author: Shea, J.

text:
    White Oak Corporation v. Department of Transportation
    (13932)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued November 7, 1990
    decision released January 29, 1991

      Edwin A. Lassman, for the appellant-appellee (plaintiff).

      Lawrence Russ, assistant attorney general, with whom, was William J. White, former assistant attorney general, for the appellee-appellant (defendant).
   Shea, J.

This action was brought by a highway construction contractor after it had completed a major highway construction project for the state of Connecticut in 1979. The principal issues before us are (1) whether a “no damages for delay” clause in the contract limits the plaintiffs recovery of damages, (2) whether the amount awarded to the plaintiff for idle equipment should be adjusted to reflect lack of wear and tear, and (3) whether the state is liable for prejudgment interest on the amounts due the plaintiff.

On April 17, 1974, the plaintiff, White Oak Corporation (White Oak), a construction company, executed a written contract with the defendant, the state of Connecticut, acting through the department of transportation (DOT), primarily for the construction of Route 72 in New Britain and Berlin. The project was completed in November, 1979. On October 18,1983, White Oak brought suit under General Statutes § 4-61, claiming, inter alia, payments allegedly due on the contract with DOT and damages incurred by the plaintiff when DOT allegedly delayed the project’s completion. On White Oak’s motion made pursuant to General Statutes § 13b-57a* * the trial court referred the case to a panel of three arbitrators for a finding of subordinate facts.

The parties stipulated that the arbitration panel would also make findings of fact as to the damages, if any. Accordingly, the arbitrators calculated damages on each count of the complaint. They did not, however, determine whether the plaintiff was entitled to interest on these damages, nor did they calculate the amount of interest to be awarded or the date from which the interest would run. Nevertheless, they did set forth the amounts of interest claimed and the rates at which they had been calculated.

The arbitration panel reported its findings of fact to the trial court after modifying them in response to the parties’ motions to correct. Granting only one of the DOT’s numerous exceptions, the trial court then corrected the panel’s report by incorporating the contract and its accompanying plans into the report as exhibits. As corrected, the report contained the following relevant facts.

The contract required that White Oak complete the project within 1650 days from the starting date and entitled it to receive the sum of $48,644,853.17 for its work. If White Oak failed to complete the work within 1650 days, the contract allowed DOT to deduct from the amount due $1000 per day for each day White Oak was late. DOT ordered White Oak to begin work on or about April 22, 1974, thereby setting a completion date of October 27,1978. White Oak did not complete the work until November 23, 1979, 392 days late.

In March, 1980, after the project was completed, White Oak asked DOT, pursuant to a provision in the contract, for a retroactive extension of the completion date because the project had been delayed for causes claimed to have been beyond its control. DOT extended the date, but only by 305 days (184 days of excusable delay plus 121 days of “winter shutdown”), to August 28, 1979, leaving a contract overrun of 87 days, which resulted in a payment deduction by DOT of $87,000.

The arbitrators found that all 392 days of delay were caused by factors outside White Oak’s control. First, White Oak was prevented from doing excavation work from November 1, 1975, until May 5, 1976, when the gas company, Connecticut Natural Gas, finally removed its gas line from Elm Street in New Britain, even though “the plaintiff had reasons to expect that the gas main on Elm Street . . . would be removed upon the installation of the regulator and piping at the intersection of Peck and Short Streets,” and even though White Oak made repeated inquiries and requests concerning the removal of the gas line commencing in September, 1974, as soon as that installation was completed. The delay in removal of the gas line prevented White Oak from working on the construction of a bridge, because the contract specifically prohibited it from disturbing the bridge site until the gas line was removed. DOT’S delay in furnishing controls for the construction of temporary railroad lines, also required under the contract, caused White Oak additional delay.

The panel found that these delays not only had caused White Oak’s failure to meet the contract completion date, but also had resulted in other damages, because the passage of time had increased its labor and general overhead costs. Thus, the panel found that DOT owed White Oak, in addition to the $87,000 it had withheld as liquidated damages, a further amount to compensate White Oak for its losses from these delays.

The arbitration panel found in favor of White Oak on most of its other claims. The panel found that DOT had not been timely in making the periodic payments the contract required when portions of the project were completed or, if not completed, approved by the DOT’S engineer. It also found that DOT owed White Oak for additional, unanticipated work that White Oak had performed at DOT’s request. Finally, the panel found that DOT had overcharged White Oak for gravel White Oak had removed during the project, and owed White Oak reimbursement of the excessive amount deducted from DOT’s payments.

In rendering judgment, the trial court accepted all of the factual findings of the arbitration panel but sustained several objections filed by DOT. The court disallowed the award of damages resulting from the gas company delay, reduced the damages allowed for idle equipment resulting from DOT’s other delays, and denied White Oak’s claim for prejudgment interest. White Oak on appeal challenges these three rulings. We will consider its challenges in that order.

I

As a threshold matter, we note that the trial court’s role in reviewing the corrected arbitrators’ report was limited to rendering “such judgment as the law requires upon the facts in the report as it may be corrected.” Practice Book § 443; see also Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989) (discussing attorney trial referees). Thus, it was bound by the subordinate facts found by the panel, but was not bound by the arbitrators’ legal conclusions, if any. Dills v. Enfield, supra; Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 509-10, 508 A.2d 415 (1986).

The trial court disallowed damages resulting from the gas company delay after DOT objected to the report for its failure to take into account a “no damages for delay” clause in the contract. The clause, contained in special provision 1.05.06 of the contract, stated: “The Contractor shall schedule his operations in such a manner as to minimize interference with the operation of the forces of utility companies or municipalities in effecting the installation of new facilities as shown on the plans or relocation of their existing facilities. The Contractor shall consider in his bid all permanent and temporary utility appurtenances in their present or relocated positions and installation of new facilities as required for the project; and no additional compensation will be made for delays, inconvenience or damage sustained by him due to interference from the above-noted utility appurtenances or the operation of installing or moving them.” (Emphasis added.) The arbitrators’ report omitted any discussion of this provision, but the contract as a whole was included in the corrected report as an exhibit. The trial court construed the contract to prevent White Oak from claiming damages incurred as a result of the gas company delay, and thus, pursuant to Practice Book § 440, sustained DOT’s objection to the finding of liability as “not properly reached on the basis of the subordinate facts found.”

White Oak does not contest the trial court’s conclusion that “no damages for delay” clauses are generally valid and enforceable and are not contrary to public policy. See 5 A. Corbin, Contracts § 1068, note 87; annot., Validity and Construction of “No Damage” Clause With Respect to Delay in Building or Construction Contract, 74 A.L.R.3d 187. Rather, White Oak maintains that the delay in this case falls within the exceptions to the enforceability of such clauses, and urges us to adopt the list of such exceptions recently enunciated by the New York Court of Appeals in Corinno Civetta Construction Corporation v. New York, 67 N.Y.2d 297, 493 N.E.2d 905, 502 N.Y.S.2d 681 (1986). We agree with the trial court that, although Corinno Civetta Construction Corporation’s statement of the law should be followed in Connecticut, the delay does not fall within the exceptions enumerated in that case.

In Corrino Civetta Construction Corporation v. New York, supra, the New York Court of Appeals rejected a sewer construction company’s claim that it was entitled to damages for delay caused, in part, by the defendant city’s moratorium on street openings, notwithstanding the presence of a “no damages for delay” clause contained in its contract. Considering the reach of the “no damages for delay” clause, the court held: “Generally, even with such a clause, damages may be recovered for: (1) delays caused by the contractee’s bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee’s breach of a fundamental obligation of the contract.” Id., 309. Applying these exceptions, the New York Court of Appeals concluded that the city was not willful, malicious, or grossly negligent in refusing to authorize additional overtime so that the project could be completed before the moratorium went into effect, and that a contract clause proscribing work during the moratorium demonstrated that such a delay had been expressly contemplated by the parties.

White Oak first claims that the gas company delay was caused by DOT’S “grossly negligent” conduct or conduct amounting to a “material breach” of the contract. White Oak contends that DOT was responsible for the delay because another clause in the contract provided: “It will be the State’s duty to notify all utility companies, all pipeline owners, or other parties affected, and to have all necessary adjustments of the public or private utility fixtures, pipelines, and other appurtenances within or adjacent to the limits of construction, made as soon as practicable, when such changes are required by the State.” White Oak maintains that DOT’S failure to effectuate a timely relocation by the gas company was a breach of its contractual duties and grossly negligent. We disagree.

