supreme Court’s decision in Cicala and this case is that the unemployment compensation statute, § 31-248, in existence at the time of Cicala, provided that the decision of the commissioner is not final until fifteen days after the decision is rendered. There is no provision in either the state statutes or the Easton zoning regulations that the decision of the board is not final at the time it is made. Nor is there any provision in the statutes or the Easton zoning regulations that provides for the board to review or open its decision once it is made. Because of the statutory difference concerning the finality of the decision, we are not persuaded by the dicta set out in Cicala.

“It is unresolved whether a land use agency can open and reconsider a decision after it has been made, but before publication of the notice of the decision. There is no land use statute allowing reconsideration, which suggests that it can only be done to correct errors or for some other extraordinary reason, in order to promote finality and certainty of decisions and to prevent attempts to influence agency members to change their minds. The statutory time limits for land use decisions have deterred this problem.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice § 21.1 (1996 Sup.). The factual situation in this case goes a step beyond Fuller’s analysis because the decision was published prior to the special meeting called to reconsider the decision.

In Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 236 A.2d 96 (1967), a case that involved an appeal taken from an order of a zoning enforcement officer, the plaintiff claimed that the board voted on the question on several separate occasions with different results and that the last vote was invalid. Our Supreme Court upheld the board’s decision and stated that “[although the board met on three different dates, the three meetings constituted but one session of the board. . . . We axe not here concerned with a situation in which a board has duly taken final action on a matter and has thereafter entertained an application for a rehearing. ... In the present case there was but one session of the board and one announcement of its decision. When the meeting was recessed on January 10 and again on January 18, the board members were aware that no final decision had been reached on the plaintiffs appeal and that there would be further deliberations on that matter. The rule in such situations is that, unless some right of a third person intervenes, all deliberative bodies have a right to reconsider their proceedings during a session as often as they think proper, when not otherwise provided by law, and it is the final result only which is to be regarded as the thing done. . . . The proceedings on the plaintiffs appeal were not terminated prior to January 22, 1966. The several votes were but steps taken toward a single, final decision.” (Citations omitted; emphasis added.) Id., 565-66.

The trial court correctly pointed out that the law of this jurisdiction is that a board cannot reverse its previous decision unless the facts and circumstances that actuated the decision are shown to have so changed as to vitiate or materially to affect the reason that produced and supported the decision. This rule has been applied in the context of successive applications or appeals to a board. See Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988).

In St. Patrick’s Church Corp. v. Daniels, 113 Conn. 132, 154 A. 343 (1931), the case often cited for the rule concerning successive applications, our Supreme Court included dicta applicable to the factual situation in this case. “The situation here presented is not that which has most frequently been subjected to question in the courts—a reconsideration and reversal of decision upon the same application or appeal. As to this, it appears to be well established that a zoning board of appeals or adjustment should not ordinarily be permitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceeding; the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence. People ex rel. Swedish Hospital v. Leo, 198 N.Y. Supp. 397; People ex rel. Brennan v. Walsh, 195 N.Y. Supp. 264; Baker, Legal Aspects of Zoning, p. 92. However, the power to reopen ‘should not be interpreted with too much refinement, nor should it be hedged about with technicalities, if, in the meantime, no rights have arisen which would be injured.’ Metzenbaum, Law of Zoning, p. 264. ‘Great difficulty might be experienced by a hard and fast rule denying permission to rehear and modify [the board’s] rulings; that is to say, in correcting matters which were overlooked and were of slight materiality, but which were capable of speedy and practical correction . . . without prejudice to the rights of any one. . . . But the power to reconsider is not an arbitrary one and its exercise should be granted only when there is justification and good cause.’ People ex rel. Brennan v. Walsh, supra, p. 266; McGarry v. Walsh, 210 N.Y. Supp. 286; Barker v. Boettger, 208 N.Y. Supp. 295; 43 Corpus Juris, p. 356. The foregoing is sufficient to indicate the reasonable and recognized limitations upon reconsideration and alteration of orders or decisions of such boards upon an application or appeal.” St. Patrick’s Church Corp. v. Daniels, supra, 137-38.

