author: HEALEY, J.

text:
    STEVEN BANCROFT v. COMMISSIONER OF MOTOR VEHICLES
    (AC 16554)
    Lavery, Spear and Healey, Js.

      Argued December 12, 1997
    officially released April 14, 1998

      Edward S. Domnarski, for the appellant (plaintiff).

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

HEALEY, J.

On April 7, 1996, the plaintiff, Steven Bancroft, was arrested in Old Saybrook for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a) On April 11, 1996, the defendant commissioner of motor vehicles notified the plaintiff of the suspension of his Connecticut motor vehicle operator’s license pursuant to General Statutes (Rev. to 1995) § 14-227b (d).*

On April 24,1996, an administrative hearing was held before a hearing officer pursuant to § 14-227b (f). At that hearing, there was no testimony, but two exhibits were admitted into evidence. The commissioner submitted the arresting officer’s form A-44 report of the arrest and the times and results of the chemical blood alcohol content (BAC) tests administered to the plaintiff. The two breath tests administered by the arresting officer demonstrated a BAC of 0.148 percent on each, which were in excess of the 0.10 percent BAC set out in § 14-227a (a). The plaintiff submitted a letter from James E. O’Brien, a toxicologist, to the plaintiffs attorney.* * On that date, the hearing officer rendered his decision affirming the one year suspension.

Thereafter, the plaintiff appealed the commissioner’s decision of suspension to the Superior Court. The court pointed out that the sole basis of the appeal was that there was insufficient evidence to support the hearing officer’s decision that the plaintiffs BAC at the time of operation exceeded the legal level. The plaintiff claimed that the O’Brien letter legally rebutted the inference permitted by § 14-227b (f), which meant, he argued, that the commissioner was required to provide additional evidence that would extrapolate the test results back to the time of operation. In rejecting the plaintiffs claim, the trial court referred to two recent cases of this court to support its position. Those cases were State v. Nokes, 42 Conn. App. 10, 678 A.2d 510, remanded for reconsideration, 239 Conn. 926, 683 A.2d 22, on remand, 44 Conn. App. 40, 686 A.2d 999 (1996), and State v. Korhn, 41 Conn. App. 874, 678 A.2d 492, cert. denied, 239 Conn. 910, 682 A.2d 1010 (1996). The trial court pointed out that both cases involved § 14-227a, which contains provisions that are “essentially identical” to those in § 14-227b, and held in effect that the statute creates only a permissive presumption or inference. The trial court also stated that these decisions established that the jury may draw the inferences, despite expert evidence to the contrary, provided that the jury finds the predicate facts to be true and disbelieves the contrary evidence. The court decided that this analysis also applied to an administrative proceeding under § 14-227b. Accordingly, the trial court reasoned, a hearing officer may rely on the statutory presumption and infer that the plaintiffs BAC had exceeded the legal BAC level at the time of operation, provided that there was substantial evidence to provide the predicate facts. It also meant that if there was contrary expert evidence before the hearing officer, the hearing officer was free to believe or disbelieve that evidence. The trial court also decided that no additional expert evidence was required to rebut the plaintiffs expert evidence in such a case. This appeal followed.

On appeal to this court, the plaintiff claims that the trial court improperly (1) held that the presumption created by § 14-227b could withstand “uncontroverted expert testimony that it was not possible with reasonable scientific certainty to determine [the] alcohol level [in the blood] at the time of operation,” and (2) dismissed his appeal after the hearing officer arbitrarily and capriciously had ignored the evidence of his expert witness.

The plaintiff correctly acknowledges that under § 14-227b (f), “[i]n the [administrative] hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person ... at the time of operation. . . .” He points out that in providing that the BAC test results “shall be sufficient,” the legislature created a “rebuttable presumption” that the test results can be used in place of direct evidence to prove the BAC at the time of operation and that the presumed fact is that the driver had a BAC equal to or more than 0.10 percent. We agree.

Relying on the letter from his expert, O’Brien, the plaintiff contends that he has rebutted the “rational connection” between the test results and the presumption that his BAC at the time of operation can be determined from them. He depends heavily on O’Brien’s letter and argues that it “stated in essence that because of the flat readings . . . ‘there is no extrapolation factor nor any other rehable means to determine [the plaintiffs] alcohol level at the time of operation. Also, for similar reasons it is impossible to state with reasonable scientific certainty that [the plaintiffs] alcohol level was

at or above 0.1 percent at the time in question (0150 hours).’ ” This uncontradicted expert evidence, the plaintiff claims, makes the statutory presumption disappear from the case. It effectively “annuls” the claimed connection between the basic fact, i.e., the test results, and the presumed fact, i.e., that his BAC at the time of operation was 0.10 percent or greater. In effect, the plaintiff argues that his expert evidence in O’Brien’s letter rebuts the presumption created by § 14-227b and shifts the burden of proof to the commissioner who, in turn, did not sustain that burden. The plaintiff ultimately claims that because the commissioner did not produce more evidence on the BAC level at the time of operation, the plaintiff must be found to have rebutted the statutory presumption with substantial countervailing evidence and his license should not have been suspended.

The plaintiff’s other claim is that suspension of his license was improper because the hearing officer “arbitrarily and capriciously ignored or disregarded the evidence of his expert witness.” In advancing this claim, he contends that in a § 14-227b hearing, the hearing officer acts as the fact finder and has a responsibility different from that of a jury in a criminal case. To support this position, he maintains that this distinction is mandated by the relevant departmental regulation, § 14-227b-20 of the Regulations of Connecticut State Agencies. Stressing subsection (b) of that regulation as highlighting the different responsibility of the hearing officer from that of a jury, the plaintiff argues that the trial court improperly affirmed the hearing officer’s decision where the hearing officer had disregarded the only expert testimony produced at the hearing. The plaintiff argues, quoting Tanner v. Conservation Commission, 15 Conn. App. 336, 341, 544 A.2d 258 (1988), that while an administrative agency is not required “to believe any of the witnesses, including expert witnesses ... it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge [on a specific issue].” (Citation omitted.) The plaintiff contends that it was not legal for the hearing officer to rely on his own special or expert knowledge, if he had any, concerning the issue of the BAC level. If the hearing officer intended to do that, then Feinson v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980), required that he so notify the plaintiff in a timely fashion. Because the hearing officer made no reference to the O’Brien letter in his decision, the plaintiff argues that the hearing officer acted in a manner that was “arbitrary, capricious, illegal and an abuse of discretion.”

The commissioner counters that in an appeal under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., judicial review is very limited, and the plaintiff has the burden of demonstrating that the hearing officer has acted unreasonably, arbitrarily, illegally or in abuse of his discretion. This review, the commissioner argues, prohibits the reviewing court from retrying the case, reassessing credibility, determining factual issues within the province of the administrative agency or substituting its judgment for that of the agency. In this case, he argues, the decision of the healing officer must be affirmed because there is substantial evidence to support his decision. The commissioner also argues that the Nokes and Korhn decisions cannot be distinguished as the plaintiff claims. In the decisional context, he also argues that Ramisk v. Commissioner of Motor Vehicles, 45 Conn. App. 924, 696 A.2d 1325, cert. denied, 243 Conn. 923, 701 A.2d 343 (1997), is on “all fours” with this case. With reference to the O’Brien letter, he claims that the hearing officer had the right to believe or disbelieve it, in whole or in part, even though it was the only expert evidence before him. He argues that the hearing officer did not believe the O’Brien letter. The commissioner argues that the statutory presumption that the plaintiffs BAC was in excess of the 0.10 percent level at the time of operation was not rebutted and, therefore, the Superior Court correctly sustained the decision of the hearing officer.

