author: LAVERY, C. J. LANDAU, J.,

text:
    STATE OF CONNECTICUT v. AFSCME, COUNCIL 4, LOCAL 2663, AFL-CIO
    (AC 19209)
    Laveiy, C. J., and Landau and Hennessy, Js.

      Argued May 31
    officially released September 12, 2000

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

      Beth Z. Margulies, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, AFSCME, Council 4, Local 2663, AFL-CIO, appeals from the judgment of the trial court vacating an arbitrator’s award that ordered the reinstatement of a union member who had been dismissed from his position as a driver of children for the department of children and families (department). The defendant contends that the union member should be reinstated because the court improperly vacated the arbitration award on the ground that it is violative of public policy. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The grievant, William Unwin, was hired by the department on March 17, 1995, as a social services assistant. His work required him to drive children entrusted to the care or custody of the department.

On January 21, 1994, police, pursuant to a search warrant, searched Unwin’s home and found illegal drugs. He subsequently was arrested, and on February 7, 1996, pleaded guilty to felony charges of possession of marijuana with intent to sell in violation of General Statutes § 2 la-277 (b) and possession of cocaine with intent to sell in violation of General Statutes § 21a-278 (b). Unwin received a seven year suspended sentence with three years of probation. He informed the department of his conviction in April, 1996. The state discharged him on July 29, 1996, in light of the conviction, on the ground that it had just cause to do so.

The defendant submitted to arbitration a grievance on Unwin’s behalf. The issues at arbitration were whether Unwin properly was fired for just cause and, if not, what the remedy should be consistent with the governing collective bargaining agreement. An arbitration hearing was held on July 2,1997. On August 11,1997, the arbitrator issued an award reducing the dismissal “to a suspension to end with his first day of work, following receipt of this award.” The plaintiff sought to have the trial court vacate the arbitrator’s award. On February 23, 1999, the court vacated the award, and the defendant thereafter appealed.

1

The defendant contends that Unwin should be reinstated because the court improperly vacated the arbitration award as violative of public policy. We disagree.

The standard of review relative to arbitration awards depends on the nature of the challenge. With a voluntary, unrestricted submission to an arbitrator, as is the case before us, the court “may only examine the submission and the award to determine whether the award conforms to the submission.” (Internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 814, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions inyolved, but is bound by the arbitrator’s legal and factual determinations. Game-A-Tron Corp. v. Gordon, 2 Conn. App. 692, 695, 483 A.2d 620 (1984).

Certain conditions do exist, however, under which we conduct a more searching review of arbitral awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), our Supreme Court reiterated that there are three grounds for vacating an award when the submission is unrestricted. These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy or (3) contravenes one or more of the statutory proscriptions of General Statutes § 52-418. Our discussion focuses on the second prong.

The proper standard of review for examining whether an arbitral decision violates a clear public policy was recently articulated in Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000), in which our Supreme Court stated: “Where there is no clearly established public policy against which to measure the propriety of the arbitrator’s award, there is no public policy ground for vacatur. If, on the other hand, it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy. We conclude that where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.”

Schoonmaker also cautions that the question of whether apublic policy issue is in fact implicated should not be brushed aside. The court stated: “We emphasize, however, that a party raising such a challenge to an arbitral award may not succeed in receiving de novo review merely by labeling its challenge as falling within the public policy exception to the normal rule of deference. The substance, not the form, of the challenge will govern. Thus, the court should not afford de novo review of the award without first determining that the challenge truly raises a legitimate and colorable claim of violation of public policy. If it does raise such a claim, de novo review should be afforded. If it does not, however, the normal deferential scope of review should apply.” Id., n.7.

We interpret Schoonmaker to require a two-step analysis in cases such as this one in which a party raises the issue of a violation of public policy in a arbitral award. First, we must determine whether a clear public policy can be identified. Second, if a clear public policy can be identified, we must then address the ultimate question of whether the award itself conforms with that policy.

A

We first determine whether a clear public policy is implicated in this case. “A public policy challenge to an arbitration award is rooted in the principle that the parties cannot expect 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.” (Internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 813. “Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Internal quotation marks omitted.) Groton v. United Steelworkers of America, 252 Conn. 508, 519-20, 747 A.2d 1045 (2000).

The public policy that must be considered, as stated by the trial court in its memorandum of decision, is “the policy against [the department] employing persons on probation, following a conviction for felony drug offenses, including possession with intent to sell, to drive children in its care and custody.” In essence, we must consider whether providing a safe and nurturing environment for children under the department’s care is a clear public policy. We agree with the court’s conclusion that ample sources exist that clearly show that the protection of children, particularly those in the department’s care, is a clear, well-defined, dominant and compelling public policy of this state.

That the protection and nurturing of children is an important public policy is almost too obvious for discussion. General Statutes § 17a-101 (a) provides without equivocation: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect [and] ... to provide a temporary or permanent nurturing and safe environment for children when necessary . . . .” This policy has been extensively cited in our case law. E.g., In re Eden F., 250 Conn. 674, 692 n.20, 741 A.2d 873 (1999). Indeed, the best interests of children are the fundamental underpinning of whole areas of law. E.g., General Statutes § 45a-706 (rule of construction that various parental termination and adoption provisions shall be construed in best interest of any child for whom petition is filed under said sections); In re Eden F., supra, 689 (best interest of child always paramount consideration and usually dictates outcome in custody proceedings).

We need not belabor this point further. “[T]he continuing welfare of the child is a matter of legitimate state interest.” In re Juvenile Appeal (85-3), 3 Conn. App. 194, 198, 485 A.2d 1369, cert. denied, 196 Conn. 801, 491 A.2d 1105 (1985). The protection of children from harm, the underlying public policy in this case, is well settled and dominates our jurisprudence. The department has statutorily based obligations to maintain and support children under its care that must be followed. Accordingly, we conclude that the protection of children, with specific reference to the department, is a clear public policy of this state.

B

Since a clear public policy can be identified, we must address the ultimate question of whether the arbitration award itself comports with that policy. We conclude that the arbitration award of reinstatement to Unwin conflicts with the clear public policy of protecting the children of our state.

The department has special statutory duties that must be fulfilled. For example, General Statutes § 17a-98 requires that the commissioner of children and families (commissioner) “exercise careful supervision of each child under [her] guardianship or care . . . as is necessary to promote the child’s safety and his physical, educational, moral and emotional development . . . .” Department employees are responsible for the health, welfare and care of children under their supervision. General Statutes § 17a-93 (£).

Our case law notes a similar focus for the department. “The primary concern of [the department] is the safety of [the child], . . . Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings. ... In re Christine F., 6 Conn. App. 360, 368, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986); see also In re Juvenile Appeal (85-BC), 195 Conn. 344, 352, 488 A.2d 790 (1985) (established public policy of state is to protect children); State v. Anonymous, [179 Conn. 155, 171, 425 A.2d 939 (1979)] (same).” (Internal quotation marks omitted.) In re Shane P., 58 Conn. App. 244, 258-59, 754 A.2d 169 (2000).

We also examine the nature of the infraction committed by the grievant. Unwin was convicted of two counts of possession of narcotics (marijuana and cocaine) with intent to sell. The statutes making possession of drugs with intent to sell a felony, §§ 21a-277 (b) and 21a-278 (b), are evidence of a clear intent to safeguard the public from individuals intending to sell drugs. This interest in protecting the public is even greater when applied to children. See State v. Rao, 171 Conn. 600, 610, 370 A.2d 1310 (1976) (Bogdanski, J., concurring). For example, General Statutes §§ 2 la-278 and 21-279 specifically prohibit drug offenses against, or even in the proximity of, children. Section 21a-278a (a) imposes an additional penalty on an adult convicted of selling controlled substances to a minor.

The strong public policy against exposing children to individuals such as Unwin, who have been convicted of crimes relating to drug sales, also exists in areas within the purview of the department. General Statutes § 17a-90 (a) establishes that the commissioner “shall have general supervision over the welfare of children who require the care and protection of the state.” With this responsibility comes specific duties. For example, under General Statutes § 17a-114 (b), a child cannot be placed temporarily with a relative unless that relative “attests that he and any adult living within the household have not been convicted of a crime or arrested for a felony against a person, for injury or risk of injury to or impairing the morals of a child, or for the possession, use or sale of a controlled substance . . . .” General Statutes § 17a-115 authorizes the commissioner to obtain arrest records of persons charged with the use or sale of any controlled substance prior to issuing a license or certification to any person for the care of a child under certain statutes.