Although dictum is not binding because it is made “with no intent to lay down in positive form a rule of law”; Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955); we construe our Supreme Court’s language in St. Patrick’s Church Corp. to be persuasive and a balanced statement of the law as it applies to reconsideration of decisions made by a zoning board of appeals.

We must first decide, however, when a decision of the zoning board of appeals is final so that it cannot be opened before considering the issue of whether the board had justification and good cause for opening its decision. Section 8-7 of the General Statutes requires the decision to be published within fifteen days of the date the board makes its decision. If the board does not publish its decision within that time frame the statute allows the applicant to publish it. If the statute allows the applicant to publish the decision it must of necessity be a final decision. Unlike § 4-181 (a) of the Uniform Administrative Procedure Act, neither the Easton zoning regulations nor the zoning statutes provide for a motion to reconsider or allow the agency on its own motion to reverse or modify its own decision because of a change of circumstances. In addition, the zoning statutes provide for time limits to make decisions and these statutory limits cannot be extended by case law. See General Statutes § 8-7d. The publication of the decision is the promulgation of board’s final decision. In Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 387, 311 A.2d 277 (1972), the Supreme Court stated: “The requirement of timely publication contained in § 8-7 as well as § 8-28 is ‘a matter of substance and of the essence of the thing to be accomplished, not a matter of mere procedure or convenience.’ Akin v. Norwalk, [163 Conn. 68, 74, 301 A.2d 258 (1972)].”

In Akin v. Norwalk, supra, 163 Conn. 73-74, the Supreme Court stated: “The obvious purpose of § 8-28, requiring the publication in a newspaper of the decision of a commission, is twofold: (1) To give notice to interested parties of the decision, and (2) to commence the start of the fifteen-day appeal period. ‘It is the obvious purpose of § 8-28 to afford a right of appeal to a party aggrieved by the action of a planning commission. The right of appeal, if it is to have any value, must necessarily contemplate that the person who was to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue.’ Hubbard v. Planning Commission, 151 Conn. 269, 271-72, 196 A.2d 760 [1963].

“A statute which requires notice of a decision of a commission to be published so that aggrieved persons may determine whether they should appeal, and which, in fact, authorizes a fifteen-day appeal period to commence from the date of publication goes to the essence of the thing to be accomplished. Failure to publish notice of a decision would prevent the appeal period from running, thereby causing unwarranted and undesirable delay, results which we do not find the legislature could reasonably have intended. ‘[A] statute such as § 8-28 fixing a rather brief time within which an appeal may be taken to the courts is designed not only to afford protection to an aggrieved person but also to secure, in the public interest, a speedy determination of the issues involved.’ ” In Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985), in reviewing the adequacy of a published notice of decision the Supreme Court stated: “In reviewing the adequacy of the notice of decision employed here, we are mindful of the purpose such notice is meant to serve. ‘The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.’ Hubbard v. Planning Commission, [supra, 151 Conn. 271-72].”

It is obvious from the requirement of publication for the purpose of notice and by running the appeal period from the date of publication that the act of publication indicates that a final decision has been reached. There is a period of up to fifteen days between the date of decision within which the board may open its decision for good cause to correct matters that were overlooked and were capable of speedy and practical correction. Once the board published notice of the decision, its decision was final and could not be opened. Because the board opened its decision after the publication of notice thereof, that action was invalid and the published decision remained in effect. It is unnecessary to decide whether the board had good cause or justification to open its decision.

The defendants have raised two claims in their coun-terstatement of issues on appeal. The defendants claim that the June 3 hearing was in violation of General Statutes § 8-7d (a), which requires that hearing be completed within thirty days of commencement with an extension of no more than thirty days for a total of sixty days. The defendants argue that because the first hearing was held on April 1,1991, more than sixty-three days had passed and a new hearing was mandated by our Supreme Court’s decision in Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 538 A.2d 1039 (1988). The trial court declined to rule on the issue because the defendants did not raise it in a timely manner. We have reviewed the record, transcripts and trial briefs in this case and conclude that the trial court was correct that the defendants failed to raise this issue in a timely manner. We, therefore, decline to review this claim. See Practice Book § 285A.