I

“ [J] udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [§§ 4-166 through 4-189], and the scope of that review is very restricted.” (Internal quotation marks omitted.) Costello v. Kozlowski, 47 Conn. App. 111, 114, 702 A.2d 1197 (1997); see Burinskas v. Dept. of Social Services, 240 Conn. 141, 146, 691 A.2d 586 (1997) (citing General Statutes § 4-183 [j]* concerning limited review of agency decision); Pickles v. Goldberg, 38 Conn. App. 322, 324-25, 660 A.2d 374 (1995); Lawrence v. Kozlowski, 171 Conn. 705, 707, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977).

“The substantial evidence rule governs judicial review of administrative [fact-finding] under General Statutes [§ 4-183 (j)]. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987); Lawrence v. Kozlowski, [supra, 171 Conn. 713-14]. An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. Huck v. Inland Wetlands & Watercourses Agency, supra, 541, quoting Lawrence v. Kozlowski, supra, 713. Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule. Huck v. Inland Wetlands & Watercourses Agency, supra [541], In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. Id., 540-42. . . . Basically, an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980). Huck v. Inland Wetlands & Watercourses Agency, supra, 542.” (Internal quotation marks omitted.) Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217-18, 554 A.2d 292 (1989); see Dolgner v. Alander, 237 Conn. 272, 280-82, 676 A.2d 865 (1996); Ellam v. Commissioner of Motor Vehicles, 47 Conn. App. 509, 512-13, 704 A.2d 257 (1998); Pickles v. Goldberg, supra, 38 Conn. App. 325.

We are aware that our Supreme Court has said: “ ‘[W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion.’ ” (Emphasis in original.) Stamford v. Freedom of Information Commission, 241 Conn. 310, 314, 696 A.2d 321 (1997); Burinskas v. Dept. of Social Services, supra, 240 Conn. 147.

II

A

Initially, we cannot accept the plaintiffs claim that his uncontradicted expert evidence shifted the burden of proof to the commissioner to demonstrate by evidence that the plaintiffs BAC at the time of operation was at least 0.10 percent. The plaintiff misconstrues the nature of the statutory rebuttable presumption as set out in § 14-227a (c). A “rebuttable presumption” is defined as a “permissive inference.” State v. Korhn, supra, 41 Conn. App. 880-82. In Korhn, we said: “Our Supreme Court has stated that [a] permissive inference suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but does not require the jury to draw that conclusion. . . . State v. Amarillo, 198 Conn. 285, 302, 503 A.2d 146 (1986). An entirely permissive inference or presumption, which allows— but does not require—the trier of fact to infer the elemental fact from the proof by the prosecutor of the basic one and that places no burden of any kind on the defendant . . . [does not violate due process unless] there is no rational way the trier could make the connection permitted by the inference. Ulster County Court v. Allen, [442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)] .... State v. Truppi, 182 Conn. 449, 456, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed 2d 329 (1981).” (Internal quotation marks omitted.) State v. Korhn, supra, 879-80.

As we explained in Korhn, “the permissive inference or presumption” as set out in the statute does not shift the burden of proof on the matter of intoxication at the time of operation to the motor vehicle operator, but rather permits the fact finder to conclude that the presumed fact—BAC of at least 0.10 percent at the time of operation—exists if the fact finder finds the basic fact—test readings in excess of those required to trigger the exception under § 14-227a (c). The test readings in this case do not trigger the exception set out in that statute.

B

The plaintiff also claims that the hearing officer disregarded the O’Brien letter and that “it was not legal for [him] to rely on his own special or expert knowledge, if any, regarding the issue of BAC level.” In addition, the plaintiff argues that if the hearing officer “intended to use his special or expert knowledge, he was required to notify the plaintiff of that fact in a timely manner.”

To claim, as the plaintiff does, that the hearing officer disregarded the O’Brien letter and, in effect, relied on his “own special or expert knowledge” is to attribute to him a failure to perform his duty. See Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 564, 345 A.2d 520 (1973). The hearing officer who heard the matter and decided to uphold the suspension of the plaintiffs motor vehicle operator’s license was a “public officer” and acted in this matter as a statutory designee of the defendant commissioner, having been appointed by him. See General Statutes § 14-4a. As a public officer, the hearing officer is presumed to have acted legally and properly until the contrary appears. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986); Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, supra, 568; Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124, 612 A.2d 82, cert. denied, 223 Conn. 920, 615 A.2d 507 (1992); Housing Authority v. Peraro, 40 Conn. Sup. 365, 376, 509 A.2d 569 (1985), aff'd, 199 Conn. 566, 509 A.2d 474 (1986). We are entitled to presume that the hearing officer considered all the evidence before him in arriving at his decision, which was limited by statute to a determination of four specific issues. See General Statutes § 14-227b (f).

The plaintiff has not shown that the hearing officer “relied on his own special or expert knowledge” for two reasons. First, as noted, the plaintiff has not demonstrated that the hearing officer disregarded the O’Brien letter. Second, the plaintiffs reliance on Feinson v. Conservation Commission, supra, 180 Conn. 429, and Tanner v. Conservation Commission, supra, 15 Conn. App. 340, is inapposite here. In both of those cases, the appellate courts reversed the decisions of the conservation commissions involved where their decisions were contrary to the unrebutted expert testimony. Since Feinson and Tanner, however, our appellate courts have handed down decisions that point out that the trier of fact is not required to believe unrebutted expert testimony, but may believe all, part or none of such unrebutted expert evidence.

In State v. Blades, 225 Conn. 609, 625, 626 A.2d 273 (1993), the defendant, charged with murder, presented the testimony of aboard certified psychiatrist in support of his affirmative defense of extreme emotional disturbance. The state did not introduce any expert evidence to refute the defendant’s claim as to that defense. The defendant was found guilty of murder. On appeal, the defendant claimed that because the state did not present its own expert evidence to rebut this defense, the trial court was required to accept his evidence and to find that the defendant had sustained his burden of proof on that defense. Id., 627. In rejecting this claim, our Supreme Court said: “Despite the defendant’s contention to the contrary, the trial court is not required to accept uncontradicted expert testimony. The court might reject it entirely as not worthy of belief or find that the opinion was based on subordinate facts that were not proven.” Id., 629.

In Pickles v. Goldberg, supra, 38 Conn. App. 325, this court, quoting with approval from Briggs v. State Employees Retirement Commission, supra, 210 Conn. 217, said: “In determining whether an administrative finding is supported by substantial evidence, a court must defer to the [commissioner’s] . . . right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Internal quotation marks omitted.)

State v. Nokes, supra, 42 Conn. App. 10, was a case tried to a jury in which the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor and in which the rebuttable presumption of § 14-227a (c) was involved. In that case, only the defendant offered expert testimony, which the trial court told the jury to consider on the issue of whether it rebutted the statutory presumption that would otherwise exist. The jury chose not to credit that expert testimony and it returned a verdict of guilty. On appeal, drawing on State v. Korhn, supra, 41 Conn. App. 874, in which the jury instructions were “very similar” to those in Nokes, we affirmed. State v. Nokes, supra, 13.