The fact that Unwin’s criminal activity occurred outside the workplace merits discussion. In State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 747 A.2d 480 (2000), Justice Peters authored a concurring opinion noting the distinction between activities inside and outside the workplace. Justice Peters commented on the case before her, stating that “[t]he fact that [the] egregious misconduct [in AFSCME, Council 4, Local 387, AFL-CIO] concededly occurred while the employee was on the job distinguishes it from other cases of employee misconduct in which courts have upheld arbitral awards that reduced sanctions against employees from discharge to suspension. See, e.g., United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29,108 S. Ct. 364, 98 L. Ed. 2d 286 (1987); Bureau of Special Investigations v. Coalition of Public Safety, 430 Mass. 601, 722 N.E.2d 441 (2000); New York State Correctional Officers & Police Benevolent Assn., Inc. v. New York, 94 N.Y.2d 321, 726 N.E.2d 462, 704 N.Y.S.2d 910 (1999) (all involving employee misconduct outside of work).” State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 479 (Peters, J., concurring in the result).

In this case, we cannot accept the full implications of the reasoning of that concurrence, that is, that the commission of illegal activity inside or outside of work is a dispositive factor for determining the presence or absence of a public policy, especially the state’s clear public policy on children.

The trial court properly responded to a similar concern raised by the defendant. In its memorandum of decision, the court stated: “[The] defendant asserts that off-duty conduct, given the circumstances of this case, cannot properly form the basis for a finding that public policy has been violated. The court cannot agree. By the same curious logic, someone convicted of assaulting children in their bedroom could work for [the department], driving children in its care and custody, and could be terminated only if [he or she] actually assaulted a child entrusted to [the department] while transporting [the child]. Persons engaged in the sale of drugs often fail to make tidy legal distinctions concerning where they engage in their illegal conduct and who they consort with. The court believes that where the well-being of children is involved, a more practical and nuanced approach is required than a simple analysis of where objectionable conduct has occurred.”

We agree with the trial court. Improper conduct in an employee’s personal life can have various effects on the employee’s workplace. We consider in cases such as these the nature of the improper act, its severity and the kind of the work the employee performs. The improper acts committed by Unwin were serious felonies that involved more than possession of illegal drugs; they involved an intent to sell them. The illegal acts were not a mere shadow looming from Unwin’s distant past. Rather, his guilty plea occurred concurrently with his employment at the department. Finally, Unwin’s job required contact with one of the most vulnerable segments of our population—children—who, because of family and other problems, had become involved with the department. Indeed, it may have been drug use by the children’s parents that landed them in the custody of the department in the first instance. In sum, Unwin committed a criminal act of a severe nature, quite recently, which had a direct negative bearing on the children under his charge. Accordingly, the fact that Unwin’s criminal conduct took place outside of working hours does not mitigate the violation of public policy that occurred through his reinstatement.

Indeed, Unwin, a felon twice convicted for possession of narcotics (cocaine and marijuana) with intent to sell, is the embodiment of the very kind of person that the department hopes to protect children from. At the very least, the department seeks to provide children in its care with better conditions than those to which they would be exposed without the department’s intervention. The presence of an individual convicted of two counts of possession of narcotics with intent to sell would create an opposite result in that children would be exposed to precisely the type of individual, influences and behavior from which the department is charged with protecting them.

We also note with disfavor the lack of forthrightness Unwin showed to the department. While Unwin was employed with the department as a driver, he elected not to disclose his drug arrest to the department. This conduct contravenes the policy the state maintains in the closely analogous context of school bus drivers, which requires all such drivers to notify their employers of any arrest for a drug offense. Regs., Conn. State Agencies § 14-275c-50. Furthermore, Unwin let a two to three month delay occur between his guilty plea on February 7,1996, and his reporting of his conviction to the department in April, 1996. See id.

Our decision does not cast aside the legislative interest favoring rehabilitation of criminal offenders and their obtaining meaningful employment in society. See General Statutes § 46a-79; State v. Parker, 194 Conn. 650, 663, 485 A.2d 139 (1984) (Healey, J., dissenting). We endorse the concept of rehabilitation of criminal offenders as a meaningful goal. The severity of Unwin’s crimes, however, combined with the responsibility for children that is called for in his former position as a driver, more than countervail any rehabilitative interest society has in Unwin.

“It is indisputable that protecting the physical and psychological well-being of children is a compelling, as well as legitimate, state interest. ... A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens . . . .” (Citation omitted; internal quotation marks omitted.) In re Shane P., supra, 58 Conn. App. 260. Common sense commands that it is utterly inappropriate to place potentially troubled children in daily contact with a convicted drug offender. An arbitrator’s award that undermines the department’s responsibility to protect children in such a dramatic way violates a compelling public policy, and we will not allow it to stand.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

LANDAU, J.,

dissenting. I agree with the majority that there is an explicit, well defined and dominant public policy in this jurisdiction for the department of children and families (department) to provide a wide range of services to children in need of them. See General Statutes § 17a-3. I do not agree, however, on the facts before this court, that an arbitration award reinstating the giievant to his position as a driver for the department violates that explicit public policy and that the award should be vacated pursuant to General Statutes § 52-418 (a) (4). Consequently, I dissent because (1) the trial court did not have the factual predicate necessary to conclude that the grievant supervised children in the custody of the department and that the department had a policy against employing individuals as drivers of children in its custody when those individuals have been convicted of possession of drugs with intent to sell, (2) there is no clear and explicit public policy that prohibits the state from employing individuals to provide services to the department when those individuals have been convicted of drug offenses and (3) the majority did not balance adequately the countervailing public policy concerning the rehabilitation of convicted felons, especially those who have paid their debt to society, against the public policy that the department serves.

■ Noting that the trial court and this court are bound by the facts found by the arbitrator; Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979);1 begin with a review of the facts found by the arbitrator, some of which the majority overlooks. The sequence of events is particularly noteworthy. On January 21, 1994, the residence the grievant shared with another man was searched, and narcotics were found on the premises. The state hired the grievant to be a social services assistant with the department on March 17, 1995. A warrant for the grievant’s arrest was issued on April 11, 1995, and served on December 4, 1995. On February 7, 1996, the grievant pleaded guilty to two charges of possession with intent to deliver and received a seven year suspended sentence with three years of probation. The grievant told his employer of his sentence in April, 1996. On July 29, 1996, the state discharged him.

The arbitrator also found that because the grievant was assigned to drive children whose parents may have been drug addicts, the state concluded that it could not retain the services of the grievant in view of his felony conviction of two counts of possession of narcotics with intent to distribute. The state does have a policy of furloughing employees who report that they have a drug problem, but it was the grievant’s conviction of intent to deliver drugs that was of paramount importance to the state. The state ignored a genuinely laudatory letter from the grievant’s immediate supervisor covering more than one year of employment. The state’s contact with the police and the grievant’s probationary officer was superficial. The grievant was willing to submit to drug testing.

In its memorandum of decision, the court stated that the grievant was employed by the state to drive children entrusted to the care or custody of the department, but “[t]he circumstances of such driving, e.g., location, duration, collateral duties, age and numbers of children, time involved, [were] not part of the record.” The record also contains no facts as to whether the grievant, himself, abused drugs. It also does not cite rules or regulations of the department relevant to employees convicted of drug offenses.

I

By its ruling, I believe the majority has carried us too far down the road. Under the facts of this case and the conclusion reached by the majority, anyone convicted of a drug offense is prohibited from providing services for the department regardless of that person’s duties. As previously discussed, the trial court did not know the circumstances of the grievant’s driving of children entrusted to the department. The majority recognizes this limitation in the record at footnote 1 of its opinion. Regardless of this limitation, the majority reaches the conclusion, unsupported by the record, that the grievant supervised those children. See footnote 6 of the majority opinion.

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 708, 700 A.2d 1179 (1997). The fact of the matter here is that the trial court and this court do not know whether the grievant supervised children or merely transported them from point A to point B while the children were supervised by someone else. We do not know whether the grievant was ever the sole department employee with the children at any particular time.

Furthermore, the majority impermissibly speculates about the grievant’s behavior on the basis of commonly held assumptions about and stereotypes of individuals convicted of possession of illegal drugs with intent to distribute. See footnote 3 of the majority opinion. At footnote 6, the majority attempts to distinguish a Superior Court case in which an off-duty school custodian was convicted of possession of cocaine within 1500 feet of a school because a custodian does not supervise schoolchildren. See Norwalk Board of Education v. AFSCME, Council 4, Local 1042, AFL-CIO, Superior Court, judicial district of Stamford-Norwaik, Docket No. 161740 (March 19, 1998). Here, we do not know whether the grievant supervised children.