The express terms of the contract delineate DOT’s duties with respect to coordination with utility companies. DOT was required only to notify utility companies of required changes and to “have” required adjustments (e.g., relocation of a gas main) “made as soon as practicable.” The arbitration panel made no finding that DOT breached this obligation. Its only finding with respect to the gas company was that the “plaintiff had reasons to expect that the gas main . . . would be removed upon the installation of the regulator and piping at the intersection of Peck and Short Streets.” It did not make any finding that DOT had failed to notify the gas company. It did not make any finding that the gas main relocation occurred later than was “practicable.” On the facts presented to it by the arbitrators’ report, the trial court could not have held that DOT breached its obligation under this provision or acted with gross negligence or in bad faith. Practice Book § 439; Wixner v. Wixner, 154 Conn. 703, 704, 223 A.2d 807 (1966).

White Oak’s next argument is that the gas company delay was “uncontemplated.” It points to another provision of the contract providing that “[t]he existing gas main on Elm Street between Columbus Boulevard and the north project limit cannot be abandoned prior to the installation of a proposed regulator and piping at the intersection of Peck and Short Street (State Project 88-48) by the Connecticut Natural Gas Corp.” (emphasis added) and to the arbitrators’ finding that “[w]hen the contract was awarded to the plaintiff in April of 1974, the plaintiff had reasons to expect that the gas main on Elm Street between Columbus Boulevard and the north project limits would be removed upon the installation of the regulator and piping at the intersection of Peck and Short Streets.”

White Oak’s reasoning is flawed. As the Corinno Civetta Construction Corporation court explains, the exception for “uncontemplated” delays “is based on the concept of mutual assent. Having agreed to the exculpatory clause when he entered into the contract, it is presumed that the contractor intended to be bound by its terms. It can hardly be presumed, however, that the contractor bargained away his right to bring a claim for damages resulting from delays which the parties did not contemplate at the time.” (Emphasis added.) Corinno Civetta Construction Corporation v. New York, supra, 310. For a delay to be uncontemplated, it must be uncontemplated by both parties, or more objectively stated, must not be “reasonably foreseeable.” Id. The arbitrators did not make any finding that such a delay was not reasonably foreseeable. The “no damages for delay” clause itself indicates that both parties “contemplated” similar delays; it specifically states that “no additional compensation will be made for delays . . . due to interference from . . . the operation of installing or moving [the above-noted utility appurtenances].” As the New York Court of Appeals held in Corinno Civetta Construction Corporation, the presence of such language demonstrates that this type of delay was contemplated by the parties.

White Oak’s fall-back position, that it was not required to anticipate an “inordinate” delay, is similarly unfounded. There is no finding that the delay was “inordinate” nor can we conclude as a matter of law that the period of approximately six months during which White Oak was impeded in the performance of its work was so unreasonable as to exceed the mutual contemplation of the parties. While “no damages for delay” clauses are inapplicable to delays so great that they are equivalent to abandonment of a contract; see annot., 74 A.L.R.3d 187, 226-27, supra; White Oak does not argue that the delay was of that magnitude. There is nothing in the findings or the contract to indicate that the delay resulting from the gas line relocation does not fall within the scope of the “no damages for delay” clause or that it was not contemplated by both parties. The trial court’s exclusion of damages caused by the gas company delay, including home office overhead, was correct.

In calculating the amount of damages to be excluded by the “no damages for delay” clause, the trial court excluded (1) the cost of sandblasting and repainting diaphragms and beams, in the amount of $44,652.69, required because of the delay associated with the gas line, and (2) 186 days of home office overhead, or $386,694. It did not, however, reduce the damages calculated for labor cost increases, project overhead, idle equipment, and additional bond premium. In its cross appeal, DOT claims that these elements of damage should also have been adjusted to exclude the 186 days of delay damages that were due to the gas line delay. We agree.

The trial court’s ruling that damages caused by the gas line delay should be excluded would have little significance if part of the damages attributed to that delay were, nevertheless, awarded. The trial court should have made the following additional reductions: $35,637.60 of labor cost increase due to wage increases; $89,618.52 of project overhead; $70,875.30 of idle equipment damages; and $2142.72 of additional bond premium. These reductions are in addition to the reductions made, correctly, by the trial court.

II

Although the trial court disallowed the damages caused by the gas company delay, it allowed White Oak damages for delays that were caused by DOT’s delay in furnishing controls for the construction of temporary railroad lines and the ensuing winter delay. DOT did not challenge the finding that it was liable for damages resulting from these delays, but objected to the calculation of the damages.

While White Oak waited for DOT to furnish the controls, its machines stood idle. The loss of use of the machines was an element of White Oak’s damages. The arbitrators determined that these damages amounted to $298,741.88. They reached this conclusion by multiplying the number of days machines were idle by rental rates found in the “blue book,” or “Standard Schedule of Equipment Rental Rates” on file with the highway department, a compilation of equipment rental rates charged by dealers of equipment for the use of various types of equipment. The contract specified that these “blue book” rates were to be used in measuring extra and cost-plus work performed by White Oak. The trial court took notice that “blue book” rates, being rental rates, do not, however, take into account the fact that machines standing idle do not suffer wear and tear. DOT therefore objected to the amount of idle equipment damages and requested the trial court to reduce those damages by 50 percent to reflect the lack of wear and tear.

In Chicago College of Osteopathic Medicine v. George A. Fuller Co., 776 F.2d 198 (7th Cir. 1985), the Seventh Circuit Court of Appeals upheld a trial court’s action in discounting idle equipment damages by 50 percent to reflect lack of wear and tear. Such a 50 percent reduction is the standard method used by the federal courts for making such an adjustment. See W.G. Cornell Co. v. Ceramic Coating Co., 626 F.2d 990, 994 (D.C. Cir. 1980); Cornell Wrecking Co. v. United States, 184 Ct. Cl. 289, 291 (1968); Laburnum Construction Corporation v. United States, 325 F.2d 451, 459 n.10 (Ct. Cl. 1963); Warren Bros. Roads Co. v. United States, 105 F. Sup. 826, 830 (Ct. Cl. 1952); Morrison-Knudsen Co. v. United States, 84 F. Sup. 282, 288 (Ct. Cl. 1949); Brand Investment Co. v. United States, 58 F. Sup. 749, 751 (Ct. Cl. 1944), cert. denied, 324 U.S. 850, 65 S. Ct. 684, 89 L. Ed. 1410 (1945). The trial court concluded that such a reduction was required as a matter of law, and accordingly reduced the idle equipment damages by $149,370.94.

Without deciding whether our courts should follow the federal practice of applying a 50 percent reduction for lack of wear and tear in all such cases, we agree that the trial court was correct in making the reduction in this case. White Oak did not dispute that its machines were spared the wear and tear of use in construction. Some reduction was required as a matter of law. It was not unreasonable for the trial court to follow the well established practice of the federal courts in similar situations.

In its brief White Oak maintains that the monthly “blue book” rental rate incorporates a reduction for idle equipment not included in the daily rate because of the likelihood that equipment rented monthly will not be used so continuously as when it is rented daily. White Oak does not refer to any evidence from which the appropriate allowance for wear and tear could have been calculated. Since White Oak in its calculation made no allowance whatsoever for lack of wear and tear while its equipment was idle, the trial court, recognizing that such an allowance was necessary, properly utilized the only source available to it, the federal practice of making an allowance of 50 percent in the rental rates, whether daily or monthly so far as the cases indicate.

Ill

The final issue before us is whether the state is liable for prejudgment interest on the amounts due the plaintiff, and if so, on which amounts and at what rate.

White Oak claimed that it was entitled to prejudgment interest under the general interest statute, General Statutes § 37-3a, or, in the alternative, under a section of the highway construction and maintenance statutes, General Statutes § 13a-96. The trial court first concluded that a prejudgment interest award under § 37-3a was barred by the doctrine of sovereign immunity, and went on to consider the claim for interest under § 13a-96. In its second analysis, the court declined to award prejudgment interest for two reasons: (1) the arbitration panel, as factfinder, made no finding that White Oak was entitled to interest; and (2) § 13a-96 interest was not available on untimely progress payments actually made before acceptance of the project and sixty days thereafter. We will consider each portion of the trial court’s analysis in turn.

A

Section 37-3a permits recovery of interest “in civil actions or arbitration proceedings under chapter 909,” at a maximum rate of 10 percent, “as damages for the detention of money after it becomes payable.” Judicial gloss applied to this language since the statute was first enacted in 1873 (when the maximum interest rate allowed was 7 percent); General Statutes (1875 Rev.) title 18, c. 5, § 2; limits it to damages for the detention of money “wrongfully withheld.” See, e.g., Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 287 A.2d 374 (1971).