Quite similar to the case now before us is that of Ramisk v. Commissioner of Motor Vehicles, supra, 45 Conn. App. 924. In that case, the plaintiff appealed from the defendant commissioner’s suspension of his motor vehicle operator’s license pursuant to § 14-227b because the plaintiff had failed the chemical test of his BAC. He argued on his appeal that there was insufficient evidence in the record to support the hearing officer’s determination that at the time of operation, his BAC exceeded the legal level under the statute. Specifically, the plaintiff argued that the letter of his expert, which was in evidence at the administrative hearing, legally rebutted the presumption created by § 14-227b and shifted the burden of proof to the commissioner. That meant, according to the plaintiff, that the commissioner was required to adduce additional evidence that would extrapolate the chemical test results back to the time of operation. The Ramisk trial court rejected these claims. In doing so, it cited both Nokes and Korhn for the proposition that the presumption was “sufficient to withstand expert evidence to the contrary and support a conviction without further evidence, if the jury disbelieves the contrary evidence.” Ramisk v. Commissioner of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96-0558492 (July 11, 1996). The Ramisk trial court held that this principle applied equally to an administrative hearing under § 14-227b, saying that “[a] hearing officer may rely on the presumption created by the statute if he or she disbelieves expert evidence to the contrary. Additional expert evidence to rebut the plaintiffs evidence is not required in such a case.” Id. We are persuaded, therefore, that in such cases the fact finder is not required to accept such expert evidence to the extent that he or she disbelieves it in whole or in part. The plaintiff has not shown that this hearing officer, acting as a public officer did, in fact, disregard O’Brien’s letter as claimed.

“Although proceedings before administrative agencies . . . are informal and are conducted without regard to the strict rules of evidence, the hearing must be conducted so as not to violate the fundamental rules of natural justice. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). ‘Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.’ Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984).” Palmisano v. Conservation Commission, 27 Conn. App. 543, 546-47, 608 A.2d 100 (1992). The conduct of the hearing must be fundamentally fair. Manor Development Corp. v. Conservation Commission, supra, 180 Conn. 697; Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 (1967). The plaintiff concedes that he could have subpoenaed the arresting officer and that he could have had O’Brien testify. He elected not to do so. See Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 509, 671 A.2d 844 (1996). Nothing appears to have made the administrative hearing fundamentally unfair.

We conclude that the administrative record contains substantial evidence supporting the defendant commissioner’s suspension of the plaintiffs motor vehicle operator’s license. Thus, the trial court was correct in holding that the commissioner’s finding was not clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor .... A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor . . . if he operates a motor vehicle ... (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes (Rev. to 1995) § 14-227b (d), as amended by No. 95-279, § 1, of the 1995 Public Acts, provides: “Upon receipt of such report, the commissioner of motor vehicles may suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator’s license or nonresident operating privilege is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of the suspension and may schedule such hearing by contacting the department of motor vehicles not later than seven days after the date of mailing of such suspension notice.”

       General Statutes (Rev. to 1995) § 14-227b (f), as amended by No. 95-279, § 1, of the 1995 Public Acts, provides in relevant part: “If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. At the request of such person or the hearing officer and upon a showing of good cause, the commissioner may grant one continuance for a period not to exceed fifteen days. If a continuance is granted, the commissioner shall extend the validity of the temporary operator’s license or nonresident operating privilege issued pursuant to subsection (c) of this section for a period not to exceed the period of such continuance. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. . .

       O’Brien’s letter stated in relevant part: “I have reviewed the State of Connecticut Department of Motor Vehicles Administrative report and the circumstances surrounding the arrest of Mr. Steven Bancroft on April 7, 1996, for allegedly driving under the influence of alcohol. According to the documents, Mr. Bancroft was stopped at 0150 hours, and Intoxüyzer 5000 tests were performed at 0336 and 0410 hours. The results of these tests were 0.148% on both occasions.
      “In regard to your inquiry as to Mr. Bancroft’s blood alcohol level at the time of operation, this cannot be established. This is based on the fact that the values obtained on the two tests performed 34 minutes apart are identical. One would expect the alcohol level, because of metabolism, to have decreased 0.010% (average decrease is 0.018%) during this interval. These identical values could only have been obtained if Mr. Bancroft was absorbing alcohol from his stomach at least to a point between the two tests. Since there is no doubt that Mr. Bancroft was absorbing alcohol in the time between tests, there is no question that he was also absorbing alcohol from the time of the stop to the time of the first test. In such situations, there is no extrapolation factor nor any other reliable means to determine Mr. Bancroft’s alcohol level at the time of operation. Also, for similar reasons it is impossible to state with reasonable scientific certainty that Mr. Bancroft’s alcohol level was at or above 0.1 percent at the time in question (0150 hours).”

       Section 14-227b provides an exception to the presumption that demonstrates an implicit understanding that in limited circumstances, not present here, the mere presence of a BAC of over 0.10 percent is not sufficient to infer a BAC of over 0.10 percent while operating the motor vehicle. The exception contained in the statute provides: “In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. . . .” General Statutes (Rev. to 1995) § 14-227b (f).

       The plaintiff claims that State v. Nokes, supra, 42 Conn. App. 10, and State v. Korhn, supra, 41 Conn. App. 874, are distinguishable because in those cases the defendant did not rebut the presumption with “substantial contrary evidence.”

       Section 14-227b-20 (a) of the Regulations of Connecticut State Agencies provides: “The hearing officer shall make a determination of the facts at the hearing on the basis of all the relevant evidence presented at the hearing. A separate finding of fact shall be made by the hearing officer for each of the issues.
      “(b) The determination of the facts by the hearing officer shall be independent of the determination of the same or similar facts in the adjudication of criminal charges arising out of the person’s arrest for the enumerated offense.”

       As already noted, there was no live testimony produced before the hearing officer. Both the plaintiff operator and the defendant commissioner presented only documentary evidence.

       The commissioner notes that the letter states that O’Brien could not conclude what the plaintiffs BAC was at the time of operation.

       There is no question raised concerning either the timing and administra1ion of the two BAC tests or the proper functioning of the equipment when the BAC tests were administered.

       General Statutes § 4-183 Q) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       An instructive and similar case on this matter is State v. Pluta, 157 Vt. 451, 600 A.2d 291 (1991). Vermont’s administrative per se suspension statute contained a presumption that stated, “[I]f there was at any time within two hours of operating, attempting to operate or being in actual physical control of a vehicle an alcohol concentration of 0.10 or more, it shall be a rebuttal presumption that there was 0.10 percent or more by weight of alcohol in the blood at the time of operating, attempting to operate or being in actual physical control.” Id., 453. In that case, the defendant was arrested on November 10, 1990, at approximately 1:10 a.m., and a chemical breath test conducted at 2:40 a.m. disclosed that his BAC was 0.15 percent. At the civil license suspension hearing, the defendant introduced an affidavit from a chemist. That chemist testified that “it is possible for a person to have a test result over .10 percent within 2 hours of operation and be under .10 percent at the time of operation.” Id., 452. The trial court held that the chemist’s affidavit rebutted the statutory presumption that the defendant’s BAC was over 0.10 percent at the time of operation. It further held that even with that, the state still could have prevailed had it introduced evidence that related the test back to the time of operation. The state, however, not having done so, failed to show that there was a rational connection between a test result of 0.15 percent BAC one hour and thirty minutes after operation and a BAC of 0.10 percent at the time of operation. The trial court then found for the defendant.
      The Vermont Supreme Court reversed on appeal. In doing so it said: “Under Vermont law, a civil presumption effectively places the burden of going forward with the evidence on the party against whom it operates. Rocque v. Co-operative Fire Ins. Assn, of Vermont, 140 Vt. 321, 325-26, 438 A.2d 383, 386 (1981); V.R.E. 301(a). Thus, the defendant had to present evidence to rebut the presumed fact that his level of intoxication violated the statute. See 9 Wigmore on Evidence § 2494, at 379 (Chadboum rev. 1981) .... To satisfy that burden, defendant was not required to ‘overcome’ the presumption with evidence. Tyrrell v. Prudential Ins. Co. of America, 109 Vt. 6, 23-24, 192 A. 184, 192 (1937); Rocque, 140 Vt. at 326, 438 A.2d at 386. He was required only to produce evidence sufficient to support a finding that his blood alcohol level was under 0.10 percent at the time of operation. See Fidelity & Deposit Co. of Maryland v. Wu, 150 Vt. 225, 228, 552 A.2d 1196, 1198 (1988) ....
      “To rebut a statutory presumption the opponent’s evidence must do more than raise a mere theoretical possibility that the presumed fact does not exist. See Insurance Co. of North America v. Millers’ Mutual Ins. Assn, of Illinois, 139 Vt. 255, 258, 427 A.2d 354, 355 (1981) .... Otherwise, the use of a presumption to shift the burden of going forward with certain evidence would be meaningless. Since a rebuttable presumption already assumes that the presumed fact will not be true in all cases, it is not rebutted simply by recognizing the possibility that it can be rebutted. To fairly put the presumed fact in issue, specific evidence is required to show that the presumed fact was not true in the particular case, given its actual underlying facts and circumstances.
      “In the instant case, defendant’s evidence was insufficient to defeat the statutory presumption that a person is intoxicated at the time of operation if his BAC within two hours of operation is .10 percent or more. The trial court erred in concluding that evidence of a general, theoretical nature was sufficient to rebut 23 V.S.A. § 1205(m)’s presumption. . . . Such a holding defeats the obvious purpose of the statute, which is to shift the burden of submitting relation-back evidence to the party most able to provide it.” (Citations omitted.) State v. Pluta, supra, 157 Vt. 453-55.