I also note significantly that in that case, the Norwalk board of education had specifically articulated a written policy for its employees on the possession and use of drugs on school property or while on school business away from school property. Here, the record does not contain and the department has not referred to any written policy or regulation concerning employee drug use or possession. That fact also distinguishes this case from State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 470-71 n.7, 747 A.2d 480 (2000), in which our Supreme Court cited at least ten department level directives concerning employee conduct and behavior, which the grievant in that case had violated.

II

Second, I conclude that there is no clear and explicit public policy that prohibits the department from using the grievant’s services. The broad brush that the majority uses to depict a public policy to protect and nurture children in this instance is the same one that paints motherhood and apple pie. They are, however, only “general considerations of supposed public interests.” Groton v. United Steelworkers of America, 252 Conn. 508, 520, 747 A.2d 1045 (2000). No one can disagree that taking care of innocent children is a worthy public effort. That public interest is, however, not sufficiently narrow to apply to the circumstances of this case, as we know them.

Despite “the general rule that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418 (a) (4) when the award rendered is claimed to be in contravention of public policy.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 474. “Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the board’s award clearly violates an established public policy mandate. . . . Watertown Police Union Local 541 v. Watertown, [210 Conn. 333, [340], 555 A.2d 406 (1989)].” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 475.

In part IA of its opinion, the majority acknowledges that under Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 426, 747 A.2d 1017 (2000), we must determine, as a matter of law, whether the public policy found by the trial court clearly exists. The trial court concluded that “there exists a well-defined and dominant policy prohibiting [the department] from employing persons convicted of felony drug charges of possession with intent to sell, and who are on probation, from driving children who are in the care and custody of [the department].” The majority quotes this conclusion and in its next sentence states, “In essence, we must consider whether providing a safe and nurturing environment for children under the department’s care is a clear public policy.” I regret that I cannot find a logical path between the trial court’s conclusion and the task the majority sets before this court.

The majority cites numerous statutes and some common law in support of its effort to find that providing a safe and nurturing environment is a public policy in this jurisdiction. I concede that this state has a general policy to protect our children, but that general policy is manifested in a variety of specific laws and regulations. The majority traverses some of those legal manifestations to find a specific public policy applicable to the situation at hand, but does not cite one statute or case or regulation that stands for the proposition that, as a matter of public policy, an individual convicted of possession of drugs with an intent to distribute cannot provide transportation for children in the department’s care.

I cannot, given the sequence of events here, say that the department has, in fact, a clear, well-defined drug policy with respect to its employees. The grievant’s offending conduct occurred in January, 1994. The defendant was employed to provide services within the department in March, 1995. If the department has a clear policy not to hire individuals with a history involving illegal drugs to drive children, what evidence is there that the department screens potential employees for that fact? The defendant was convicted in February, 1996, and he voluntarily informed the department of that fact in April, 1996, when his probation officer advised him to do so. The majority rebukes the grievant for waiting two months to inform the department but overlooks the fact that the department waited almost four months to discharge the grievant. It is not at all clear to me that the department had a relevant employment policy, let alone knew of a specific public policy, prior to terminating the grievant.

In its brief, the state relies on the facts in State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 467. That case, however, does not provide the state with solid legal footing. In that case, our Supreme Court stated that “[w]e do not hold that the violation of a criminal statute is a per se public policy violation sufficient to justify vacating an arbitrator’s decision. Instead, we conclude that this case poses a narrow, blatant example of the department of correction’s proper exercise of its power to dismiss. Although the conduct demonstrated by [the grievant] is particularly offensive to an enlightened society, our decision here is dictated not by personal standards of decency, but by proper legal precedent that does provide, in this case, the just outcome.” Id., 477-78.

For these reasons, I conclude that a clear public policy prohibiting the department from employing a person convicted of a felony drug charge did not exist when the grievant was discharged.

Ill

I need not spend much time on the last of my reasons for dissenting from the majority’s opinion. I dissent, in part, because the countervailing public policy concerning the rehabilitation of criminals was not given the lengthy and detailed analysis it needs under the circumstances of this case. Our legislature has enacted a law declaring that society is best protected when criminals are rehabilitated and returned to society. Employers are encouraged to consider favorably qualified individuals, including those with a criminal past. See General Statutes § 46a-79. “ ‘[R]etribution is no longer the dominant objective of the criminal law’ and . . . ‘[reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.’ Williams v. New York, 337 U.S. 241, 248, 69 S. Ct. 1079, 93 L. Ed. 1337, reh. denied, 337 U.S. 961, 69 S. Ct. 1529, 93 L. Ed. 1760 (1949).” State v. Corchado, 200 Conn. 453, 463, 512 A.2d 183 (1986); see also State v. Wilson, 242 Conn. 605, 641, 700 A.2d 633 (1997) (Katz, J., concurring) (three asserted purposes of criminal law are rehabilitation, deterrence, retribution); State v. McDowell, 242 Conn. 648, 653, 699 A.2d 987 (1997) (“probation seeks ‘to normalize the probationer into society as soon as reasonably possible”); State v. Guckian, 226 Conn. 191, 200, 627 A.2d 407 (1993) (legislature sought to provide drug rehabilitation system for people coming into criminal justice system); State v. Groos, 110 Conn. 403, 412, 148 A. 350 (1930) (board of parole has power to modulate punishment to bring about protection of society and rehabilitation of offender). I believe that this court has an obligation to balance thoroughly competing public policies when determining whether an arbitration award so violates a specific public policy to warrant our vacating the award pursuant to § 52-418 (a) (4).

For these reasons, I respectfully dissent.

       The court staled that, the circumstances of Unwin’s driving, such as location, duration, age and numbers of children involved, time involved and other collateral duties, were not part, of the record.

       Indeed, our Supreme Court, discussing in dicta in Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. 434-35 n.11, an example of a legitimate public policy, highlighted an interest in protecting children similar to that in the matter before us. The court examined with approval a New Jersey Supreme Court case ihat “accepted a non-delegable, special supervisory function in [the] area of child support that warrants de novo review whenever an arbitrator’s award of child support could adversely affect the substantial best interests of the child.” (Internal quotation marks omitted.) Id., 434 n.11, citing Faherty v. Faherty, 97 N.J. 99, 109, 477 A.2d 1257 (1984). The court drew support from Faherty “for the principle that a heightened standard of review is appropriate, at least in certain instances, when an arbitration award implicates a legitimate public policy.” Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 434-35 n.11. The court also cited with approval Miller v. Miller, 423 Pa. Super. 162, 172, 620 A.2d 1161 (1993), which held that a trial court was not bound by an arbitrator’s child custody determination and must ascertain on its own whether an award is adverse to the best interests of children. Schoonmaker v. Cummings & Lockwood of Connecticut, P. C., supra, 434-35 n. 11. Schoonmaker provides yet another reason for finding that a clear public policy in favor of protecting children exists in this jurisdiction.

       There is a “well established correlation between drug dealing and firearms”; State v. Cooper, 227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993); and “weapons are tools of the narcotics trade.” State v. Hilton, 45 Conn. App. 207, 218, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998); see State v. Delossantos, 211 Conn. 258, 281, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). This correlation, stated repeatedly by our Supreme Court and by this court, depicts an additional layer of danger facing children placed under the department’s care and exposed to individuals such as Unwin.

       At oral argument, it was noted that § 17a-114 may be inapposite because it addresses individuals who would remain with children on a continuing, overnight basis, whereas Unwin’s responsibilities as a driver provided him with intermittent exposure to children. We find this argument unpersuasive. Exposure to illegal drugs can occur without warning and within a very short span of time. Unwin’s driver position provides the individual employed in that position more than sufficient time to influence children negatively regarding drugs. That risk exposure maintains the relevance of § lYa-114.

       Indeed, the court rightly noted the importance Connecticut places on the safe transportation of children. In its memorandum of decision, the court stated: “Connecticut has a clear and recognized policy attaching high priority to the safe transportation of schoolchildren. This policy is embodied in regulations concerning bus safety. See, e.g., Regs., Conn. State Agencies, § 14-275c-3, ‘Driver to safeguard children;’ § 14-275c-13, ‘Daily physical requirements,’ subsection f, which states that a school bus driver shall drive a school bus only on days when he has “[fjreedom from the effects of alcohol and other drugs;” § 14-275c-50, ‘Notification of convictions for driver violations and driver’s license suspension,’ which requires school bus drivers to notify their employers of arrests or convictions for driving under the influence of alcohol or drugs or charges concerning firearms, drugs, or controlled substances; § 14-275c-51, ‘Application for employment as a driver,’ requiring applicants for employment as school bus drivers to provide information about criminal convictions in any jurisdiction for the past five years and requires applicants to submit to a urinalysis drug test; and § 14-275e-53, ‘Annual update of driving record,’ which requires an annual review of bus drivers’ criminal convictions.”