“We have long recognized the common-law principle that the state cannot be sued without its consent.” Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981); Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 355 (1977); Textron, Inc. v. Wood, 167 Conn. 334, 339, 355 A.2d 307 (1974); Bergner v. State, 144 Conn. 282, 284, 130 A.2d 293 (1957). Thus, sovereign immunity shields the state from liability under a statute of general application, such as § 37-3a. Moreover, applying the principle that waivers of sovereign immunity are to be applied strictly, we have held that even where the state consents to suit, it does not consent to liability unless such consent is disclosed “ ‘by the use of express terms or by force of a necessary implication.’ ” Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983), quoting Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Bergner v. State, supra, 285-86. Accordingly, in Struckman v. Bums, 205 Conn. 542, 559-60, 534 A.2d 888 (1987), we held that General Statutes § 13a-144, which allows a person injured by means of a defective highway to sue the commissioner of transportation, did not permit an award of prejudgment interest against the state in the absence of express language to that effect. See also 72 Am. Jur. 2d, States § 89. Thus, we agree with the trial court that the state would be immune from an award of interest under § 37-3a in the absence of statutory authorization.

General Statutes § 4-61, pursuant to which this suit was brought, provides such authorization: “All legal defenses except governmental immunity shall be reserved to the state.” (Emphasis added.) Section 13a-144, the statute involved in Struckman v. Bums, supra, contained no such explicit provision. Moreover, the legislative history of § 4-61 clearly demonstrates that the legislature did not intend the state to retain immunity against the imposition of interest. In its earlier version, § 4-61 provided: “All legal defenses except governmental immunity shall be reserved to the state and no interest or costs shall be included in any judgment against the state.” (Emphasis added.) General Statutes (1958 Rev.) § 4-61. In 1961, the statute was amended to delete the emphasized clause. Public Acts 1961, No. 555. If the legislature did not intend to waive immunity as to interest and costs, it would not have amended the statute to that effect.

The language of § 4-61 is so plain that the state’s liability for prejudgment interest awards has not been challenged in any published decision since the statute was amended, almost thirty years ago. Indeed, we implicitly recognized that sovereign immunity is no defense to an award of interest in an action under § 4-61 in Southern New England Contracting Co. v. State, 165 Conn. 644, 665, 345 A.2d 550 (1974), when we discussed interest as an element of the damages that may be payable by the state in such an action. See also Walter Kidde Constructors, Inc. v. State, 37 Conn. Sup. 50, 434 A.2d 962 (1981).

B

Having concluded that § 4-61 puts the state in the same position as a private party with respect to an award of prejudgment interest under § 37-3a, we next consider whether the trial court’s reasons for refusing to award interest under § 13a-96 would also justify refusing to award interest under § 37-3a.

The trial court split White Oak’s claims for prejudgment interest into two categories: (1) interest on untimely progress payments that the state was required to make before completion of the contract; and (2) interest on everything else. It rejected White Oak’s second category of claims for interest because the arbitration panel, which it analogized to a jury, had not made a specific finding that White Oak was entitled to interest.

The trial court misconstrued its role in reviewing an arbitrator’s report required by General Statutes § 13b-57a. An arbitration panel sitting pursuant to that statute finds only subordinate facts, as the court’s own order referring the issues to arbitration recognized. It is not analogous to a jury empowered to decide liability and award damages. It finds facts only, and, unlike a jury, does not apply the law to the facts. Section 13b-57a provides that judgment on an arbitrators’ award shall be rendered “according to law and the facts found.” (Emphasis added.) Once the panel has presented the judge with the subordinate facts, the judge sits as he does in a trial to the court when the facts have been stipulated. See General Statutes § 4-61 (“[s]uch action [under § 4-61] shall be tried to the court without a jury”). The report’s silence regarding White Oak’s entitlement to damages has no relevance. White Oak’s complaint, requesting prejudgment interest, remained before the court for its decision on the basis of the facts stated in the report.

The trial court also declined to award interest as damages for the state’s failure to make progress payments on time, as required by the contract. It concluded that § 13a-96 prohibited interest for late payments so long as such payments were made within sixty days following completion of the contract. Because the progress payments were made within that period of time, the court held that White Oak could not collect interest for the state’s delay in payment.

As noted above, § 13a-96 simply authorizes the highway commissioner to pay a contractor 6 percent interest on a late payment even if the contractor does not file suit under § 4-61. It does not limit a contractor’s right to seek interest under § 37-3a as authorized by § 4-61. Section 37-3a plainly states that it applies “[e]xcept as provided in sections 37-3b, 37-3c and 52-192a.” It makes no such exception for § 13a-96. “ ‘Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive.’ ” State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991) (“[e]xpressio unius est exclusio alteráis”).

“It is a cardinal rule of statutory construction that a legislative body does not intend to adopt useless legislation.” J & M Realty Co. v. Norwalk, 156 Conn. 185, 192, 239 A.2d 534 (1968). Even when a contractor brings suit under § 4-61, § 13a-96 acts to guarantee interest on amounts payable “under the contract” not paid within sixty days after completion and acceptance. The language in § 13a-96 concerning an award of interest is mandatory, whereas the language of § 37-3a is permissive. Thus, if White Oak had indeed not received payment within sixty days after completion of the contract, it would have been entitled, under § 13a-96, to 6 percent interest on those unpaid amounts; it may receive interest as provided in § 37-3a only if the court in its discretion chooses to make such an award.

As it is, White Oak should be awarded interest on the late progress payments under § 37-3a unless the trial court in its discretion believes that to comport with “the demands of justice”; Cecio Bros., Inc. v. Feldmann, supra, 275; such an interest award should not be made. See, e.g., Newington v. General Sanitation Service Co., 196 Conn. 81, 90-91, 491 A.2d 363 (1985). The trial court should have considered the claim for prejudgment interest on its merits and if it concluded that the amounts for which DOT was liable were both “payable” and “wrongfully” withheld, should have awarded prejudgment interest at the rate set in the then effective version of § 37-3a.

We affirm the challenged portions of the judgment of the trial court with respect to (1) the reduction of the delay damages for the gas company delay and (2) reduction of the idle equipment damages. We reverse the portion of the judgment concerning DOT’s immunity from prejudgment interest under General Statutes § 37-3a. We sustain DOT’s cross appeal seeking a reduction of certain elements of damages resulting from the gas company delay. We therefore remand the case with direction to reduce the damages in accordance with this opinion and for consideration of the merits of White Oak’s claim for prejudgment interest under § 37-3a.

In this opinion the other justices concurred.

       Although the project was completed in November, 1979, it was not until November 6, 1981, that the DOT acknowledged completion by issuing its formal “Certificate of Acceptance of Work and Acceptance of Project.” The plaintiffs action, filed on October 18,1984, less than three years from the issuance of the certificate, therefore complied with the limitation period on actions under General Statutes § 4-61. White Oak had previously, on October 25,1983, delivered to the state a notice of claim, thereby complying with the limitation period on claims under General Statutes § 4-61.

       At the time the action was instituted, General Statutes (Rev. to 1983) § 4-61 provided: “actions against the state on highway and public works contracts. Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, repair or alteration of any state highway, bridge, building or other public works may, in the event of any disputed claims under such contract, bring an action against the state to the superior court for the judicial district of Hartford-New Britain for the purpose of having such claims determined, provided notice of the general nature of such claims shall have been given in writing to the department administering the contract not later than two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor. No action shall be brought under this section later than three years from the date of such acceptance of the work by the agency head as so evidenced. Acceptance of an amount offered as final payment shall not preclude any person, firm or corporation from bringing a claim under this section. Such action shall be tried to the court without a jury. All legal defenses except governmental immunity shall be reserved to the state. Any action brought under this section shall be privileged in respect to assignment for trial upon motion of either party.”

       At the time the action was instituted, General Statutes (Rev. to 1983) § 13b-57a provided: “reference by court to arbitration panel. In any action brought under section 4-61 concerning design, construction, repair or alteration of any state highway or bridge, the court shall refer any case pending before such court in which the issues have been closed to a panel of three arbitrators appointed under the construction industry rules of the American Arbitration Association, said arbitrators to hear and report to the court the facts in such case. Each arbitrator shall be compensated in accordance with the rules of the American Arbitration Association and all hearings shall be conducted in accordance with such rules except that the rules of evidence in contested cases as set forth in section 4-178 shall prevail. The arbitrators shall report specifically the facts relevant to the issue and establish (sic) by the evidence and, upon the acceptance of any report, judgment shall be rendered thereon by the court according to law and the facts found. Any arbitrator appointed under this section while engaged in the hearing of such action, shall have the same power and authority over witnesses as the superior court.”