       Section 14-227b-17 (a) of the Regulations of State Agencies provides in relevant part: “The hearing shall be conducted by a hearing officer appointed by the commissioner pursuant to Section 14-4a of the General Statutes, and shall be limited to a determination of the issues stated in subsection (f) of Section 14-227b of the General Statutes, as amended by Section 1 of P.A. 89-314. . . .”

       General Statutes § 14-4a, titled, “Conduct of hearings and rendering of decisions,” provides: “In any case where a hearing is required or authorized under the provisions of any statute dealing with the Department of Motor Vehicles such hearing may be conducted by and the decision rendered therein by the commissioner or by anypersonorpersons designated by him.”

       Neither Feinson nor Tanner involved the use of a statutory presumption.

       The Blades trial was conducted before and decided by a three judge court.

       Our decision in State v. Nokes, supra, 42 Conn. App. 10, was remanded by the Supreme Court in State v. Nokes, 239 Conn. 926, 683 A.2d 22 (1996), and our decision after remand is State v. Nokes, 44 Conn. App. 40, 686 A.2d 999 (1996). The remand did not involve our implicit holding in our original decision that in that case the trier of fact, in determining whether the rebuttable presumption was rebutted, could choose not to credit, in whole or in part, unrebutted expert testimony.

       The plaintiff also appears to claim that in a § 14-227b hearing, the hearing officer acts as a finder of fact and that he has “a different responsibility” from that of a jury in a criminal case. In making this claim in the larger context of how this hearing officer disregarded the only expert testimony produced at the hearing, the plaintiff first states that this distinction is specifically mandated by § 14-227b-20 of the Regulations of Connecticut State Agencies and then states that the “decision responsibility” of the hearing officer is “defined” by § 14-227b-23 of those regulations. The latter, titled, “Form of Decision,” provides: “The decision of the hearing officer, if adverse to the person, shall include the findings of fact and conclusions of law necessary to the decision and any appeal thereof.”
      The plaintiff’s claim merits little discussion. We have already concluded that the plaintiff has not shown, as is his burden, that this hearing officer did in fact disregard the O’Brien letter or fail to consider it. In addition, the plaintiff has not shown, as is his burden, that the hearing officer’s “determination of the facts . . . [were not in keeping with his duty] independent of the determination of the same or similar facts in the adjudication of criminal charges arising out of the person’s arrest for the enumerated offense.” (Emphasis added.) Regs., Conn. State Agencies § 14-227b-20 (b).


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    RHONDA F. MINER v. CHRISTOPHER A. MINER
    (AC 16786)
    Lavery, Sullivan and Dupont, Js.
    Argued January 22
    officially released April 14, 1998

      Richard D. Dixon, for the appellant (defendant).

      Stephen E. Reck, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The dispositive issue in this appeal from the judgment of the trial court dismissing on jurisdictional grounds the defendant’s motion for modification of child support is whether the trial court has jurisdiction to modify a valid postmajorify support order absent a written agreement by the parties giving it the power to modify. We hold that it does not and affirm the trial court’s judgment.

The pertinent facts, which are not in dispute, are as follows. The parties’ marriage was dissolved in 1984. A separation agreement was entered into at that time and incorporated into the judgment. It provided for the college education of the two minor children as follows: “The [defendant] agrees to pay an amount equal to the then existing rates for books, fees and tuition at the University of Connecticut for resident students for four years of college education for each of the two minor children of the parties, and the parties shall equally pay the cost of room and board.” In August, 1996, the defendant moved to open the judgment for the purpose of modifying the postmajority education provisions and to reexamine the proportion of expenses to be paid by the defendant and the plaintiff. The defendant claimed a substantial change in his economic circumstances and earnings, and a substantial change in the relative earnings of the plaintiff and the defendant. In his claim for relief, the defendant asked for an order reallocating the proportion of expenses. There is no written agreement allowing modification of the college expenses clause of the separation agreement. The trial court ruled that in accordance with General Statutes § 46b-66 it lacked jurisdiction to modify postmajority support where there is no written agreement to modify. The court relied on Hirtle v. Hirtle, 217 Conn. 394, 399, 586 A.2d 578 (1991), and Albrecht v. Albrecht, 19 Conn. App. 146, 154-55, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). After the defendant’s motion to reargue was granted, the trial court affirmed its prior ruling.

In 1977, “[t]he legislature amended General Statutes § 46L-66 (then § 46-49) in order to provide for the support of postmajority children only if there is an agreement to do so and if it is in writing. Public Acts 1977, No. 77-488, § 1. The legislative history of the amendment makes it clear that such is the case. The puipose of the amendment was to ensure that a written agreement involving support for adult children and submitted to the court by the parties in connection with an action for a dissolution of marriage could be incorporated into the judgment or orders of the court, thereby making such orders enforceable through contempt proceedings. 20 H.R. Proc., Pt. 8, 1977 Sess., pp. 3022-25; 20 H.R. Proc., Pt. 13,1977 Sess., pp. 5591-92; 20 S. Proc., Pt. 8,1977 Sess., pp. 3013-14. The legislature recognized that although a contract for the support of adult children might be enforceable by instituting a separate action for the enforcement of that contract, such a suit would require a lengthier time for resolution and that the agreement could not be enforced by contempt proceedings .’’ Arseniadis v. Arseniadis, 2 Conn. App. 239, 244-45, 477 A.2d 152 (1984).

The defendant claims that since there is a valid written agreement of postmajority support and education properly incorporated into the judgment of dissolution and the agreement is silent as to any conditions on which it may be modified, then General Statutes § § 46b-66 and 46b-86 provide continuing jurisdiction for the court to open and modify postmajority support. The defendant relies on Barnard v. Barnard, 214 Conn. 99, 570 A.2d 690 (1990), to substantiate his claim and seeks to distinguish Hirtle v. Hirtle, supra, 217 Conn. 394, and Albrecht v. Albrecht, supra, 19 Conn. App. 146, which the trial court relied on in its decision.