       Although the defendant points to Norwalk Board of Education v. AFS-CME, Council 4, Local 1042, AFL-CIO, Superior Court, judicial district of Stamford-Norwalk, Docket No. 161740 (March 19, 1998), for support, we find this case unpersuasive. In Norwalk Board of Education, a school board terminated a custodian who had pleaded guilty to possession of cocaine within 1500 feet of a school. The custodian did not hold a supervisory position over children, unlike Unwin, who, by the nature of his position, was responsible for the children under his care. See, e.g., Regs., Conn. State Agencies § 14-275c-3 (school bus driver must apply all reasonable measures to safeguard children riding on bus). Furthermore, unlike Unwin, the custodian was convicted of possession of narcotics, not the more serious crime of possession of narcotics with intent to sell.

       The defendant stated at oral argument that there is an equally persuasive opposite inference that can be drawn from Unwin’s drug conviction and employment—that an individual convicted of two counts of possession of narcotics with intent to sell who retains steady employment can serve as a role model for children.
      First and foremost, no support exists in the arbitrator’s decision or anywhere else in the record for the notion that Unwin possessed any potential to become a role model for children in the department’s care nor could this court make such a factual determination. Under the standard of de novo review Schoonmaker requires us to apply when considering arbitral awards involving public policy, we must “adhere to the long-standing principle that findings of fact are ordinarily left undisturbed upon judicial review.” Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. 432 & n.8. Accordingly, we do not substitute our own judgment as to what facts should have been found by the arbitrator.
      Even if we were to consider the argument on its merits, it is a dubious one and, taken to its conclusion, borders on the absurd. If we believe that the better interpretation of Unwin’s drug conviction is that he stands as a role model, we turn convictions of drug possession with intent to sell into a badge of honor. Indeed, under this reasoning, prior criminal convictions are a positive trait, not a negative one, for positions in employment and elsewhere involving children. It further stands under this reasoning that the department should be hiring more convicted criminals, not less, so that children under the department’s care can see that one can commit a crime and turn one’s life around. This argument leads on a path that we cannot follow. Accordingly, we do not accept the defendant’s view of Unwin’s drug conviction.

       Section 14-275c-50 (c) of the Regulations of Connecticut State Agencies provides in relevant part: “Each driver shall notify Ms employer withm three (3) days of his arrest for, conviction of or an admimstrative sanction as a result of any of the following offenses . . .
      “(7) A felony or misdemeanor Mvolving firearms, drugs or controlled substances.”

       General Statutes § 17a-3 provides in relevant part: “The department shall plan, create, develop, operate or arrange for, administer and evaluate a comprehensive and integrated state-wide program of services, including preventive services, for children and youth whose behavior does not conform to the law or to acceptable community standards, or who are mentally ill, including deaf and hearing impaired children and youth who are mentally ill, emotionally disturbed, substance abusers, delinquent, abused, neglected or uncared for, including all children and youth who are or may be committed to it by any court, and all children and youth voluntarily admitted to the department for services of any kind. Services shall not be denied to any such child or youth solely because of other complicating or multiple disabilities. . . .”

       "The purposes for the enforcement of the criminal laws are the punishment and the rehabilitation of the guilty. . . .” State v. Trantolo, 209 Conn. 169, 173, 549 A.2d 1074 (1988) (Healey, J., dissenting).

       The grievant in February, 1996, was given a seven year suspended sentence with three years of probation. The state has not suggested that the grievant did not successfully complete his probation.

       Although I dissent from the majority’s opinion with respect to whether the arbitrator’s award should be vacated, I in no way condone the grievant’s criminal behavior.

       “Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous.” Waterbury v. Waterbury Police Union, supra, 176 Conn. 404; see also United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 39, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987).

       The majority’s statement that “the protection and nurturing of children is an important public policy is almost too obvious for discussion” comes perilously close, in my opinion, to flouting the established rule that “a policy must be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Citation omitted; internal quotation marks omitted.) United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 44, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987).

       For example, the majority cites the best interests of the child standard, which is applied in termination of parental rights cases; see, e.g., In re John G., 56 Conn. App. 12, 17, 740 A.2d 496 (1999) (“[i]n the dispositional phase, the trial court determines whether termination is in the best interests of the child”); and in awarding custody in dissolution cases; see, e.g, General Statutes § 46b-56 (b); G.S. v. T.S., 23 Conn. App. 509, 514, 582 A.2d 467 (1990) (“[t]he guiding principle applicable to determining the custody of children in a dissolution proceeding is the best interests of the child”).

       The majority’s consideration of the grievant’s drug offenses overlooks the complexity of this state’s Penal Code to address wrongs of various degrees against our society. The grievant was convicted of violating General Statutes §§ 21a-277 (b) and 21a-278 (b), which relate to possession of marijuana and cocaine with intent to distribute. Most notably for the facts of this case, he was not convicted under General Statutes §§ 21a-278a (possession with intent to distribute to minors) or 21-279 (d) (possession with intent to distribute within 1500 feet of school).

       The majority also relies on the regulations applicable to school bus drivers; see footnote 5 of the majority opinion; without any evidence that the regulations apply to department drivers.

       In State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 467, the terminated employee violated several laws and department of correction directives while he was on the job. The concurring opinion notes that distinction. Id., 479 (Peters, J., concurring).

       The majority lightly dismisses this important public policy by merely citing a dissenting opinion in a case decided by our Supreme Court and ascribing the word severe to the nature of the grievant’s crimes. Nowhere in its opinion does the majority cite any law distinguishing crimes that are severe from those that are not severe. Indeed, if the grievant’s crimes were so offensive to the children of our society, a suspended sentence and only three years of probation does not support that notion.

       General Statutes § 46a-79 provides: '‘The General Assembly finds that the public is best protected when criminal offenders are rehabilitated and returned to society prepared to take their places as productive citizens and that the ability of returned offenders to find meaningful employment is directly related to their normal functioning in the community. It is therefore the policy of this state to encourage all employers to give favorable consideration to providing jobs to qualified individuals, including those who may have criminal conviction records.”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    JAMES DAY v. CITY OF MIDDLETOWN ET AL.
    (AC 17283)
    Foti, Landau and Spear, Js.
    Argued February 14
    officially released September 12, 2000

      James F. Aspell, for the appellant (Fumiss and Quinn, P.C.).
   Opinion

SPEAR, J.

The law firm of Furniss and Quinn, P.C. (firm), a de facto party in this case, appeals from the decision of the workers’ compensation review board (board) reducing the amount of attorney’s fees awarded to the firm from $30,000 to $20,000. The firm claims that the board improperly substituted its judgment for that of the workers’ compensation commissioner (commissioner) in setting the attorney’s fees. We affirm the decision of the board.

The following facts and procedural history are relevant to this appeal. On September 27,1993, the plaintiff, James Day, retained the firm to represent him in the prosecution of a workers’ compensation action. The plaintiff agreed to pay the firm attorney’s fees of 20 percent of his gross recovery, subject to the commissioner’s approval. The firm represented the plaintiff for almost two years. During that time, the firm obtained documents from the plaintiff’s physician, attended numerous informal conferences and four formal eviden-tiary hearings, and participated in the deposition of four medical witnesses.

On March 7, 1995, following the conclusion of the evidence in the formal proceedings, the plaintiff discharged the firm as counsel and retained attorney Kenneth Bartlett in its place. On September 21, 1995, the plaintiff agreed to a lump sum settlement in the amount of $100,000. Formal hearings were subsequently held to determine the amount of attorney’s fees owed to the firm and to Bartlett. On February 2, 1996, the commissioner awarded the firm $30,000 in attorney’s fees.

The plaintiff appealed to the board from the commissioner’s award of attorney’s fees. The board reversed the commissioner’s decision and reduced the award of attorney’s fees from $30,000 to $20,000. The board held that (1) the $30,000 award was contrary to the workers’ compensation fee guidelines (fee guidelines) promulgated by the chairman of the workers’ compensation commission pursuant to General Statutes § 31-280 (b) (11) (C), and (2) the plaintiffs attorney’s fee agreement entitled the firm to only $20,000. This appeal followed.

The firm first claims that the board improperly reduced its award of attorney’s fees from $30,000 to $20,000 because such a determination is within the sole discretion of the commissioner pursuant to General Statutes § 31-327 (b). We disagree.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Internal quotation marks omitted.) Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 603-604, 748 A.2d 278 (2000).