       A highway department standard specification that made up part of the contract provided, in pertinent part: “[U]pon receipt of written notice from the Contractor of the existence of causes over which said Contractor has no control and which may delay the completion of the said work, the Commissioner may, at his discretion, extend the period herein before specified for the completion of said work, and in such case the Contractor shall become liable for said liquidated damages for delays commencing from the date on which said extended period shall expire.”

       After the regulators were installed, Connecticut Natural Gas removed part of the line, north of the North Street area, but did not complete the removal.

       “[Practice Book] Sec. 440. objections to acceptance of report
      “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
      “If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the committee, the adverse party shall, within two weeks after the filing of the objection, plead to it by a motion to strike, answer or other proper pleading.”

       We do not consider when, if ever, delay caused by events beyond the control of the state or other contractee could ever support an award of delay damages. See 2 S. Stein, Construction Law (1990) f 6.11.

       The “no damages for delay” clause does not deprive White Oak of all relief. Although White Oak is not entitled to damages caused by the delay in relocating the gas line, it was relieved of its obligation to finish the project within the original 1650 day limit and thus entitled to retrieve the $87,000 in liquidated damages improperly withheld by the state. In effect, the contract gave WTiite Oak one remedy—an extension of time—instead of the remedy of damages (at least as to delays caused by utility alteration delays). Compare, e.g., Taylor-Fichter Steel Construction Co. v. Niagara Frontier Bridge Commission, 261 App. Div. 288, 291, 25 N.Y.S.2d 437, aff’d, 287 N.Y. 669, 39 N.E.2d 290 (1941); F. N. Lewis Co. v. State, 132 Misc. 688, 689, 230 N.Y.S. 517 (1928); A. B. Barr & Co. v. State, 127 Misc. 75, 76, 215 N.Y.S. 313 (1926) (contract clauses barred recovery for delays resulting from delays by third parties; contractor’s sole remedy was an extension of time in order to avoid liability for his own delayed performance).

       The state might, of course, be liable for such sums if the contract provided that the state would pay for increases in certain costs after the commencement of the project. In such a case, the sums due would not be “damages” but amounts due under the contract. The first count of White Oak’s original complaint sought increased common carrier charges based on a contractual provision providing for such increases.

       White Oak has not contested the calculations presented by DOT in its cross appeal, but has argued only that the “no damages for delay” clause should not be enforced.

       “[General Statutes] Sec. 37-3a. rate recoverable as damages. Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable except as otherwise provided with respect to demand obligations in section 42a-3-122 (4) (a). Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”
      Until 1979, § 37-3a set the interest rate at 6 percent. General Statutes (Rev. to 1977) § 37-3a. Thereafter, the rate was 8 percent; Public Acts 1979, No. 79-364; until 1983, when it was increased to 10 percent. Public Acts 1983, No. 83-267. Thus, depending when the amounts White Oak claimed were due, a different rate of interest would apply. See Northwestern Electric, Inc. v. Rozbicki, 6 Conn. App. 417, 428, 505 A.2d 750 (1986).

       “[General Statutes] Sec. 13a-96. payment to contractor under highway contract. The commissioner shall pay any sum due any contractor under any contract awarded by him not later than sixty days after its completion and acceptance. After such sixty-day period, interest shall begin to run in favor of the contractor at the rate of six per cent per annum on the unpaid balance.”

       Because we hold that White Oak was not barred from seeking prejudgment interest according to General Statutes § 37-3a, the trial court’s analysis of General Statutes § 13a-96 is moot. That analysis is, however, equally applicable to the issue of interest under § 37-3a and therefore likely to be reapplied on remand. For that reason, we will also consider the trial court’s reasoning with respect to § 13a-96.

       “[General Statutes] Sec. 13a-144. damages for injuries sustained on state highways or sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       We note that General Statutes §’ 13a-96 sets the applicable interest rate at 6 percent, whereas General Statutes § 37-3a now sets the rate at 10 percent (the rate was 6 percent prior to October 1,1979, and 8 percent between that date and October 1, 1983). Were § 13a-96 to preempt § 37-3a with regard to interest due highway contractors, it would have the bizarre effect of limiting highway contractors to 6 percent interest while allowing building contractors, who also may sue pursuant to General Statutes § 4-61, to collect 10 percent interest. As the state itself explains, however, § 13a-96 “is not a broad form of statutory authority to allow interest as damages, as is § 37-3a. Rather, it is . . . limited in its operation to the unpaid balance, due under a contract, which remains unpaid for more than sixty days after completion and acceptance of the contract.” Section 13a-96 is directed to the commissioner of transportation, whose duty is to authorize payments in accordance with the contract provisions, not to pay damages for breach of contract.

       See text at footnote 3, supra.

         See footnote 15, supra.

       We note that sums may be “payable” even if they were not, strictly speaking, liquidated until the judgment. See H. Oleck, Damages to Persons and Property (1955) § 296, p. 626. The test, where the sum reflects compensation for a pecuniary injury, is whether the sums were not so uncertain that a defendant could not have been on notice as to the amount it was required to pay. See W. Hale, Law of Damages (2d Ed.) § 67; 1 J. Sutherland, Law of Damages (4th Ed.) § 347. The sums due White Oak became “payable” when it submitted its requisitions to the state, allowing for the terms of payment prescribed by contract or statute. For some items, such as the amounts claimed for extra work ordered by the state, that date would likely be when the work was performed, even before the final acceptance of the contract; for others, such as delay damages, the date might be the date White Oak gave the state notice of the amounts it claimed as delay damages.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    William Moshier v. Roger Goodnow et al.
    (14125)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Borden, Js.

      Argued December 4, 1990
    decision released February 5, 1991

      Jeremiah Donovan, with whom was Terry Sablone, for the appellants (defendants).

      Lynda B. Munro, with whom was Michael J. Wells, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is the scope of the taxing authority retained by a town’s board of selectmen after the town’s electors have voted to reject town budgets recommended by the town’s board of finance. The plaintiff, William Moshier, a taxpayer of the town of Old Saybrook, filed a complaint alleging that, because the town’s electors had defeated four proposed 1990-91 budgets, the defendants, the town’s board of selectmen, should be enjoined from collecting any taxes in accordance with a July 18, 1990 tax levy based on estimated unreimbursed expenditures for the 1990-91 fiscal year. After a hearing, the trial court issued an order temporarily enjoining the defendants from collecting any taxes. Pursuant to General Statutes § 52-265a, the defendants received permission to file an immediate expedited appeal from this interlocutory order. We now reverse the judgment of the trial court and direct that judgment be rendered in favor of the defendants.

I

On October 25,1990, subsequent to the filing of the defendants’ appeal, the electors of the town approved a 1990-91 fiscal year budget. Pursuant to the new budget, the town’s board of finance that same day set a new mill rate identical to that which had earlier been established in the defendants’ contested rate bill of July 18,1990.* *** Since the plaintiff’s complaint does not challenge the validity of .the October 25 budget or the new mill rate, the first issue that we must decide is whether the defendants’ appeal must be dismissed as moot.

The standards governing mootness are well established. Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted. Sobocinski v. Freedom of Information Commission, 213 Conn. 126,134-35, 566 A.2d 703 (1989); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249-50, 440 A.2d 310 (1982); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). The mill rate that the trial court’s interlocutory injunction rendered unenforceable has now been validated, for the future, by the action of the town’s electors. This ratifying action, which indubitably requires dissolution of the injunction against collecting further taxes, raises a serious question about the continued viability of any part of the defendants’ appeal.

The parties in their briefs urge us nonetheless to reach the merits of the appeal on the theory that this case is an instance of a moot question that is “capable of repetition, yet evading review.” See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); Sobocinski v. Freedom of Information Commission, supra, 135; Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981). In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also “(1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future.” Shays v. Local Grievance Committee, supra, 572-73; Waterbury Hospital v. Connecticut Health Care Associates, supra, 253 n.5; Delevieleuse v. Manson, supra. The present appeal does not satisfy either of the latter two criteria: no ongoing program of the state is at issue and the future relationship between this taxpayer and his town’s budgets is speculative at best. Although straitened economic times may portend increased taxpayer resistance to rising property tax rates, that political fact of life does not, in and of itself, prevent an appeal from becoming moot if no actual or practical relief can follow from our determination.