The defendants’ second claim on appeal is that the court was incorrect in concluding that the board held an impermissible “hearing” on June 17,1991. Our decision that the meeting called to reconsider and open the original decision was invalid is dispositive of this issue.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the appeal of the plaintiff and reinstating the board’s original decision sustaining the plaintiffs appeal from the order of the zoning enforcement officer.

In this opinion the other judges concurred.

       Practice Book § 4013 (a) (1) provides in pertinent pari,: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed, (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial, or (C) claim that a new trial rather than a directed judgment should be ordered if the appellant is successful on the appeal, that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues. . . .”

       The defendants are the town of Easton and the board.

       When the board reconvened to reconsider its decision to sustain the plaintiffs appeal, the chairman made the following statement and read a letter from Klein: “I’d like to call this meeting to order. The meeting is for reconsideration of the vote on application Z-00000-91-4-5; C. Sharp, 114 Center Road To lift Cease and Desist Order Article IV, Section 4.1. The reason I called this meeting is first I thought myself that the Board made a decision based on a hardship which shouldn’t have been, I felt shouldn’t have been based on a hardship seeing that it was a cease and desist order. . . . Basically I want to make sure the board understood it is lifting a cease and desist order and they really, I felt, had to find an error with the zoning enforcement officer in carrying out his duties.
      “One other thing that prompted me to call this meeting is a letter that I received. It says, ‘Dear Mr. Jordan: At the last meeting of the Easton Zoning Board of Appeals the cease and desist order regarding the above property was lifted by a vote of your commission. Kindly note that Section 4.2.9 of the Town of Easton Zoning Regulations provide that a minimum of 10 acres is necessary for the inclusion of an outbuilding for residence for living or occupancy for any person other than the owner. Also note that the only person entitled to occupy the outbuilding is a full time employee employed by the residents of the main building. Further note that the full time employee may not be relatives of the residents of the main house. There is no other provision in the Easton Zoning Regulations for occupancy of any out buildings. With regard to the Sharp application it is my understanding that the [property] consists of less than 10 acres. Hence, Mrs. Sharp is prohibited from using the outbuilding for any occupancy whatsoever regardless of whether or not she is keeping the horses as a hobby or a business. In order to vary this prohibition it would be necessary for her to seek a variance from your Commission. This has not been done. Under the existing rules Mrs. Sharp maintained ahelper or assistant onpremises provided that person sleeps in the main house. I am hopeful that this information may be of assistance to you in your reconsideration deliberations. Very truly yours, Monte S. Klein, Chairman, of Planning and Zoning.’ ”

       The notice published in the newspaper stated: “C. Sharp, 114 Center Road. Reconsideration of vote to appeal Cease and Desist Order for violation of Article VI and Article IV, section 4.1 FAILED TO LIFT Cease and Desist Order.”

       Treidell testified that he changed his mind because he changed his “focus.”

       General Statutes § 8-7d (a) provides in pertinent part: “[I]n all matters wherein a[n] . . . appeal must be submitted to a . . . zoning board of appeals under this chapter and a hearing is required on such . . . appeal, such hearing shall commence within sixty-five days after receipt of such . . . appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.”

       General Statutes § 8-7 provides in pertinent part: “Whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based. Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who requested or applied for such special exception or variance or took such appeal may provide for the publication of such notice within ten days thereafter. Such exception or variance shall become effective upon the filing of a copy thereof (1) in the office of the town, city or borough clerk, as the case may be, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located and (2) in the land records of the town in which the affected premises are located, in accordance with the provisions of section 8-3d.”

       Practice Book § 285A provides in pertinent part: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.”