The firm argues that the commissioner’s authority with respect to attorney’s fees derives from § 31-327 (b), which provides in relevant part that “[a]ll fees of attorneys . . . shall be subject to the approval of the commissioner.” We agree with the board’s conclusion that § 31-327 (b) only “gives the [commissioner] the power to examine all attorney’s fee agreements to ensure that they are consistent with the fee guidelines . . . General Statutes § 31-280 (b) (11) (A) empowers the chairman of the workers’ compensation commission to “[establish standards in consultation with the advisory board for approving all fees for services rendered ... by attorneys . . . .” Subsection (11) (C) directs the chairman to “[i]ssue, not later than October 1, 1993, and publish annually thereafter, guidelines for the maximum fees payable by a claimant for any legal services rendered by an attorney . . . .” General Statutes § 31-280 (b) (11) (C). In compliance with that statutory provision, the chairman issued the following relevant guideline: “4. Settlement or stipulation. An attorney may charge no more than 20% of the total of the settlement or stipulation, less medical bills that are paid by the claimant.” Accordingly, because the plaintiff settled this case for $100,000, the only discretion the commissioner had was to award attorney’s fees in an amount not in excess of $20,000, or 20 percent of the plaintiffs gross recovery award.

The firm next argues that in reducing the attorney’s fees award the board improperly substituted its factual findings for that of the commissioner. Specifically, it argues that the board was limited to hearing the “appeal on the record” and could not retry the facts. This claim is without merit. While the board generally is bound by the factual findings of the commissioner, the commissioner’s conclusions will not stand if predicated on a misapplication of the law. Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Here, the board reversed the commissioner’s decision because the commissioner failed to follow the fee guidelines, not because it made findings of fact that were different from the commissioner’s.

The firm next contends that the commissioner’s attorney’s fees award did in fact follow the fee guidelines. The firm claims that it is the board that did not follow the guidelines because the board failed to consider the plaintiffs $33,340 in outstanding medical bills when it determined the amount of attorney’s fees. To support its claim, the firm points out that § 4 of the fee guidelines mandates that only medical bills “paid by the claimant” be deducted before determining the percentage due as attorney’s fees. The commissioner “noted that the respondent-employer paid the outstanding medical bills and not the claimant in accordance with the terms of the stipulation.” Thus, the firm argues that the commissioner correctly reasoned that because the employer, not the plaintiff, paid the outstanding medical bills in accordance with the terms of the stipulation, the deduction mandated by § 4 of the fee guidelines did not apply. The board disagreed, however, ruling that the commissioner improperly included the “value of the medical bills paid on the claimant’s behalf,” in arriving at an award of $30,000. (Emphasis added.) We agree with the board.

We interpret the regulations of an administrative body pursuant to the principles of statutory construction. Preston v. Dept. of Environmental Protection, 218 Conn. 821, 829 n.9, 591 A.2d 421 (1991). We see no reason not to apply those principles here where the chairperson of the workers’ compensation commission, pursuant to statutory authority, is authorized to promulgate regulations and guidelines. “When interpreting a regulation, we must use common sense. Citerella v. United Illuminating Co., 158 Conn. 600, 609, 266 A.2d 382 (1969). ‘Courts must assume that a reasonable and rational result was intended and construe the regulation accordingly.’ Id. When confronted with two possible interpretations, courts will adopt the interpretation that makes the regulations effective and workable, and not the one that leads to unreasonable results. Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737-38, 563 A.2d 1347 (1989). ‘The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of [a regulation] is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable.’ Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984).” Fullerton v. Dept. of Revenue Services, 245 Conn. 601, 612, 714 A.2d 1203 (1998). We, therefore, presume that a reasonable and rational result was intended by the chairman in adopting the fee guidelines.

If we were to adopt the commissioner’s interpretation of § 4 of the fee guidelines, it could lead to irrational and unreasonable results. For example, suppose that a claimant with $50,000 in medical bills settles his case for $150,000. If the employer pays the medical bills and pays the claimant $100,000, under a 20 percent contingent fee agreement, the claimant would owe attorney’s fees on a percentage of $150,000 because he could not deduct the medical bills before computing the fee. If the claimant settles the same case for $150,000, but elects to pay the $50,000 in medical bills himself, the claimant would owe attorney’s fees on a percentage of only $100,000 because the claimant could deduct the medical bills that he had paid before determining the amount of attorney’s fees. If we assume that the commissioner approves the 20 percent contingent fee, in the first case the fee would be $30,000 and, in the second case, it would be $20,000. It is not reasonable or sensible for the legal fees on an identical settlement to vary depending on whether the claimant or the employer pays the medical bills.

The board’s interpretation requiring that the value of the medical bills paid on behalf of the claimant be deducted before determining the percentage of legal fees owed is sensible and reasonable. In the previous example, the fee would be the same in each case. Each claimant would pay 20 percent of $100,000 without regard to who actually issued the check that paid the claimant’s medical bills.

In the alternative, the firm claims that § 5 of the fee guidelines allowed the commissioner to consider the amount of time that the firm spent on the plaintiffs case, and, as a result, the commissioner was within the fee guidelines in awarding attorney’s fees of $30,000. Section five does not apply here because this case involves a settlement agreement. Section five would apply to an award that was rendered after a contested or formal hearing. Pursuant to § 4 of the fee guidelines, the firm is entitled to a maximum fee of 20 percent of the settlement.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       We originally dismissed this appeal, holding that the firm was not a party to the workers’ compensation proceedings and, therefore, was limited to filing a writ of error. See State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999). Our Supreme Court, however, reversed our judgment and concluded that because the underlying compensation claim had been settled, leaving only the matter of attorney’s fees unresolved, the firm was a de facto party that was entitled to appeal. Day v. Middletown, 245 Conn. 437, 441-42, 716 A.2d 47 (1998). The Supreme Court then remanded the case to this court for a hearing on the merits. Id., 438.

       The named defendant, the city of Middletown, which was the plaintiffs employer, and the city’s insurer, the defendant Alexsis, Inc., are not parties to this appeal.

       The attorney’s fees agreement dated September -27, 1993, provides in relevant part that the firm “shall be entitled to a fee of 20% of the total gross amount of money or benefit realized, before the deduction of any expenses or bills. . . . It is expressly understood that any such fee is subject to the approval of the appropriate workers’ compensation commissioner.”

       The firm and Bartlett apparently reached an agreement as to the apportionment of the legal fees and there is no dispute between those parties.

       See footnote 1.

       General Statutes § 31-327 (b) provides in relevant part: “All fees of attorneys . . . for services under this chapter shall be subject to the approval of the commissioner.”

       The firm also relies on Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124, 612 A.2d 82, cert. denied, 223 Conn. 920, 615 A.2d 507 (1992), Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179 n.8, 355 A.2d 227 (1974), Menzies v. Fisher, 165 Conn. 338, 349, 334 A.2d 452 (1973), and Tartakovsky v. Sohmer/Pratt, & Read, 7 Conn. Workers’ Comp. Rev. Op. 46, 47 (1989). None of these cases support the firm’s proposition, nor were any of them decided subsequent to the promulgation of the fee guidelines.

       General Statutes § 31-280 (b) provides in relevant part: “The chairman of the Worker’s Compensation Commission shall... (3) Adopt regulations . . . to carry out his responsibilities under this chapter . . . .”

       See footnote 6.

       Section five of the fee guidelines provides: “Contested cases or formal hearings. An attorney may charge a contingency fee not more than 20% or an amount to be determined by the Commissioner based on time spent.”


author: HENNESSY, J.

text:
    EDDIE FORD v. COMMISSIONER OF CORRECTION
    (AC 18737)
    Foti, Hennessy and Zarella, Js.

      Submitted on briefs June 2
    officially released September 12, 2000

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Mary Elizabeth Baran, senior assistant state’s attorney, and Ellen A. Jawitz, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

HENNESSY, J.

This is an appeal from the judgment dismissing the petition for a writ of habeas corpus filed by the petitioner, Eddie Ford. The petitioner claims that the habeas court improperly dismissed his petition for a writ of habeas corpus because the petitioner already had served his sentence. We affirm the judgment of the habeas court.

The following facts are relevant for our resolution of this appeal. On October 16, 1992, the petitioner, convicted of the crimes of robbery in the first degree, robbery in the second degree and tampering with a witness, received a total effective sentence of twenty-five years, execution suspended after twenty-one years. The petitioner subsequently pleaded guilty in a second criminal case to burglary in the third degree and, on November 12,1992, was sentenced to a term of three years imprisonment on the burglary conviction, to run concurrently with the sentence imposed for the robbery conviction.

On February 18, 1997, after he had finished serving his three year sentence for the burglary conviction, the petitioner filed a two count petition for a writ of habeas corpus based on the robbery and burglary convictions. The habeas court struck the second count of the petition concerning the robbery conviction on grounds not related to this appeal.