At oral argument, however, the plaintiff suggested a practical consequence that might attach to a decision in this appeal. Having failed to pay the local taxes as assessed, the amount of his liability for interest will depend upon the date on which the effective mill rate was legally set. Because his interest liability will be greater if the defendants had the independent authority to set the mill rate in July than if that authority depended upon the favorable town referendum in October, he claims that the defendants’ appeal is not moot. The defendants have not challenged the accuracy of the plaintiff’s representation about his tax delinquency or its consequences. Taking this fact in conjunction with the importance of the issue raised, and the difficulty of timely appellate review, we conclude that the relief we might grant is not so de minimis as to require us to dismiss the defendants’ appeal.

II

On the merits, the dispositive issue is one of statutory construction. The defendants contend that, despite four town referenda rejecting budgets proposed by the town’s board of finance, General Statutes §§ 7-344 and 12-123 authorized them to set a mill rate and to levy taxes based on an informed estimate concerning projected town expenditures for 1990-91. Relying on figures generated by the board of finance about estimated expenditures, reduced by estimated revenues from nontax sources and adjusted for the estimated collection rate, they determined that a mill rate of 13.5 would generate the necessary tax revenues.* ** The plaintiff has challenged neither the mathematical accuracy of the defendants’ calculations nor the necessity of the expenditures proposed to be financed. He maintains instead that General Statutes § 7-405 limited the scope of the defendants’ authority to the setting of interim budgets based on the line item limits for 1989-90. The trial court, agreeing with the plaintiff, concluded that “[t]he board of selectmen was in error in adopting the board of finance’s recommendation of July, 1990. The board of selectmen should have adopted the budgetary items from the fiscal year 1989-90.” We disagree.

Only one Connecticut case has considered the scope of municipal authority to fix a mill rate in the face of formal rejection of a proposed town budget. In State ex rel. Feigl v. Raacke, 32 Conn. Sup. 237, 241-44, 349 A.2d 150 (1975), the court construed § 12-123 to sustain the discretionary authority of a board of selectmen to establish a proper mill rate for current expenses in such circumstances. The court permitted the selectmen to base their mill rate on the operating budget earlier requested and recommended by the board of finance pursuant to § 7-344, even though that recommended budget had been disapproved by the town meeting. Id., 239.

The plaintiff contends that, even if we were inclined to follow Feigl, its holding has been undermined by subsequent statutory revision. When a town has failed “to lay necessary taxes or to lay a tax . . . sufficient to pay the current expenses of such town,” § 12-123 authorizes the town’s selectmen to “make a rate bill upon its list last completed for the amount necessary, or for an amount sufficient to pay the deficit in such current expenses . . . .” The plaintiff maintains that the meaning of “current expenses” in § 12-123 must be determined by reference to a 1977 amendment to § 7-405. Public Acts 1977, No. 77-384. That section addresses the authority of a municipality’s disbursing officers to make necessary expenditures whenever “annual appropriations have not been made by a municipality before the beginning of any fiscal year.” For the first ninety days, § 7-405 permits necessary expenditures to be made in accordance with amounts authorized by the municipal “appropriating body or by the board of finance or other budget-making authority.” After the initial ninety day period, however, § 7-405 limits even authorized disbursements to “appropriations specified in budgetary line items for the previous fiscal year.” When Feigl was decided, prior to the 1977 amendment to § 7-405, the statutes contained no provisions for ongoing municipal expenditures beyond the initial ninety day period. The plaintiff maintains that, since 1977, the authority conferred upon selectmen by § 12-123 to levy taxes to meet “current expenses” must be read in pari materia with § 7-405 so as to permit only an initial ninety day budget and thereafter to permit only monthly determinations of a mill rate set by reference to “budgetary line items for the previous fiscal year.” We are unpersuaded.

The linchpin of the plaintiffs argument is his assertion that §§ 12-123 and 7-405 jointly address and circumscribe the discretion of selectmen to levy taxes. The language of the two statutes belies this argument. The authority conferred upon selectmen by § 12-123 is on its face greater than that conferred upon disbursing officers by § 7-405. Under § 12-123, selectmen have unlimited authority to “make a rate bill upon [the] list last completed” to pay necessary expenses when, as in this case, the town has “failed to lay necessary taxes.” The selectmen’s authority to remedy a deficit in funding for “current expenses” arises only when the town has failed to lay a tax “sufficient to pay” such expenses, i.e., when a budget properly voted is insufficient to meet town needs. There is nothing in § 12-123, read in its entirety, to suggest a limiting construction for “current expenses.” Taxing authorities are generally afforded broad discretion in setting tax rates. 16 E. McQuillin, Municipal Corporations (3d Ed. 1984) § 44.100, and cases therein cited. By contrast, nothing in § 7-405 suggests that disbursing officers are granted, or should be granted, similarly broad authority. The legislative history of the 1977 amendment to § 7-405 makes clear that its purpose was to provide some flexibility for a board of finance to authorize interim disbursements after a ninety day temporary budgetary process had failed to produce a permanent budget. The constraints contained therein were not addressed to the taxing authority of the board of selectmen.

We are equally unpersuaded that the 1977 amendment to § 7-405 was a legislative effort to overturn Feigl. Had the legislature intended such a result, the logical path would have been to amend § 12-123 or § 7-344. Failing that, the legislative history would have disclosed some reference to Feigl, to an intent to limit the authority of boards of selectmen, or, finally, to a perceived connection between the amendment to § 7-405 and the unamended § 12-123 or § 7-344. The legislative record indicates, to the contrary, that the focus of the legislative deliberations was the scope of additional authority for interim financing that might be conferred on disbursing agents and boards of finance, and not the authority previously conferred on boards of selectmen.

We conclude that Feigl correctly construed § 12-123 as vesting broad statutory authority in boards of selectmen to set tax rates for their towns when the defeat of a town budget has created a fiscal vacuum. Despite voter disapproval, the legislature provided a mechanism by which presently accruing town bills could be met even if they exceeded a prior year’s budgetary line item. Such a construction of § 12-123 does not leave a disapproving taxpayer remediless. In the event that a subsequently approved budget reduces the town’s authorized expenditures, a taxpayer may be entitled to recover excess assessments or to claim a corresponding reduction in his tax bill for the following tax year. See General Statutes § 7-344; Caulfield v. Noble, 178 Conn. 81, 85, 420 A.2d 1160 (1979). A taxpayer, however, has no statutory right to enjoin collection of taxes that are not an abuse of the broad discretion conferred upon boards of selectmen by § 12-123.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other justices concurred.

       Although the plaintiff sought to bring his action as a class action on behalf of all the taxpayers of the town of Old Saybrook, the trial court made no ruling concerning his request for class action certification.

       The defendants are Roger Goodnow, Carl Von Dassel and Robert Fish, individually and as the board of selectmen for the town of Old Saybrook, and Olive D. Mulvihill, individually and as tax collector for the town of Old Saybrook.

       General Statutes § 52-265a provides: “direct appeal on questions involving the public interest, (a) Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the superior court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the supreme court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based.
      “(b) The chief justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
      “(c) Upon certification by the chief justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the chief justice, who shall thereupon call a special session of the supreme court for the purpose of an immediate hearing upon the appeal.
      “(d) The chief justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”
      The “order or decision” to which § 52-265a (a) refers need not be a final judgment. Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984). Accordingly, this appeal is not jurisdictionally defective even though the defendants are appealing a temporary injunction, which, as an interlocutory order, would otherwise not be immediately appealable. Id.

       Although the trial court denied the defendants’ application for a stay of the temporary injunction pending the resolution of the defendants’ appeal, this court overturned that ruling and granted the stay. The parties then agreed that moneys received by the tax collector between October 11,1990, the date of the injunction, and October 22,1990, the date of our order granting the stay, would be held in escrow pending the final resolution of this appeal.

       On October 25,1990, the electors of the town of Old Saybrook by referendum approved a 1990-91 budget in the amount of $17,152,153. That amount was $444,600 less than the disputed estimated expenditure figure of $17,596,753 used by the board of selectmen in setting a mill rate and levying a tax on July 18,1990. Following the adoption of the October 25, 1990 budget, the board of finance nonetheless set the same mill rate of 13.5 that had earlier been set by the board of selectmen. This choice of mill rate reflected decreases in projected revenues, downward adjustments to the grand list, and reconsideration of the propriety of forecasting a 95 percent collection rate.