The defendant relies on the following language in Barnard to substantiate his position. “The jurisdiction of the Superior Court as it relates to postmajority child support derives solely from ... § 46b-66. . . . Such jurisdiction is limited to the power to approve and incorporate written agreements concerning such support into its orders or decrees and to enforce such written agreements. . . . Agreements between parties regarding the postmajority education of children are required to be in writing. . . . Once the provisions of a separation agreement, including provisions for the postmajority education of children, are incorporated into the dissolution judgment, they can be modified by court order only if the agreement so incorporated does not preclude modification. . . . General Statutes § 46b-86 (a) provides in part that [u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . modified by a showing of a substantial change in the circumstances of either patty.” (Citations omitted; emphasis added; internal quotation marks omitted.) Barnard v. Barnard, supra, 214 Conn. 113-14.

The language emphasized is dictum and not the holding of the Barnard case. In Barnard, the written agreement providing for postmajority college education contained a specific provision authorizing modification of postmajority college education and support. The Supreme Court held in Barnard that “the parties clearly intended that the provisions of paragraph 3.9 apply to all of Article III, as it plainly provided in its introductory language: In the event that the parties cannot agree upon the Husband’s obligations or abilities under this Article III, either party may petition the Superior Court .... The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract. . . . This can easily be done in the present case. It is correct that paragraph 3.10 contains no language that imposes any condition upon the defendant’s ability to pay or even expressly mentions his ability to pay. It is clear, however, that simply because the plaintiff has remarried and the defendant is thereby relieved of making further alimony payments he will always, for as long as required to do so by the agreement, nevertheless, be financially obligated to meet the costs of the education of the Barnard children. If the parties intended to make paragraph 3.9 inapplicable to paragraph 3.10, the agreement should have so stated; it did not, and, hence, paragraph 3.10, as well as the balance of Article III, is subject to paragraph 3.9. Where parties have their agreement in writing their intention is to be determined from its language and not on the basis of any intention either may have secretly entertained. . . . Accepting the plaintiffs claim here would render the plain language of paragraph 3.9 meaningless as to paragraph 3.10. Parties generally do not insert meaningless provisions in their agreements and therefore every provision must be given effect if reasonably possible. . . . Paragraph 3.9 is not clearly meaningless as it relates to paragraph 3.10. Therefore, the defendant’s obligations under paragraph 3.10 are subject to modification and the court erred in concluding otherwise.

“It was, therefore, error for the trial court to conclude that the defendant’s obligations or abilities to pay post-majority education costs for the Barnard children under paragraph 3.10 were not subject to modification under the dissolution decree.” (Citations omitted; internal quotation marks omitted.) Barnard, v. Barnard, supra, 214 Conn. 115-17.

It is clear from the language of Barnard that the Supreme Court based its analysis and holding on the interpretation of the contractual language of the written agreement incorporated into the dissolution decree and that said agreement gave the court the power to modify the postmajority college education and support provisions of said decree.

In Albrecht v. Albrecht, supra, 19 Conn. App. 146, there was a provision in the written separation agreement that was incorporated by reference into the dissolution decree that provided that any modification of the terms of the agreement was required to be in writing. This provision was the basis of this court’s upholding the denial of the plaintiffs claim that an oral agreement of the modification was a defense to the defendant’s motion to hold the plaintiff in contempt for failure to pay postmajority education expenses. This court, however, in upholding the trial court’s granting of the defendant’s motion to dismiss the plaintiffs motion to modify the terms of the postmajority college and professional education clause, held, without referring to the lack of written agreement provision in the separation agreement, that the trial court does not have the jurisdiction pursuant to § 46b-86 to modify, without awritten agreement of both parties, apostmajority child support order entered pursuant to § 46b-66. This court reasoned: “[Section] 46b-86 provides that the trial court may modify final orders for payment of alimony or support upon a showing of a substantial change in the circumstances of either party. The plaintiff argues that the power granted by § 46b-66 to enforce written agreements concerning postmajority child support includes the power to modify such agreements pursuant to § 46b-86. His argument rests on the proposition that because § 46b-86 (a), governing modifications of alimony, support orders and judgments, states that ‘any final order’ may be modified upon a showing of a substantial change in the circumstances of either party, the statute must permit modification of postmajority child support orders.

“The terms of § 46b-86 (a) cannot be expanded to include matters beyond the court’s jurisdiction. ‘Any’ does not include all possible or hypothetical orders but only those orders that the court has the power to formulate. The jurisdiction of the Superior Court as it relates to postmajority child support derives solely from § 46b-66. . . . Pursuant to § 46b-66, the court has the limited power to accept, incorporate and enforce a written agreement of child support that extends beyond a child’s age of majority. . . .

“Public Acts 1977, No. 77-488, § 1, had the limited purpose of permitting a contract for the support of adult children to be incorporated into a judgment or order of the court, thereby making such orders enforceable through contempt proceedings, rather than requiring that such a contract be enforced through a separate contract action. . . . The act did not grant the trial court the power to fashion or enforce its own orders concerning postmajority child support. It did grant the court a limited power of veto over the parties’ agreement to provide such support, to be exercised only if the agreement were not ‘fair or equitable.’

“A parent’s obligation to support his or her children exists only until the age of majority. General Statutes § 46b-84. The court cannot, without the consent of both parents, alter a voluntary obligation undertaken by a parent beyond his or her legal obligation. ... To accept the plaintiffs contention that the trial court has jurisdiction to modify postmajority child support agreements pursuant to § 46b-86 would be to conclude that the trial court has greater power during a modification proceeding than it had during the original dissolution proceeding.” (Citations omitted.) Albrecht v. Albrecht, supra, 19 Conn. App. 155-57.

In Hirtle v. Hirtle, supra, 217 Conn. 394, the plaintiff contended that the trial court has the jurisdiction to modify an agreement for postmajority support even where the parties have not agreed in writing to such a modification. The Supreme Court, in upholding the trial court’s determination that § 46b-66 requires such modifications to be written, stated: “Although General Statutes § 46b-86 (a) confers authority upon the Superior Court to modify ‘any final order’ for the payment of support, that authority must be read in conjunction with the jurisdictional limitations imposed by § 46b-66. As the Appellate Court held in Albrecht v. Albrecht, supra, [19 Conn. App.] 155-57, the same jurisdictional rules apply to the incorporation of an order for postmajority support in the original dissolution proceedings as to a subsequent order modifying postmajority support. In both cases, § 46b-66 requires a written agreement of the parties.

“The decision of this court in Barnard v. Barnard, [supra, 214 Conn. 115], does not compel a different conclusion. In that case, the issue was whether, as § 46b-86 (a) expressly permits, the parties had effectively precluded any subsequent modification of post-majority support by the terms of the separation agreement that had been incorporated into the decree dissolving their marriage. In that context, we noted that the postmajority support order could be judicially modified ‘only if the agreement so incorporated does not preclude modification.’ Id., 114. Our repeated citations of Albrecht v. Albrecht, supra, [19 Conn. App. 155-57], indicate that we did not intend to foreclose the consideration of other constraints on the validity of a modification of a postmajority support order. Barnard v. Barnard, supra, 113-14. We therefore concur with the Appellate Court in Albrecht v. Albrecht, supra, [155-57] and with the trial court in this case, that a written agreement is a jurisdictional prerequisite to the valid modification of an order for postmajority support.” Hirtle v. Hirtle, supra, 217 Conn. 400-401.