On June 15, 1998, the respondent, the commissioner of correction, moved to dismiss the amended one count petition involving the burglary conviction on the ground that the petitioner already had served his sentence for the burglary conviction, and therefore the claim was moot. Relying on the United States Supreme Court’s decision in Maleng v. Cook, 490 U.S. 488, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989), the habeas court found that the petitioner was not in custody for the burglary conviction at the time he filed his petition and, therefore, dismissed the petition. The habeas court granted the petitioner’s application for certification to appeal the dismissal of the petition, and this appeal followed.

The issue presented to this court requires us to determine whether the petitioner was in custody, thereby giving the habeas court subject matter jurisdiction to hear the habeas petition. “A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy. This jurisdiction relates to the court’s competency to exercise power.” Vincenzo v. Warden, 26 Conn. App. 132, 134-35, 599 A.2d 31 (1991). “Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented.” (Internal quotation marks omitted.) Id., 135.

“Habeas corpus provides a special and extraordinary legal remedy for illegal detention. . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus.” (Citations omitted; internal quotation marks omitted.) Id., 137-38. The federal habeas statute gives courts jurisdiction to entertain petitions for habeas corpus only from persons who are “m custody in violation of the Constitution or laws or treaties of the United States.” (Emphasis in original; internal quotation marks omitted.) Maleng v. Cook, supra, 490 U.S. 490. The history of Connecticut’s habeas corpus jurisprudence is “wholly in accord” with federal habeas corpus jurisprudence. Vincenzo v. Warden, supra, 26 Conn. App. 137. Thus, pursuant to General Statutes § 52-466, a Connecticut habeas court has subject matter jurisdiction only over those cases brought by a petitioner who is “illegally confined or deprived of his liberty” under the challenged conviction. See also Tracy v. Johnson, 156 Conn. 630, 631, 239 A.2d 477 (1968) (“ ‘[i]t is a condition upon . . . [the] Court’s jurisdiction to adjudicate an application for habeas corpus that the petitioner be in custody when that jurisdiction can become effective’ ”).

The United States Supreme Court’s decision in Maleng v. Cook, supra, 490 U.S. 488, is dispositive of this case. In Maleng, the habeas petitioner, Cook, was convicted of robbery in 1958 and sentenced to twenty years imprisonment. Id., 489. While on parole from that sentence, he was convicted of assault and of aiding a prisoner to escape, and he was sentenced by the state of Washington in connection with those convictions in 1978. Id. At about the same time, Cook was convicted in federal court of robbery and conspiracy. He was to serve his 1978 state court sentences after completing his federal term of imprisonment. Id.

In 1985, while serving his federal term, Cook filed a petition for federal habeas corpus relief in which he attacked his 1958 state conviction and also alleged that the 1958 conviction was used illegally to enhance his 1978 state sentences, which he had not yet begun to serve. Id., 490. The United States Supreme Court concluded that Cook was not “in custody” under the 1958 sentence and therefore could not directly challenge the conviction underlying that sentence. Id. In reaching this conclusion, the court stated that it had “never held . . . that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” Id., 491. Moreover, the court held that the potential use of the conviction to enhance a sentence for subsequent offenses did not suffice to render a person “in custody” within the meaning of the habeas statute. Id., 492.

We conclude that Maleng is applicable to the present case because the court in Maleng established that if the petitioner suffers no present restraint from the conviction being challenged, a habeas petition cannot he. With regard to the burglary conviction in the present case, the petitioner was sentenced on November 12, 1992, to a term of three years to be served concurrently with his robbery conviction. The burglary sentence was completed on November 12, 1995, prior to the petitioner’s filing of his petition for habeas corpus. Because the petitioner’s burglary sentence has expired, he is not in custody on the burglary sentence.

The petitioner cites Garlotte v. Fordice, 515 U.S. 39, 115 S. Ct. 1948, 132 L. Ed. 2d 36 (1995), for the proposition that a prisoner serving consecutive sentences is “in custody” under any one of the sentences for purposes of the habeas statute. In Garlotte, the petitioner was ordered to serve, consecutively, a three year prison sentence on a marijuana conviction and then concurrent life sentences on two murder convictions. Id., 41-42. He filed a habeas petition pertaining to the marijuana conviction after he had completed serving the three year sentence connected with that offense. Id., 42. The United States Supreme Court held that invalidation of the Garlotte’s marijuana conviction would advance the date of his eligibility for release from his present incarceration. Id., 47. Garlotte’s challenge, which would have shortened his term of incarceration if he had proved the unconstitutionality of his detention, implicated the core purpose of habeas review. Id. Accordingly, the court held that Garlotte was “in custody” under his marijuana conviction when he filed his habeas petition. Id.

In the present case, the sentences were to be served concurrently rather than consecutively. Therein lies the fundamental difference between this case and Garlotte. The Garlotte court was concerned that if it held that a prisoner could not challenge a consecutive term that already had been served, but that a prisoner could challenge an unserved consecutive term; see Peyton v. Rowe, 391 U.S. 54, 67, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968); then the question of whether a prisoner serving consecutive sentences had met the “in custody” requirement would turn on the arbitrary decision of a trial court to have one consecutive sentence run before another. See Garlotte v. Fordice, supra, 515 U.S. 45-46. The concern expressed by the court in Garlotte does not arise in cases such as this one where the petitioner is serving concurrent sentences because concurrent sentences automatically begin to run at the same time. See General Statutes § 53a-38 (b) (“definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced”).

The petitioner also cites General Statutes §§ 18-7 and 53a-38 for the proposition that the burglary sentence and the robbery sentence constitute “a continuous stream of incarceration entitling him to petition for habeas corpus relief.”

Section 18-7 provides in relevant part: “When any prisoner is held under more than one conviction, the several terms of imprisonment thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section. . . .” The petitioner relies on the “continuous term” language contained in § 18-7 to support his position on the “in custody” requirement in habeas corpus matters. Section 18-7, however, serves only as an aid for computing good conduct credit for prisoners serving more than one sentence. Moreover, the statute also applies only to “[a]ny prisoner sentenced to a term of imprisonment prior to October 1,1976 . . . .” The petitioner was sentenced on October 16,1992, and on November 12,1992, and, therefore, the statute is inapplicable.

The petitioner also claims that § 53a-38 (b) supports his position. Section 53a-38 (b) provides in relevant part: “A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run . . . .” The petitioner claims that the three year sentence merged by its own terms into the twenty-one year sentence, thereby yielding a continuous stream of incarceration entitling him to petition for habeas corpus relief.

Section 53a-38 (b) does not support the petitioner’s argument. The statute provides that a person serving concurrent sentences may not be released from prison until the longer of the sentences has been completed. It does not apply to the “in custody” definition in habeas corpus matters. Accordingly, we conclude that the petitioner was not “in custody” for purposes of challenging his burglary conviction at the time the petition was filed, and the habeas court properly found that it did not have subject matter jurisdiction to hear the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       It is clear from the transcript of the hearing on the motion to dismiss and from the ruling of the habeas court that the issue under consideration was whether the petitioner met the "in custody” requirement for maintaining a habeas corpus action. Both the mootness doctrine and the “in custody” requirement implicate the court’s subject matter jurisdiction.

       28 U.S.C. § 2241 et seq.

       General Statutes § 52-466 (a) provides: “An application for a writ of habeas corpus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty, provided any application made by or on behalf of a person confined in the Connecticut Correctional Institution, Enfield-Medium or the Carl Robinson Correctional Institution, Enfield, shall be made to the superior court or a judge thereof for the judicial district of Tolland.”


author: Spallone, J.

text:
    Thomas O. Vazzano et al. v. Donald W. Slater et al.
    (3166)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 5, 1985
    decision released January 7, 1986

      Laurence V. Parnoff, with whom, on the brief, were Anne S. Finnie and F. J. Polesak, Jr., for the appellants (plaintiffs).

      Robert W. Lotty, for the appellees (defendants).
   Spallone, J.

The plaintiffs are appealing from a judgment rendered following a jury verdict for the defendants in this action for damages resulting from an automobile collision. The trial court denied the plaintiffs’ motion to set aside the verdict and for a new trial.

The plaintiffs claim that the court erred (1) in failing to set aside the jury verdict in favor of the defendant because the evidence did not support the verdict, (2) in limiting the testimony of the plaintiffs’ rebuttal witness, and (3) in admitting page one of the two page police report as the defendants’ exhibit.

The jury could reasonably have found the following facts: Immediately preceding the accident, the defendant Donald W. Slater was operating a motor vehicle in a northerly direction on Huntington Street and was approaching Nichols Avenue in the town of Shelton. Slater, intending to make a left turn onto Nichols Avenue, activated his left turn indicator approximately 100 feet from the intersection and, proceeding at a slow speed, began to make a left turn. Before Slater completed his turn, the plaintiff Thomas 0. Vazzano, who also was operating a vehicle in a northerly direction on Huntington Street, overtook the Slater vehicle while also attempting to make a left turn onto Nichols Avenue and collided with Slater’s vehicle. There was evidence that the plaintiff was proceeding at a rate of speed in excess of 25 miles per hour just prior to the collision, which speed was over the posted limit.