       General Statutes § 7-344 provides in relevant part: “appropriations, laying OF TAX. . . . Immediately after the board of tax review has finished its duties and the grand list has been completed, the board of finance shall meet and, with due provision for estimated uncollectible taxes, abatements and corrections, shall lay such tax on such list as shall be sufficient, in addition to the other estimated yearly income of such town and in addition to such revenue surplus, if any, as may be appropriated, not only to pay the expenses of the town for such current year, but also to absorb the revenue deficit of such town, if any, at the beginning of such current year. . . .”
      General Statutes § 12-123 provides: “selectmen to make rate bill WHEN TOWN FAILS to lay sufficient tax. When any town has failed to lay necessary taxes or to lay a tax which, in addition to the other estimated yearly income of the town, is sufficient to pay the current expenses of such town, its selectmen shall make a rate bill upon its list last completed for the amount necessary, or for an amount sufficient to pay the deficit in such current expenses, and cause the same to be collected as other taxes.”

       One significant factor leading to an increase in projected expenditures for the fiscal year 1990-91 was the increase in the town’s bonded indebtedness that had previously been approved by town referenda. The named defendant testified, without contradiction, that the town’s required payments of principal and interest had increased by about $1,200,000, from $556,000 for 1989-90, to $1,770,153 for 1990-91.

       General Statutes § 7-405 provides: “expenditures before adoption of budgets. When annual appropriations have not been made by a municipality before the beginning of any fiscal year, the disbursing officers may make necessary expenditures during the period of ninety days after the beginning of such year on proper warrants for purposes and in amounts authorized by the appropriating body or by the board of finance or other budget-making authority. When annual appropriations have not been made by such municipality before the end of such ninety-day period, the disbursing officers may make necessary expenditures during successive monthly periods in such year on proper warrants for purposes and in amounts authorized by the appropriating body or by the board of finance or other budget-making authority within the limits of appropriations specified in budgetary line items for the previous fiscal year. For this purpose, necessary borrowing may be authorized by resolution of the budget-making authority, provided all such borrowing shall mature and be payable not later than the end of the fiscal year for which such borrowings are made. Any notes so authorized may be issued and sold in the manner provided by such resolution. Such expenditures authorized by this section and interest costs and other expenses incidental to any such borrowing shall constitute the first charges against appropriations for the fiscal year in which they are made.”

       Committee Bill No. 719, which was the legislative antecedent of Public Acts 1977, No. 77-384, § 1, amending General Statutes § 7-405, never purported to amend General Statutes § 12-123. Early versions of the committee bill contained differing authorizations for interim tax levies by boards of finance, either at the same rate as in the previous year, or at a higher rate needed to pay necessary expenditures. The legislative record does not reveal why all references to interim tax levies were deleted in the bill as finally enacted. Senator Audrey Beck, a sponsor of the bill in its final form, indicated, however, that the bill was concerned with the authority of boards of finance rather than that of boards of selectmen. 20 S. Proc., Pt. 7,1977 Sess., p. 2525.


author: Covello, J. Shea, J.,

text:
    Jeffrey P. Ossen v. Gail Wanat et al.
    (13936)
    Peters, C. J., Shea, Glass, Covello and Santaniello, Js.

      Argued November 9, 1990
    decision released February 5, 1991

      F. Woodward Lewis, Jr., for the appellant (named defendant).

      Barry T. Pontolillo, for the appellee (plaintiff).
   Covello, J.

This is a summary process action involving a mobile home site. The trial court, Gaffney, J., rendered judgment for possession in favor of the plaintiff, Jeffrey P. Ossen. The defendants, Gail Wanat, Joseph Driscoll, Eugene Ellis and Laura Ellis, appealed to the Appellate Court. The dispositive issues are: (1) whether the trial court was required to determine the defendants’ constitutional claims within the context of a summary process action; and (2) whether the defendants were entitled to sell their mobile home on site pursuant to General Statutes § 21-79 during the pendency of the summary process action. We conclude that the Appellate Court correctly resolved both issues in favor of the plaintiff and therefore affirm the judgment of the Appellate Court.

In 1985, the plaintiff leased to the defendants a mobile home site in Three Oaks Mobilehome Park, Wallingford. On May 14,1988, the plaintiff served a notice to quit possession upon the defendants on or before June 16, 1988, claiming nonpayment of rent. On July 7, 1988, the plaintiff began the present action alleging the defendants’ continuing occupancy of the premises despite the passage of the time designated in the notice to quit and seeking a judgment of possession in accordance with the statute.

On August 15, 1988, the defendants moved for a stay of the proceedings and simultaneously sought permission to sell the mobile home on the leased premises in accordance with General Statutes § 21-79. On August 26, 1988, the trial court, Stanley, J., denied both motions.

On October 21,1988, the trial court granted the plaintiff’s motion to strike the defendants’ three special defenses including, inter alia, a claim of an unconstitutional taking, a violation of due process and a denial of equal protection, all in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 10 of the Connecticut constitution. At the same time, the trial court struck the defendants’ counterclaim that sought an injunction restraining the plaintiff’s interference with the defendants’ sale of their mobile home on the leased premises. On November 18, 1988, the trial court, Gaffney, /., rendered judgment for possession in favor of the plaintiff.

The defendants appealed to the Appellate Court, which thereafter affirmed the judgment of the trial court. Upon the petition of the defendant Gail Wanat (defendant), we granted certification limited to the issues of: (1) whether the trial court was required to determine the defendants’ constitutional claims within the context of a summary process action; and (2) whether the defendants were entitled to sell their mobile home on site pursuant to General Statutes § 21-79 during the pendency of the summary process action. We answer both questions in the negative and affirm the decision of the Appellate Court.

I

The defendant’s first claim is that the trial court was required to take up and address in the summary process action the constitutional issues raised in their first and second special defenses, and that the Appellate Court should not have concluded that the trial court was not required to do so.

“It has always been the policy of our law to limit the issues in an action of summary process to a few simple ones within the express scope of the statutory provisions.” Webb v. Ambler, 125 Conn. 543, 550-51, 7 A.2d 228 (1939). “Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.” Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953). “The purpose of summary process proceedings . . . is to permit the landlord to recover possession on termination of a lease . . . without suffering the delay, loss and expense to which he may be subjected under a common-law action. . . . The process is intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession.” Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973).

Concededly, statutory modifications have created new rights and remedies within the context of the landlord and tenant relationship. A tenant may now plead by way of special defense, first, that the landlord has breached an implied warranty of habitability, or second, that the landlord’s claim for possession is a retaliatory act motivated by the tenant’s attempt to correct substandard conditions on the leased premises. Despite these additional remedies, the legislature, in its recodification and reenactment of the entire summary process chapter, saw fit to leave in place provisions for an abbreviated return day, and an accelerated appearance, pleading and judgment procedure, all of which comport with earlier notions of the summary nature of these proceedings. The fact remains that unless the tenant can prove payment of rent, the existence of a lease, one of the special defenses above, or superior title in the premises, he or she must yield possession.

“We agree with the trial court’s conclusion that the constitutional issues that the defendants attempted to raise ‘are far beyond the scope of the statutory action that is before the Court.’ ” Ossen v. Wanat, 21 Conn. App. 40, 46, 571 A.2d 134 (1990).

II

The defendant next claims that the defendants were entitled to sell their mobile home on its site during the pendency of the summary process action and that the Appellate Court should not have affirmed the trial court’s decision not to permit this. In support of her position, the defendant relies upon General Statutes § 21-79. Section 21-79 provides in pertinent part: “(a) No owner or operator of a mobile manufactured home park shall require a resident . . . to remove the home from the development at the time such mobile manufactured home is sold . . . . (e) Any resident wishing to sell his or her home shall request a written statement of the [park] owner’s intentions regarding the condition of the home. Within twenty days after receipt of such a request, the owner shall approve the home’s condition for resale or deliver a written statement to the resident specifying the reasons” for denying approval. The defendant claims that they have complied with the provisions of § 21-79 and, therefore, have a right to sell the mobile home during the summary process action.