In this case, the defendant seeks not only to modify his obligation, but to alter the plaintiffs obligation by asking the trial court to reallocate the proportion of expenses to be paid by the plaintiff and the defendant. It is clear from the cases cited that the trial court had no jurisdiction to modify the written agreement incorporated in the dissolution decree as it pertains to post-majority support and education without a written agreement signed by both parties giving the court the authority to modify the agreement or by the parties themselves modifying the agreement.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-66 provides: “In any ease under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.”

       General Statutes § 46b-86 (a) provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9,1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”


text:
    DANIEL C. SETTANI v. COMMISSIONER OF MOTOR VEHICLES
    (AC 16911)
    Lavery, Spear and Healey, Js.
    Argued December 9, 1997
    officially released April 14, 1998

      Norman B. Teague, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

HEALEY, J.

On August 20, 1996, the plaintiff, Daniel C. Settani, was arrested at approximately 1:15 a.m. in Watertown for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. He thereafter submitted to two breath tests administered by the Watertown police. The first breath test was performed at 1:44 a.m. and the second at 2:27 a.m. The results demonstrated a blood alcohol content (BAC) of 0.229 percent and 0.222 percent respectively. On August 23, 1996, the defendant commissioner of motor vehicles notified the plaintiff of the suspension of his motor vehicle operator’s license pursuant to General Statutes § 14-227b for failing a chemical blood alcohol test.

On October 4, 1996, an administrative hearing was held before the commissioner’s hearing officer on this matter; see General Statutes § 14-227b (f) and (g); during which no testimony was offered. The only evidence introduced was documentary in nature. The commissioner introduced the arresting officer’s “DWI Arrest and Alcohol Test Report,” as well as his incident report. The plaintiff introduced a letter written by his expert, James O’Brien, a toxicologist. On October 4, 1996, the hearing officer rendered a decision affirming the suspension of the plaintiffs license. The plaintiff appealed that decision to the Superior Court pursuant to the Uniform Administrative Procedure Act. See General Statutes § 4-166 etseq. On January 15,1997, the Superior Court dismissed the plaintiffs appeal.

In its decision dismissing the appeal, the Superior Court acknowledged the written opinion of O’Brien, whose letter, the court indicated, effectively stated that it is not scientifically possible to determine, from the results of the breath tests, the plaintiffs BAC at the time of operation. The court pointed out that the relevant statutory provisions are contained in § 14-227b, which was amended by No. 93-371 of the 1993 Public Acts and No. 94-189 of the 1994 Public Acts. The court noted that Public Act 93-371 eliminated the statutory requirement that there had to be substantial evidence in the record to support a hearing officer’s finding that the results of postarrest chemical testing could be extrapolated back to the time the plaintiff was operating his motor vehicle. The court also pointed out that Public Act 94-189 eliminated the requirement that the hearing officer make a finding of the level of the operator’s BAC at the time of operation, and allowed the commissioner to suspend the license if the breath tests were administered within two hours of the time of operation and revealed an illegal level at the time of testing.

The Superior Court pointed out that the plaintiff’s appeal was based on the premise that the hearing officer “must still determine that [the plaintiffs BAC] exceeded the legal level at the time [of operation].” That court correctly indicated that that requirement had been eliminated by Public Act 94-189. The Superior Court held that the hearing officer’s finding that the plaintiffs BAC exceeded the legal limit within two hours after operation constituted substantial undisputed evidence and, accordingly, upheld the hearing officer’s decision. The trial court rejected the plaintiffs attacks on the fact-finding process, stating that they had been addressed earlier in such cases as Ramisk v. Commissioner of Motor Vehicles, 45 Conn. App. 924, 696 A.2d 1325, cert. denied, 243 Conn. 923, 701 A.2d 343 (1997).

In his appeal to this court, the plaintiff claims (1) that the trial court acted improperly in dismissing his administrative appeal because the hearing officer misapplied the presumption of § 14-227b (f) to the facts of this case, and (2) that the presumption of § 14-227b is unconstitutional as applied to him because there is no rational connection between the basic facts—the test results—and the presumed fact—that the plaintiff driver had a BAC of 0.10 percent or greater at the time of operation.

The first claim questions the nature and effect of the presumption in § 14-227b (f) and asserts that the hearing officer could not disbelieve the uncontradicted evidence of O’Brien. Therefore, the plaintiff argues, there was no substantial countervailing evidence of the statutorily required finding that his BAC was 0.10 percent or greater at the time of operation. The second claim challenges the rationality of the statutory presumption in light of the particular facts of this case. There, the plaintiff contends: “Specifically, the facts on this record are that [his] test results are essentially similar” and, given the expert evidence of O’Brien, the presumption is irrational and, thus, unconstitutional as applied to him. After a careful consideration of the plaintiffs claims, we are not persuaded.

This court has this day published its opinion in Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 710 A.2d 807 (1998). In that opinion, we decided all of the issues raised by the plaintiffs first claim. We incorporate into this opinion our analysis of those matters as they are set out in Bancroft.

As to this plaintiffs second claim, that the statutory presumption is unconstitutional as applied to him, we must reject it, given our analysis in Bancroft of the nature and effect of that presumption, as well as the right of the hearing officer to disbelieve the defendant’s expert. The plaintiff gains nothing by characterizing the test results as “essentially identical.” Both results were well in excess of the legal BAC of 0.10 percent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court also determined that even if the statute were interpreted to require the hearing officer to extrapolate the results of the testing back to the time of operation, § 14-227b (f) (3) allows the hearing officer to infer the BAC from the results of timely testing.

       It is true that O’Brien stated that it cannot be determined with reasonable scientific certainty whether the plaintiff’s BAC was at or above 0.1 percent at the time of operation because, given the standard error of 5 percent for this intoximeter, the tests are essentially identical. His letter does not say that the plaintiffs test results were below the legal level of 0.10 percent at the time of operation. His report does not say whether or how it is scientifically possible for a person, let alone this plaintiff, to have a BAC of 0.229 percent thirty minutes after operating a motor vehicle without having had a BAC of 0.10 percent or greater at the time of operation. In short, the O’Brien letter could be read as not having rebutted the statutory presumption in the first place.


author: PER CURIAM.

text:
    ZONING INSPECTOR OF THE TOWN OF REDDING ET AL. v. RAYMOND PLUNSKE
    (AC 15312)
    O’Connell, C. J., and Landau and Hennessy, Js.
    Argued March 2
    officially released April 14, 1998

      Nancy Burton, for the appellant (defendant).

      James T. Shearin, with whom, on the brief, was Christian LeBrun, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

This is the defendant’s appeal from the trial court’s judgment issuing an injunction that ordered the defendant to maintain his property in compliance with the zoning laws of the town of Redding. The trial court also imposed a monetary penalty on the defendant and awarded attorney’s fees to the plaintiff.

We have fully reviewed the record and briefs and considered the oral arguments of the parties. The trial court’s findings are supported by the evidence and the inferences that reasonably may be drawn therefrom. Having applied the appropriate standard of review, we conclude that the trial court did not abuse its discretion and that its decision conformed to the applicable law. No novel principles of law or appellate procedure are involved in this case, and to discuss the defendant’s claims at length would serve no useful purpose. See Byrne v. Trice, 170 Conn. 442, 442-43, 365 A.2d 1063 (1976); Benlock v. New Haven Terminal/Cilco Terminal, 48 Conn. App. 250, 706 A.2d 1390 (1998).

The judgment is affirmed.


text:
    BICC BRAND-REX COMPANY v. ARTHUR, HARRIS AND ASSOCIATES, INC.
    (AC 17076)
    O’Connell, C. X, and Foti and Landau, Js.
    Argued March 4
    officially released April 14, 1998

      David R. Scott, for the appellant (plaintiff).