The plaintiffs have framed their first claim of error in two parts: (1) did the plaintiffs prove their prima facie case as a matter of law; and (2) was sufficient credible evidence presented to the jury by the defendants to support a verdict in the defendants’ favor. We find these claims to be totally lacking in merit. The plaintiffs are attacking the factual findings of the jury. There was a special defense of contributory negligence. The jury returned a general verdict for the defendants. Under these circumstances, where the verdict is general, it imports that the jury found all disputed issues in favor of the prevailing party; Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142 n.5, 491 A.2d 389 (1985); Tetro v. Stratford, 189 Conn. 601, 610, 458 A.2d 5 (1983); Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984); and the actual basis for the jury’s decision must remain unknown. Duley v. Plourde, 170 Conn. 482, 487, 365 A.2d 1148 (1976). We are precluded from delving into the minds of the jurors in order to ascertain the basis and rationale underlying their decision. Eagar v. Barron, supra. When there is sufficient evidence presented to support the decision of the jury, its general verdict should not be disturbed. See State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983); State v. Stankowski, 184 Conn. 121, 127, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). There is nothing in this appeal, based on the sufficiency of the evidence, to warrant our intrusion into the realm of the jury.

In reviewing the court’s action on a motion to set aside the verdict, the dispositive question is whether the trial court clearly abused its discretion. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980); Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 584, 501 A.2d 1214 (1985). The ruling of the trial court on a motion to set aside the verdict, because of its familiarity with the facts, is entitled to great weight. Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); Holden & Daly, Connecticut Evidence (Sup. 1983) § 35. In determining whether the trial court abused its discretion, the only issue is whether the jury could reasonably and logically have reached the conclusion it did reach. If so, the court’s refusal to set aside the verdict will be sustained. Labatt v. Grunewald, supra, 240-41; Todd v. Malafronte, 3 Conn. App. 16, 23, 484 A.2d 463 (1984). We conclude that the jury could reasonably and logically have concluded as it did, and that the court did not abuse its discretion in denying the plaintiffs’ motion to set aside the verdict.

The plaintiffs’ second claim is that the court erred in limiting the testimony of their expert witness. After the plaintiffs and the defendants had rested, the plaintiffs sought permission of the trial court to put on the testimony of an accident reconstruction engineer. The plaintiffs offered this testimony in an effort to rebut certain “new” facts presented by the defendants. At trial, the defendants claimed, for the first time, that the car driven by Slater was in the left lane with, at most, its right rear wheel over the center line. The trial court, over an objection by the defendants, allowed the plaintiffs to amend their complaint merely to conform it to the evidence produced. The defendants thereafter amended their answer. The plaintiffs, by their offer of expert testimony, sought to rebut the claim that the car driven by Slater was in the left lane and to clear up any possible confusion in the minds of the jury. The court allowed the witness to testify but narrowly limited the scope of the testimony to rebuttal of the facts presented regarding the lane in which Slater was traveling. The court refused to allow the witness to reconstruct the paths traveled by the cars. The plaintiffs argue that this evidence was made necessary in light of the new facts presented by the defendants, to which the plaintiffs were allowed to conform their complaint.

The fact that the court allowed the plaintiffs to amend their complaint to conform to the defendants’ evidence did not afford the plaintiffs full license to relitigate their case. The transcript indicates clearly that the plaintiffs’ purpose in offering the testimony of their expert witness was solely to rebut the testimony given by the defendants and their witnesses. The evidence was not offered as part of the plaintiffs’ direct case. The extent to which rebuttal testimony is allowed is within the sound discretion of the court. State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); DiMaio v. Panico, 115 Conn. 295, 298, 161 A. 238 (1932); Liskiewicz v. LeBlanc, 5 Conn. App. 136, 139-40, 497 A.2d 86 (1985). Such testimony is ordinarily limited to refuting evidence and impeaching or rehabilitating witnesses. See State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978); Reboni v. Case Brothers, Inc., 137 Conn. 501, 508, 78 A.2d 887 (1951); Holden & Daly, supra, § 11. The record does not disclose that the trial court, in limiting the testimony, abused its discretion.

Finally, the plaintiffs claim as error the trial court’s decision to allow into evidence a police report offered by the defendants. The court had previously allowed in a portion of that same report as a plaintiffs’ exhibit. The defendants claimed that page one of the report was relevant in that it explained and identified the operators with their respective vehicles which were only referred to as vehicle “#1” and “#2” on the second page of the report which contained the portion offered by the plaintiffs. The plaintiffs objected to the document as containing inadmissible hearsay. We disagree.

The part of the report objected to by the plaintiffs consisted of a series of boxes within which were numbers representing certain police codes. The codes allegedly represented the reporting officer’s opinion as to the cause of the accident. By definition, the hearsay rule “excludes statements made out of court which are offered to establish the truth of the facts contained in the statements . . . .” Rompe v. King, 185 Conn. 426, 428, 441 A.2d 114 (1981); State v. Randolph, 190 Conn. 576, 584, 462 A.2d 1011 (1983). It is clear that the police report was offered by the defendants and was admitted by the court for the limited purpose of identifying the portion of the report offered initially by the plaintiffs. The report was not offered nor was it admitted for the purpose of proving the matters contained in the boxes and objected to by the plaintiffs. The codes were never explained to the jury and cannot be considered inadmissible on the ground of hearsay.

Where a party introduces only part of a document, the opposing party is entitled to introduce other parts of the document which are relevant and competent evidence. See Walter v. Sperry, 97 Conn. 474, 480, 85 A. 739 (1897); Laufer v. Bridgeport Traction Co., 68 Conn. 475, 484, 37 A. 379 (1897); Holden & Daly, supra, § 86 (d) (1). “A ruling on relevancy falls within the trial court’s broad discretionary powers and is subject to review by this court only to ensure that its discretion has not been abused.” Filosi v. Hawkins, 1 Conn. App. 634, 640, 474 A.2d 1261 (1984), citing Hardisty v. Hardisty, 183 Conn. 253, 257, 439 A.2d 307 (1981). We cannot say that the court, by allowing page one of the police report into evidence, abused its discretion.

We conclude that the trial court, in its rulings on the plaintiffs’ motion to set aside the verdict, and in its rulings upon the limitation of rebuttal testimony and the admissibility of relevant evidence, exercised the sound discretion vested in it. Nothing in the record supports the plaintiffs’ claims of errors.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs in this appeal are Thomas 0. Vazzano, the driver of a car involved in the accident, and his wife Christine Vazzano, on a loss of consortium claim. Thomas 0. Vazzano’s employer was an intervening plaintiff in the trial court on a workers’ compensation reimbursement claim, but is not involved in this appeal.

       The defendants in this appeal are Donald W. Slater, the driver of the second car involved in the accident, and Preferred Leasing Company, the owner and lessor of that car.


author: Borden, J.

text:
    Heather Smarz v. Helen Chabot
    (3767)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 5, 1985
    decision released January 7, 1986

      Jeffrey D. Ginzberg, for the appellant (plaintiff).

      Irwin J. Gordon, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the trial court’s judgment dissolving a prejudgment attachment. There are two issues presented in this appeal, one of which is dispositive: whether the trial court erred in finding no probable cause for the attachment. We find no error.

The plaintiff commenced suit against the defendant, a day care provider, alleging that the defendant had sexually molested her. Concomitant with the filing of the complaint, the plaintiff applied for and was granted an ex parte attachment upon the defendant’s real property pursuant to General Statutes § 52-278e. The defendant moved to dissolve or modify the attachment. During and after the hearing on this motion, the defendant moved to exclude as hearsay those aspects of the testimony of certain witnesses regarding statements made to them by the plaintiff. The trial court reserved its evidentiary ruling until after the parties presented all of the evidence. After hearing the parties’ oral arguments on the motion to exclude, the court ruled that the evidence be stricken. The court also ruled that regardless of its evidentiary decision, there was no probable cause to sustain the validity of the plaintiff’s claim. At the request of the plaintiff, the court reiterated that its decision rested upon one ground, namely, that the plaintiff had not established probable cause, even if the court considered all of the stricken evidence. Accordingly, the court dissolved the attachment.