“Section 21-79 protects tenants at mobile home parks from being forced to sell to park owners at a substantial loss and as a consequence benefits many low income people who cannot otherwise afford to purchase more expensive housing.” Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 648, 546 A.2d 805 (1988), appeal dismissed, 489 U.S. 1002,109 S. Ct. 1104, 103 L. Ed. 2d 169 (1989). Section 21-79, however, does not lend support to the procedure advanced by the defendant. Section 21-79 nowhere permits a defendant to use its right to sell its mobile home to delay a summary process action. Furthermore, § 21-79 must be read in conjunction with the rest of the chapter. For example, General Statutes § 21-80 (b) (1) (A) contains a list of permitted circumstances in which a park owner may bring a summary process action and specifically states that “an owner [of a mobile home park] may terminate a rental agreement or maintain a summary process action against a resident who owns his mobile manufactured home only for one or more of the following reasons: (A) Nonpayment of rent, utility charges or reasonable incidental services charges . . . .” Nowhere does § 21-80 include the limitation on a park owner’s right to evict a nonpaying tenant as claimed by the defendant.

“[I]t is an elementary rule of construction that all sections of an act relating to the same subject matter should be considered together .... Insofar as possible the separate effect of each individual part or section of an act is made consistent with the whole.” 2A J. Sutherland, Statutory Construction (4th Ed. 1984) § 47.06. Read together, §§ 21-79 and 21-80 (b) (1) (A) thus permit a resident generally to sell his or her mobile home but preserve the right of a mobile home park owner to evict a resident for nonpayment of rent with thirty days notice. The two sections do not in any way suggest that § 21-79 is to be read to limit the right of a park owner to initiate a summary process action based upon any of the grounds specified in § 21-80 including nonpayment of rent. Furthermore, such a construction is consistent with the intent of the legislature that a summary process action be an accelerated and relatively straightforward procedure. The interpretation advanced by the defendant would create the potential for delay without any express authority in the statute. We conclude that the trial court correctly decided that § 21-79 does not give a party the right to delay a summary process action pending the on-site sale of a mobile home.

The judgment is affirmed.

In this opinion Peters, C. J., Glass and Santaniello, Js., concurred.

Shea, J.,

concurring. I agree with the conclusion of the majority in Part II that there is no merit in the special defenses and counterclaim of the defendants, which are premised upon a claimed right to continue to occupy the premises despite their failure to pay the rent as agreed. Accordingly, I concur in the affirmance of the judgment of possession.

I disagree, however, with Part I, in which the majority holds that in a summary process action the issues are so limited “that unless the tenant can prove payment of rent, the existence of a lease, one of the special defenses [specified by General Statutes § 47a-4a (breach of landlord’s responsibilities) or General Statutes § 47a-33 (retaliatory eviction)], or superior title in the premises, he or she must yield possession.” We recently held in Fellows v. Martin, 217 Conn. 57, 62, 584 A.2d 458 (1991), “that there is no longer sufficient justification for the old prohibition against the application of equitable principles barring forfeitures to summary process; that the prohibition, arising from an obsolete system, is itself obsolete; and that equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding.” The majority opinion alludes to Fellows in a footnote, but does not purport to distinguish or overrule it. Thus, the law of summary process is left in a perplexing state, bound to create confusion in the lower courts.

In the present case, the special defenses and the counterclaim, which sought only equitable relief, did implicate the right to possession of the premises, because the defendants claimed they were entitled to occupy the premises, despite their failure to pay rent, until they were able to exercise the right granted by General Statutes § 21-79 (e) to sell their mobile home together with a right accorded to the purchaser to continue occupying the premises. Although I agree that this claim of the defendants is unsound, I conclude that the trial court should have addressed it on its merits, as the majority has done in Part II.

       General Statutes (Rev. to 1987) § 47a-23 (a) as amended by Public Acts 1987, No. 87-507, § 1, provides: “When a . . . lease of . . . any land upon which a trailer is used or stands . . . terminates [for nonpayment of rent] . . . and the . . . lessor . . . desires to obtain possession . . . of the same ... he or they shall give notice to each lessee ... to quit possession of such land ... at least eight days before ... the time specified in the notice for the lessee ... to quit possession . . . .”

       General Statutes § 47a-23a (a) provides: “If, at the expiration of the eight days the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the superior court may issue a writ, summons and complaint . . . which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises. ...”

       General Statutes § 21-79 (a) provides in part: “No owner or operator of a mobile manufactured home park shall require a resident who owns a mobile manufactured home which is safe, sanitary and in conformance with aesthetic standards to remove the home from the development at the time such mobile manufactured home is sold . . .

       The defendants’ constitutional claims were set forth in their first and second “substitute special defenses” as follows: “First Special Defense. . . . 6. The summary process statutory procedure for mobile homes in Connecticut is unconstitutional as applied in this case because the plaintiff’s taking of the equitable property interest in the defendant’s mobile home is a taking without notice of the interest being taken, a taking without a hearing as to the value of the said equitable interest and, finally, it is a taking without just compensation in violation of Article Five and the due process requirements of notice and an opportunity to be heard of Article Five of the Fourteenth Amendment of the United States Constitution, and including violations of Article I, Section 10 of the Constitution of the State of Connecticut when the defendant is not being allowed to sell her mobile home on the lot.
      “Second Special Defense .... 6. The summary process statutory procedure for mobile homes in Connecticut is unconstitutional as applied in this case because the plaintiff’s taking of the equitable property interest in the plaintiff’s [sic] mobile home is also a violation of the equal protection clause of the Fourteenth Amendment because it has the effect of taking an equitable property interest without notice, hearing or compensation as a result of ‘summary process action.’ It also has the effect of treating mobile home owners differently from all of the other tenants in the state in that the taking of the equitable interest in other homeowners’ property requires a foreclosure action, and including violations of Article I, Section [10] of the Constitution of the State of Connecticut when the defendant is not being allowed to sell her mobile home on the lot.”

       General Statutes § 47a-4a provides: “A rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7 [landlord’s responsibilities].”

       General Statutes § 47a-33 provides in relevant part: “In any action for summary process . . . it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means . . . any condition constituting a violation of any . . . statute or regulation or of the housing or health ordinances of the municipality wherein the premises . . . lie.” See also General Statutes §§ 47a-20 and 47a-20a.

       General Statutes § 47a-23a (a) provides in part: “Such complaint may be made returnable six days, inclusive, after service upon the defendant and shall be returned to court at least three days before the return day.”

       General Statutes § 47a-26 provides in part: “If the defendant does not appear within two days after the return day and a motion for judgment for failure to appear and an endorsed copy of the notice to quit is filed with the clerk, the court shall forthwith enter judgment that the complainant recover possession or occupancy of the premises . . . .”
      General Statutes § 47a-26a provides in part: “If the defendant appears but does not plead within three days after the return day, the complainant may file a motion for judgment for failure to plead .... If the defendant fails to plead within three days after receipt of such motion by the clerk, the court shall forthwith enter judgment that the complainant recover possession or occupancy with his costs.”
      General Statutes § 47a-26e provides: “All pleadings, including motions, shall advance at least one step within each successive period of three days from the preceding pleading or motion.”

       For alternate equitable defenses see Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991).


text:
    University of Connecticut v. Freedom of Information Commission
    (13803)
    Shea, Callahan, Glass, Covello and Borden, Js.
    Argued November 1, 1990
    decision released February 5, 1991

      Paul M. Shapiro, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, then attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellant (plaintiff).

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

This is an administrative appeal from a decision of the freedom of information commission (FOIC) ordering the University of Connecticut (UConn) to disclose the names of students employed in its public safety division to reporters for the university student newspaper. The dispositive issue is whether General Statutes § 1-19 (b) (ll) permits the university to withhold such information. We hold that when students’ names are sought based on their student status, § 1-19 (b) (11) allows the university to withhold that information.

The FOIC found the following facts, which are not in dispute. On November 5,1987, Karen Ali, a reporter for The Daily Campus (the UConn student newspaper) wrote to the UConn police department to request a list of UConn students employed with the police department from September 1 through November 5, 1987. The department’s executive director then asked its fifty-five student employees for permission to release their names. Forty-two objected, four indicated no preference, and nine did not respond. The director offered Ali the opportunity to review only the names of the thirteen student employees who did not object to disclosing their names. Ali and The Daily Campus thereafter filed a complaint with the FOIC. The FOIC ordered the university to disclose the names. UConn appealed to the Superior Court, but the trial court dismissed the appeal. This appeal followed.

The administrative record shows that the fifty-five student employees received hourly wages in exchange for duties which included giving parking tickets, escorting other students across campus, operating security and information booths, and supplementing dormitory security. They received no academic credit for their employment. The positions they held were, however, limited to students of the university.