      Stuart G. Blackburn, for the appellee (defendant).
   Opinion

PER CURIAM.

This appeal implicates Connecticut’s corporate long arm service of process statute. General Statutes § 33-929 (f) (1). The dispositive issue in this case is whether the contract between the parties was to be substantially performed in this state. The trial court found as a fact that the contract was to be substantially performed outside Connecticut. That factual finding was supported by the evidence and, thus, cannot be overturned by this court. See Cromwell Commons Associates v. Koziura, 21 Conn. App. 1, 5, 570 A.2d 1131 (1990).

The judgment is affirmed.


author: SULLIVAN, J.

text:
    DOUGLAS L. DORTENZIO v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 16707)
    Landau, Sullivan and Daly, Js.

      Argued January 13
    officially released April 14, 1998

      Janis M. Small, town attorney, for the appellee (plaintiff).

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

      Maureen M. Murphy, for the appellee (defendant Douglas J. Fairchild).

      Jeffrey F. Gostyla filed a brief for the Connecticut Police Chiefs Association as amicus curiae.
   Opinion

SULLIVAN, J.

The plaintiff, Douglas L. Dortenzio, chief of police for the town of Wallingford, appeals from the judgment of the trial court dismissing his appeal from the decision of the freedom of information commission. The plaintiff claims that the trial court improperly determined that a predisciplinary conference conducted by the plaintiff was a “hearing or other proceeding” under General Statutes § l-18a (b) and, therefore, subject to the open meeting requirements of General Statutes §§ 1-21 (a) and l-21a (a). We agree and reverse the judgment of the trial court.

The following facts and lengthy procedural history of this case are undisputed. The plaintiff is the chief of police of the Wallingford police department and, as such, is the head of that department. No independent police commission exists in Wallingford as exist in other Connecticut municipalities. The Wallingford charter vests in the plaintiff, as department head, responsibility for “the efficiency, discipline and good conduct of the department . . . .” The defendant commission is a Connecticut state agency empowered to investigate alleged violations by public agencies of the Freedom of Information Act (FOIA), General Statutes § l-18a et seq. Douglas Fairchild, also a defendant in this action, is employed as a police officer for the Wallingford police department.

On July 30, 1993, the plaintiff notified Fairchild that he was to attend apredisciplinary conference on August 24,1993, concerning his work performance. Allegations relating to Fairchild’s work performance had been investigated by Lieutenant Peter Cameron, Fairchild’s supervisor. Cameron reported the results of the investigation to Deputy Chief Darrell E. York, who found deficiencies in Fairchild’s work performance and referred the matter to the plaintiff with a recommendation for disciplinary action.

By letter to the plaintiff dated August 16, 1993, Fair-child requested that the predisciplinary conference be open to the public and that it be either videotaped or audiotaped. He also requested that he be permitted to introduce evidence and present witnesses on his behalf. The plaintiff sent Fairchild a letter in response that essentially denied these requests. The letter stated that the format of the conference had been “agreed to and practiced by both the Town and Union . . . .” The conference took place on August 24, 1993. Thereafter, by letter dated September 1, 1993, the plaintiff informed Fairchild that he was to be disciplined by an unpaid suspension for three days, during which time his police powers were to be suspended and his service weapon, departmental badge and identification card surrendered.

On September 2, 1993, Fairchild filed a complaint with the commission, claiming that the plaintiff violated the FOIA when he refused to open the conference to the public and refused to permit the conference to be tape recorded. At a hearing before a commissioner on November 18, 1993, Fairchild argued that the predisci-plinary conference was a “meeting” under § l-18a (b) and, as such, it should have been open to the public pursuant to § 1-21 (a) and he should have been able to tape-record the conference pursuant to § l-21a (a). Fairchild asserted that the conference was a meeting under § l-18a (b) because it was a “hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. . . .’’General Statutes § l-18a (b). Fairchild requested that the action taken at the August 24, 1993 conference be declared “null and void,” and that future disciplinary conferences before the plaintiff be considered meetings within the purview of § l-18a (b). See Dortenzio v. Freedom of Information Commission, 42 Conn. App. 402, 405, 679 A.2d 978 (1996).

At the hearing before the commissioner, the plaintiff claimed that the predisciplinary conference was not a meeting under § l-18a (b). He argued that the conference fell within an exception to the definition of a meeting under the statute for “administrative or staff meeting[s] of a single-member public agency . . . .” General Statutes § l-18a (b).

The commission adopted the final decision of the hearing commissioner, who concluded that the plaintiff violated §§ 1-21 (a) and l-21a (a). The commission found that the predisciplinary conference constituted a “proceeding of a public agency,” namely the Wall-ingford police department, and therefore it was within the definition of a meeting under § l-18a (b). The commission refused to declare the August 24, 1993 meeting null and void, but ordered the plaintiff to comply with §§ 1-21 (a) and l-21a (a) in the future. See Dortenzio v. Freedom of Information Commission, supra, 42 Conn. App. 406.

The plaintiff appealed the commission’s decision to the Superior Court, which sustained the appeal. The court, Maloney, J., found that the predisciplinary conference was part of the grievance procedure established by the collective bargaining agreement between the town and the police union. Id., 406. Accordingly, the court determined that the conference was not a meeting as that term is defined in § l-18a (b) and therefore was not subject to the requirement of § 1-21 (a) that meetings be open to the public. Id. The court also noted that predisciplinary conferences such as the one in this case could be held in private by agreement of the parties under provisions in the FOIA for “executive sessions.”

The commission and Fairchild appealed to this court from the decision of the trial court. We reversed the judgment of the trial court on the ground that the court improperly substituted its judgment for that of the commission. Id., 409. It was evident from the trial court’s memorandum of decision that the court was persuaded by the plaintiffs argument that the conference was not a meeting pursuant to § l-18a (b) because it fell within an exception under § l-18a for “strategy or negotiations with respect to collective bargaining,” although that issue was never raised before the commission. Id., 406. Thus, we found that the trial court “failed to confine its review of the [commission’s] decision to the issues raised and the findings in the administrative record.” Id., 407. Accordingly, we remanded the case with direction to the trial court to apply the proper standard of review.

On December 2, 1996, the trial court, McWeeny, J., issued a memorandum of decision dismissing the plaintiff’s appeal. The court determined that the predisciplin-ary conference was a proceeding of the police department under § l-18a (b) and did not fall within any of the exceptions to the definition of a meeting, as claimed by the plaintiff. The court stated that the conference was a constitutionally mandated hearing under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). It is from that decision that the plaintiff now appeals.

We first set out our standard of review. Judicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 448, 705 A.2d 1012 (1997). “When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA]. . . . We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.” (Internal quotation marks omitted.) Nelseco Navigation Co. v. Dept. of Liquor Control, 34 Conn. App. 352, 355, 641 A.2d 827 (1994); Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5 (court may reverse or modify decision of trial court if it determines decision erroneous in law).

“The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation, which, upon review under the UAPA, ordinarily presents a question of law.” Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 225, 497 A.2d 1005 (1985). “Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) State Board of Labor Relations v. Freedom of Information Commission, 43 Conn. App. 133, 137, 682 A.2d 1068 (1996), aff'd, 244 Conn. 487, 709 A.2d 1129 (1998). “Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of [our Supreme Court] to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Internal quotation marks omitted.) Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. 449. “An exception is that when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Internal quotation marks omitted.) Id.