On appeal, the plaintiff raises two issues. First, the plaintiff contends that certain excluded testimony of the plaintiff’s mother, and of the pediatrician and the psychologist who examined the plaintiff, should have been admitted under various exceptions to the hearsay rule. We do not consider this first issue because we find dispositive the second issue raised by the plaintiff. That issue is whether the trial court erred in finding that, even if it considered the excluded testimony, the plaintiff had not established probable cause that judgment would be rendered in her favor.

The following is a brief summary of the evidence before the court. The defendant provided day care for the plaintiff from the end of June, 1984, to September 11, 1984. The plaintiffs mother, suspecting that the plaintiff had been sexually abused, contacted her pediatrician and arranged for an examination of the plaintiff on September 13,1984. The plaintiff had previously experienced vaginal irritation due to the use of bubble bath soap and the pediatrician had in the past prescribed medicated cream for the condition. The cream required manual application. On September 13, the pediatrician found the condition to have worsened. He noticed both inflammation and an abrasion in the affected area. He did not, however, detect any bruises on the plaintiff during this first examination. The next day, the pediatrician observed bruises on the plaintiff’s arms and legs which appeared to indicate that she had been forcibly held down. On the basis of these observations and the history as provided by the mother, the pediatrician initiated a child abuse referral to the department of children and youth services (DCYS). See General Statutes § 17-38a. DCYS arranged for a psychological evaluation of the plaintiff.

At the probable cause hearing, the pediatrician, the psychologist and the plaintiff’s mother, inter alios, testified. Neither of the professional witnesses could formulate an opinion regarding the cause of the child’s condition. In addition, the pediatrician testified that although bruises may not immediately appear on the body, it would not take as long as forty-eight hours after being inflicted for them to appear on the plaintiff’s body.

The trial court noted that the last time the defendant had any contact with the plaintiff was seventy-two hours or more before the date the pediatrician first observed bruises. In addition, the court questioned the pediatrician’s testimony to the extent that he stated that he may have overlooked these bruises during his first examination of the plaintiff. The parties attempted unsuccessfully to elicit testimony from the four year old plaintiff.

General Statutes § 52-278e provides in pertinent part that a defendant “may move to dissolve or modify the prejudgment remedy granted pursuant to this section . . . [and if] the court determines at such hearing . . . [that there was no probable cause to sustain the validity of the plaintiff’s claim, then] the prejudgment remedy shall be dissolved.” “ ‘The court’s role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979).’ Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).” Solomon v. Aberman, 196 Conn. 359, 363, 493 A.2d 193 (1985). Our standard of review has been “consistently enunciated.” Solomon v. Aberman, supra, 364. “ ‘ “In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” ’ ” (Citations omitted.) Id.

Applying this standard, we conclude that the trial court’s decision is not affected by clear error. The court’s findings regarding the dates when bruises were first seen by the pediatrician support the court’s doubts as to the credibility of the pediatrician’s testimony. In addition, neither of the professional witnesses could state the cause of the plaintiff’s condition. Thus, the court’s conclusion that there was no probable cause to sustain the validity of the plaintiff’s claim rests upon an adequate evidentiary basis and is not affected by clear error.

There is no error.

In this opinion the other judges concurred.

       The named plaintiff, Heather Smarz, is a four year old child who initiated this action through her parent and next friend, Florence Goncalvez. All references in this opinion to the plaintiff are to Heather Smarz.

       Because our review of trial court decisions in prejudgment remedy matters is limited; see Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393-94, 480 A.2d 561 (1984); and because this case involves alleged sexual molestation of a readily identifiable child; see State v. Tyler-Barcomb, 197 Conn. 666, 669 n.1, 500 A.2d 1324 (1985); we will only briefly summarize the evidence underlying the trial court’s decision.


text:
    City of Hartford v. Local 760, International Association of Firefighters, AFL-CIO
    (3552)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 8, 1985
    decision released January 7, 1986

      J. William Gagne, Jr., for the appellant (defendant).

      H. Maria Cone, assistant corporation counsel, with whom, on the brief, was Richard H. Goldstein, corporation counsel, for the appellee (plaintiff).
   Spallone, J.

The defendant claims that the court erred (1) in ruling that the arbitrators had exceeded their authority, (2) in ruling that the arbitrators were precluded from fashioning a remedy, and (3) in failing to remand the case for a new arbitration hearing and award.

The grievant, Ollie Little, a twelve year veteran of the Hartford fire department, was allegedly involved in a bank robbery. He was arrested for his participation in the theft and, after a hearing, was suspended from the fire department without pay pending the disposition of the criminal charges. The defendant union, Local 760, filed a grievance with the fire department on behalf of Little which was denied. The union then requested arbitration pursuant to the parties’ collective bargaining agreement. In accordance with the procedures provided therein, an arbitration hearing regarding the grievance was conducted by the state board of mediation and arbitration. The parties could not agree on the form of the submission of the issue. Therefore, the board framed the issue as follows: “Was the Grievant, Ollie Little, Jr., suspended for just cause under the collective bargaining agreement? If not, what shall the remedy be?” (Emphasis added.) The board, after hearing all parties, made its award and answered the first question raised by the submission in the affirmative, i.e., that the grievant was suspended for just cause. The board, however, went on to decide that the period of suspension was inappropriate and reduced it. The plaintiff filed an application to the Superior Court to vacate the award pursuant to General Statutes § 52-418. The court ruled that the board, by reducing the suspension after its finding of just cause, exceeded its powers in that the award did not conform to the submission. Accordingly, the court granted the plaintiffs application to vacate the arbitrators’ award.

There is no question that arbitration awards are generally upheld and that we give great deference to an arbitrator’s decisions since arbitration is favored as a means of settling disputes. Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); Trumbull v. Trumbull Police Local 1745,1 Conn. App. 207, 211-12, 470 A.2d 1219 (1984). Although a party to arbitration is entitled to judicial review, the autonomous nature of the arbitration process dictates minimal intrusion by the courts. Middletown v. Police Local, No. 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982); Trumbull v. Trumbull Police Local 1745, supra.

The party challenging the award must produce evidence sufficient to invalidate or avoid the award. Board of Education v. AFSCME, supra, 271; Gary Excavating Co. v. North Haven, 160 Conn. 411, 413, 279 A.2d 543 (1971). General Statutes § 52-418 (a) (4) empowers the Superior Court to vacate an arbitration award where “the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

When reviewing such actions, the trial court is limited to the sole issue of whether the award conforms to the submission. Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981); Board of Education v. Local No. 818, 5 Conn. App. 636, 639-40, 502 A.2d 426 (1985); Gennarini Construction Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 65, 496 A.2d 539 (1985); American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219, 222, 470 A.2d 253, cert. denied, 193 Conn. 801, 473 A.2d 1266 (1984). The submission defines the scope of the entire arbitration proceedings by specifically delineating the issues to be decided and no matter outside the submission may be included in the award. Board of Education v. AFSCME, supra; Bruno v. Department of Consumer Protection, supra; see Oldread v. National Union Fire Ins. Co. of Pittsburgh, 5 Conn. App. 517, 519-20, 500 A.2d 956 (1985). Where the award does not conform to the submission, the arbitrator has exceeded his authority and the court may vacate the award upon proper application by either party. Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977); see Board of Education v. AFSCME, supra.

We are adamant in our adherence to these principles which serve to perpetuate the autonomous nature of the arbitration process. To hold otherwise would expand the role of the trial court in arbitration proceedings which would result in an unwarranted and counterproductive diminution of the efficacy of such proceedings.

There is no question here that the award does not conform to the submission. The submission is clear on its face. By its language, which the arbitrators directed to themselves, the submission precluded the arbitrators from determining the question of remedy unless they found that the grievant was suspended without just cause. The phrase “if not,” in the context of the submission as a whole, does not mean “if so” which, under the circumstances of this case, would have required the arbitrators to respond to the second portion of the submission: “what shall the remedy be?” See Board of Education v. Bridgeport Education Assn., supra, 289. Accordingly, we conclude that the trial court did not err in finding that the arbitrators exceeded their authority as delineated within the submission.

Because our conclusion that the arbitrators were precluded from determining the question of remedy addresses fully the defendant’s second claim of error, we will not comment further upon that claim.

The defendant’s third and final claim of error, that the trial court erred in not remanding the case to the arbitrators for a rehearing, is also without merit. General Statutes § 52-418 (b) provides that “[i]f an [arbitration] award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.” The language of the statute clearly invokes the court’s discretion in such matters. Middletown v. Police Local, No. 1361, supra, 231. We will not interfere with the discretion of the trial court unless that discretion is clearly abused. Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 383 (1982); Bratz v. Bratz, 4 Conn. App. 504, 507, 495 A.2d 292 (1985). We conclude that the trial court did not abuse its discretion in failing to remand the matter for a rehearing.

There is no error.

In this opinion the other judges concurred.