The Connecticut Freedom of Information Act (FOIA), General Statutes §§ 1-7 through l-21k, lists a number of exemptions from its broad mandate of disclosure. One such exemption is § 1-19 (b) (11), which provides that “[njothing . . . shall be construed to require disclosure of ... (11) names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age . . . The FOIC construed the term “students” to include only those persons whose sole affiliation with an educational institution is as students or, possibly, whose affiliation includes employment directly related to a program of study. Accordingly, the FOIC concluded that because the students in question were hourly employees whose employment was unrelated to their educational experience, § 1-19 (b) (11) did not permit the university to withhold their names from the student reporter who sought them.

The FOIC then considered the university’s contention that § 1-19 (a), which requires disclosure “[e]xcept as otherwise provided by any federal law or state statute,” exempted it from disclosing the names requested because 20 U.S.C. § 1232g, the “Buckley Amendment,” prohibits federal funding of educational institutions that disclose such information about students. The FOIC concluded that because the Buckley Amendment merely conditioned funding on nondisclosure and did not prohibit disclosure, it did not come within the § 1-19 (a) “federal law” exemption to disclosure. Because we hold that § 1-19 (b) (11) permits the university to withhold the requested information, we do not address this second issue.* *

The trial court limited its review of the FOIC decision to whether the FOIC’s interpretation of § 1-19 was “reasonable.” While we ordinarily accord deference to an agency’s interpretation of the legislation it is charged with enforcing; Board of Education v. State Board of Labor Relations, 217 Conn. 110,119-20, 584 A.2d 1172 (1991); the agency’s interpretation is only persuasive, not dispositive. “The interpretation of statutes presents a question of law”; Board of Education v. Freedom of Information Commission, 217 Conn. 153, 158, 585 A.2d 82 (1991); which is ultimately for the court to decide.

If the language of a statute is clear and unambiguous, its meaning is not subject to construction. Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). When application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language, however, we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity. See State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988). Despite the “parade of horribles” suggested by the FOIC,* ** no such latent ambiguity is suggested by the record before us.

It is undisputed that the students whose names were sought were enrolled in the university. The plain language of § 1-19 (b) (11) applies, therefore, to protect them from the mandatory disclosure requirements of the FOIA. The FOIC contends, however, that the students were the subject of inquiry in their capacity as employees, not in their capacity as students, and that this difference renders § 1-19 (b) (11) ambiguous and subject to the rule of construction that exemptions from the FOIA will be narrowly construed. Board of Education v. Freedom of Information Commission, supra, 160. We disagree.

The facts before us do not indicate that student status was merely incidental to the claimant’s request. Ali’s letter specifically sought “a list of all those UConn students that have been employed by the police department from September 1 through November 5,” 1987. (Emphasis added.) Regardless of the limitation of the request to students who were employees, we construe § 1-19 (b) (11) to permit withholding of the names of those employees whose student status was a condition of their employment. Uncontroverted testimony made clear that the students employed by the department held positions reserved exclusively for students of the university. These facts suggest no reason for us to depart from the plain meaning of the statute, which exempts from the disclosure requirement the “names [and] addresses of students enrolled in any public . . . college.” As there is no ambiguity in the statute as applied to this request, the FOIC’s ruling was based on an error of law and should have been reversed.

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

In this opinion the other justices concurred.

       General Statutes § 1-19 provides in pertinent part: “ACCESS TO PUBLIC records, exempt records, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .
      “(b) Nothing in sections . . . 1-19 . . . shall be construed to require disclosure of . . . (11) names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school . . . .”

       Title 20 of the United States Code § 1232g provides in pertinent part: “(a) Conditions for availability of funds to educational agencies or institutions; inspection and review of education records; specific information to be made available; procedure for access to education records; reasonableness of time for such access; hearings; written explanations by parents; definitions
      “(5) (A) For the purposes of this section the term ‘directory information’ relating to a student includes the following: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.
      “(B) Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent’s prior consent.
      * * *
      “(b) Release of education records; parental consent requirement; exceptions; compliance with judicial orders and subpoenas; audit and evaluation of federally-supported education programs; recordkeeping
      “(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following—
      “(A) other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interest;
      “(B) officials of other schools or school systems in which the student seeks or intends to enroll, upon condition that the student’s parents be notified of the transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record;
      “(C) authorized representatives of (i) the Comptroller General of the United States, (ii) the Secretary, (iii) an administrative head of an education agency (as defined in section 1221e-3 (c) of this title), or (iv) State educational authorities under the conditions set forth in paragraph (3) of this subsection;
      “(D) in connection with a student’s application for, or receipt of, financial aid;
      “(E) State and local officials or authorities to whom such information is specifically required to be reported or disclosed pursuant to State statute adopted prior to November 19, 1974;
      “(F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted;
      “(G) accrediting organizations in order to carry out their accrediting functions;
      “(H) parents of a dependent student of such parents, as defined in section 152 of title 26; and

        “(I) subject to regulations of the Secretary, in connection with an emergency, appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons.
      “Nothing in clause (E) of this paragraph shall prevent a State from further limiting the number or type of State or local officials who will continue to have access thereunder.
      “(2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless—
      “(A) there is written consent from the student’s parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student’s parents and the student if desired by the parents, or
      “(B) such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders of subpoenas as in advance of the compliance therewith by the educational institution or agency.”

       We note that the federal regulations promulgated under the authority of 20 U.S.C. § 1232g include the records of student employees within the definition of “educational record,” which are not subject to disclosure without the students’ consent, when the students’ employment is conditioned upon their student status. Title 34 of the Code of Federal Regulations, § 99.3 (1990) provides in part: “Education records (a) The term means those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution, (b) The term does not include ... (3) (i) Records relating to an individual who is employed by an educational agency or institution, that: (A) Are made and maintained in the normal course of business; (B) Relate exclusively to the individual in that individual’s capacity as an employee; and (C) Are not available for use for any other purpose, (ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b) (3) (i) of this definition.” Thus, the Buckley Amendment does prohibit funding of colleges that disclose information contained in the records of student employees when, as here, the students are employed by virtue of their student status. The Buckley Amendment permits routine disclosure of “directory information”; 20 U.S.C. § 1232g (b) (1) and (a) (5) (A); see footnote 2, supra; if the educational institution follows an “opt-out” procedure allowing a parent to object to the disclosure. 20 U.S.C. § 1232g (a) (5) (B). To answer the request at issue, however, UConn would have had to disclose not only mere names and addresses, but also the fact that the named students were employed by the university police department.

       The FOIC contends, for example, that a literal interpretation of the statute could lead to a bizarre result if the “student” is a regular police officer enrolled in one evening course at the university. Applying such an interpretation, UConn would then be permitted to withhold the name of the officer from an individual seeking to depose the officer in connection with a lawsuit, to make a complaint about a false arrest, or to bring an action under 42 U.S.C. § 1983 for violation of his civil rights by the officer in the exercise of his police duties. If student status is not a condition of his employment, however, our decision in this case would not authorize withholding the name of the officer.

       Our conclusion is bolstered by the legislative history of subdivision (11) to General Statutes § 1-19 (b), which was added to No. 77-609 of the 1977 Public Acts as a house amendment.
      At a hearing on the original, unamended version of the bill, held before the Joint Standing Committee on Government Administration and Policy, an attorney for the Connecticut Association of Boards of Education, Jeffrey C. Pingpank, brought up the potential conflict between the Buckley Amendment and the FOIA. He cited a ruling by the FOIC ordering a school to disclose information about a student despite the school’s contention that such a disclosure would violate the Buckley Amendment and cause it to lose federal funds. See Conn. Joint Standing Committee Hearings, Government Administration and Policy, Pt. 2,1977 Sess., p. 406. In fact, the FOIC had made several such rulings in 1976-77. See, e.g., In the Matter of Volak v. Berlin, Docket No. FIC76-176 (February 3, 1977); see also In the Matter of Wilkim v. Board of Education, Docket No. FIC77-56 (April 27,1977); In the Matter of Cosgrove v. State, Docket No. FIC76-216 (January 17,1977).
      Three months after the committee hearing, house amendment A to the original bill was submitted for a vote. That amendment contained what is now § 1-19 (b) (11). Expressing guarded support for the amendment, Senator Joseph Lieberman commented, “Mr. President, I support adoption of the amendment with this caveat. In my understanding of it, it represents a legislative attempt to, in a sense, amend the ruling of the Freedom of Information Commission . . . .” 20 S. Proc., Pt. 10,1977 Spec. Sess., p. 4128.
      While we must be cautious in relying upon statements made in committee hearings or by supporting legislators, this legislative record strongly suggests, at the least, that the legislature intended to free educational institutions from the risk of losing their federal funding by violating the Buckley Amendment in order to comply with the FOIA.