With these principles in mind, we now consider whether the trial court properly dismissed the plaintiffs appeal. Specifically, we must determine whether, in light of our deference to the commission in interpreting the FOIA, the trial court properly concluded that the predisciplinary conference was a meeting under § 1-18a (b) and was, therefore, subject to the open meeting requirements of §§ 1-21 (a) and l-21a (a).

“Section 1-21 requires that all public agency meetings, with the exception of executive sessions, be open to the public, and that such meetings be properly noticed.” Waterbury Teachers Assn. v. Freedom of Information Commission, 42 Conn. App. 700, 706, 682 A.2d 125 (1996), rev’d on other grounds, 240 Conn. 835, 694 A.2d 1241 (1997). Under § l-18a (b), a meeting is defined as “any hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.” Section l-18a (b), however, excludes from the definition of meeting “an administrative or staff meeting of a single-member public agency.” Thus, resolution of this appeal requires us to determine whether the predisciplinary conference was a meeting under the FOIA or whether it fits within this statutory exception, as claimed by the plaintiff.

In rendering its decision, the trial court found that the predisciplinary conference afforded to Fairchild was constitutionally mandated under Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532. The court apparently reasoned that because the conference met the procedural due process requirements for a hearing espoused in Loudermill, the conference could not be an administrative or staff meeting under § l-18a (b).

In Loudermill, the United States Supreme Court considered “what pretermination process must be accorded a public employee who can be discharged only for cause.” Id., 535. Loudermill, who was discharged from his position as a security guard for dishonesty in filling out an employment application, argued that his federal constitutional right to due process was violated because he was not afforded an opportunity to respond to the charges against him prior to his discharge. It was undisputed in Loudermill that the employee had a property right in his continued employment created by an Ohio statute that provided that classified civil service employees could not be dismissed except for cause. See Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) (property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law”); Hunt v. Prior, 236 Conn. 421, 437, 673 A.2d 514 (1996) (same). Accordingly, the state could not deprive Loudermill of this property interest without due process.

The Loudermill court stated, “We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ Boddie v. Connecticut, 401 U.S. 371, 379 [91 S. Ct. 780, 28 L. Ed. 2d 113] (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542 [91 S. Ct. 1586, 29 L. Ed. 2d 90] (1971). This principle requires ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Cleveland Board of Education v. Loudermill, supra, 470 U.S. 542. The court stated further that “the pretermination hearing, though necessary, need not be elaborate. We have pointed out that [t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. ... In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action.” (Citations omitted; internal quotation marks omitted.) Id., 545. The court concluded that “[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id., 546; see Bartlett v. Krause, 209 Conn. 352, 380-81, 551 A.2d 710 (1988).

It is evident that the trial court determined that under the facts of this case, Fairchild was entitled to, and did receive, a hearing consistent with due process under Loudermill. It does not necessarily follow, however, that the predisciplinary conference, while procedurally sufficient under Loudermill, was also required to be open to the public under the FOIA. Loudermill does not address the public nature of a pretermination hearing. Thus, irrespective of the application of Loudermill to the facts of this case, the issue we must determine here is whether the predisciplinary conference was a hearing or other proceeding for purposes of the FOIA.

Under the canons of statutory construction, the language of a statute will be given its common, generally understood meaning. Furhman v. Freedom of Information Commission, 243 Conn. 427, 434, 703 A.2d 624 (1997), citing General Statutes § 1-1 (a). Black’s Law Dictionary defines a hearing as “[a] proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented.” Black’s Law Dictionary (6th Ed. 1990). Our Supreme Court has stated that “[a] hearing can be a proceeding in the nature of a trial with the presentation of evidence, it can be merely for the purpose of presenting arguments, or, of course, it can be a combination of the two. . . . Not only does a hearing normally connote an adversarial setting, but usually it can be said that it is any oral proceeding before a tribunal. . . . Our cases consistently recognize the generally adversarial nature of a proceeding considered a ‘hearing,’ in which witnesses are heard and testimony is taken. . . . Clearly, the legislature also contemplated that, for purposes of the UAPA, a hearing would be a proceeding of this nature.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 469-70, 378 A.2d 547 (1977).

The formalities typically associated with a hearing or proceeding were notably absent from the predisci-plinary conference. No witnesses testified at the conference, and neither Fairchild nor the union officers who represented him chose to comment on the investigation and charges, although they had the opportunity to do so. Our Supreme Court has “required a public hearing during the evidentiary portions of hearings held to evaluate the job performance of a public employee” in circumstances arising under the executive session provision of § l-18a (e) (l).* ***** (Emphasis added.) Waterbury Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 844, 694 A.2d 1241 (1997), citing Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190, 470 A.2d 1209 (1984). That, however, was not the case here. The predisciplinary conference at issue here lacked the characteristic elements of a hearing for purposes of qualifying for the open meeting requirements of the FOIA.

In rendering its decision, the trial court concluded that the conference did not fit within the statutoiy exception to the definition of a meeting for “an administrative or staff meeting of a single-member public agency” because the conference was held for the specific purpose of effectuating discipline and not for a general administrative purpose. As argued by the plaintiff, however, the discipline and supervision of employees is an administrative function of the chief of police as conferred by the Wallingford charter. While our inquiry into the scope of a statutory exclusion under § l-18a (b) “must commence with the recognition of the legislature’s general commitment to open governmental proceedings”; Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 711-12, 663 A.2d 349 (1995); the conference at issue here related to the management and administration of internal police affairs and, thus, was exempt from the requirement of public disclosure under the FOIA.

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

In this opinion the other judges concurred.

       General Statutes § l-18a provides in relevant part: “As used in this chapter, the following words and phrases shall have the following meanings, except where such terms are used in a context which clearly indicates the contrary . . .
      “(b) ‘Meeting’ means any hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include ... an administrative or staff meeting of a single-member public agency

       General Statutes § 1-21 (a) provides in relevant part: “The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. . . .”

       General Statutes § l-21a (a) provides in relevant part: “At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-21, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting . . . .”

       See footnote 7.

       We note that the administrative action at issue in Loudermill was the termination of an employee who had a property interest in his continued employment under Ohio la.w and that the action at issue in this case is a disciplinary suspension without pay. We need not decide whether Fairchild had a property interest in his employment and to what extent it was affected by the suspension since Fairchild makes no federal constitutional due process claim in this appeal. See Bartlett, v. Krause, supra, 209 Conn. 378 (noting difference between termination as “grave sanction of outright severance” and “temporary suspension” in assessing need for procedural safeguards guaranteed by due process); Geren v. Board of Education, 36 Conn. App. 282, 291, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995) (liberty interest under due process clause impaired when employee suspended from employment in manner that might damage his standing in community or might impose on him stigma or disability foreclosing his freedom to take advantage of other employment opportunities); Honis v. Cohen, 18 Conn. App. 80, 84-85, 556 A.2d 1028 (1989) (personnel decisions do not constitute deprivation of property interest unless termination of employment involved).

       The procedure for disciplinary action against a police officer is specified in an agreement between the town of Wallingford and the local police union. Section 1 of the agreement, regarding discipline and discharge, states that “[p]rior to the issuance of discipline, the Chief of Police and/or the Director of Personnel shall hold a conference with the officer facing potential discipline, at which the officer shall be provided the opportunity to be represented by the Union and to hear and respond to the charges against him. The officer and the Union shall be notified of the disposition of the Chief and/or director of Personnel within a reasonable time.” Section 2 states that “[t]he UNION shall have the right to question the propriety of any such disciplinary action or discharge through the grievance procedure herein outlined, including arbitration . . . .” Thus, Fairchild was entitled to a formal hearing through the grievance process.

       General Statutes § l-18a (e) provides in relevant part: “ ‘Executive sessions’ means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting . . . .”