text:
    Walter N. Latimer v. Administrator, Unemployment Compensation Act
    (13863)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 3—
    decision released August 14, 1990

      Brian McCormick, for the appellant (plaintiff).

      ThaddA. Gnocchi, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).
   Callahan, J.

This is an appeal from an assessment by the defendant administrator of the Connecticut Unemployment Compensation Act pursuant to General Statutes § 31-270 for unpaid contributions allegedly due under the act from the plaintiff, Walter N. Latimer. The assessment was based on a determination by the administrator that the plaintiff was the employer, within the meaning of General Statutes § 31-222 (a) (1) (B) (ii), of certain individuals who rendered services to him in his home during the first two calendar quarters of 1987. The plaintiff claimed, to the contrary, that the subject individuals were independent contractors, not his employees, and that he is not liable for any contributions under the act.

On December 14, 1987, the plaintiff filed an appeal from the assessment to the Superior Court pursuant to § 31-270. After the appeal was filed, the plaintiff and the administrator entered into an agreement that allowed the plaintiff the opportunity to present factual claims and legal arguments directly to the administrator in writing. Following the written submission the plaintiff and the administrator agreed that an eviden-tiary hearing should be held. Pursuant to this agreement a hearing was held on May 23, 1988, before a hearing officer appointed by the administrator. Subsequent to the hearing, additional written arguments were submitted to the hearing officer by both parties.

Thereafter, the hearing officer rendered a decision determining that the plaintiff had failed to show that the persons providing him services were free from his control and direction in connection with their performance of those services. The hearing officer concluded, therefore, that those persons furnishing services to the plaintiff were his employees, not independent contractors, and that the plaintiff was liable for the amount assessed by the administrator. See General Statutes § 31-222 (a) (1) (B) (ii) (I). The trial court upheld the hearing officer’s decision albeit upon a different ground from that relied on by the hearing officer.

In connection with the administrative hearing afforded the plaintiff, the hearing officer made an extensive and detailed finding of facts. That finding is not disputed by the parties. Its relevant portions are summarized herein and it is printed in its entirety in the footnote below. The hearing officer found that the plaintiff was eighty-eight years old when he suffered a stroke in March, 1987. Following a period of hospitalization at Charlotte Hungerford Hospital, and a period of rehabilitation therapy at Gaylord Hospital, the plaintiff returned to his home on June 1,1987. Due to physical limitations resulting from his stroke, he was unable thereafter to manage his day-to-day affairs. His affairs, therefore, were attended to by George Christian, his attorney-in-fact, under a general power of appointment given to Christian by the plaintiff on April 4, 1984.

Prior to the plaintiff’s discharge from Gaylord Hospital his personal physician, Frank Vanoni, informed Christian that the plaintiff should either be placed in a nursing facility or receive twenty-four hour care at home because he was incapable of independent living. In response, Christian contacted Carol Johnson, the president of the Litchfield Hills Nurses Registry (registry), and requested that she provide home health aides to the plaintiff in order to furnish him with the level of care and assistance he needed on a daily basis.

Pursuant to Christian’s request, personal care assistants (PCAs) were supplied by the registry and placed in the plaintiff’s home. The PCAs placed with the plaintiff were either certified nurse’s aides, certified home health aides, or had had prior experience working as nurse’s aides. They offered their services to the general public through the registry and in some instances were enrolled with more than one registry and also advertised their services independently. The plaintiff was initially provided with twenty-four hour care for seven days per week, but his care was gradually reduced to eight hours per day for six days per week.

In accordance with the procedures established by the registry, the PCAs were paid at an agreed hourly rate directly by the plaintiff acting through his attorney-in-fact, Christian. Christian, thereafter, issued an Internal Revenue Service form 1096 to each of the PCAs who performed services for, and were paid by, the plaintiff during 1987. That form listed all remunerations to the PCAs as “non employee compensation.” The plaintiff also treated the PCAs as independent contractors for federal income tax purposes and neither the plaintiff nor the registry assumed any responsibility for social security taxes, personal or professional liability insurance or individual life, health or disability insurance. Furthermore, each PCA placed with the plaintiff by the registry signed an agreement with the registry that he or she “is an independent contractor unless otherwise employed directly by the Registry Client.”

The hearing officer also found that the plaintiff, through his attorney-in-fact, retained the right to discharge any PCA and that the registry acknowledged that the plaintiff, or any client of the registry, could communicate to any PCA at any time that the PCA’s services were no longer needed. Moreover, the hearing officer found that although Christian did not directly supervise the performance of the PCAs’ duties, the PCAs did report their day-to-day activities to him and he monitored the care given the plaintiff. The trial court rendered its decision on the appeal after reviewing the findings of fact and the record submitted by the hearing officer.

The Unemployment Compensation Act (act) defines employment in General Statutes § 31-222 (a) (1) (A) and (B). Besides codifying the common law rules used to determine the existence of an employer-employee relationship, the act was amended in 1971 to include the use of what is popularly known in Connecticut and throughout the country in similar legislation as the “ABC test.” The ABC test is utilized to ascertain whether an employer-employee relationship exists under the act. The ABC test is embodied in subdivisions (I), (II) and (III) of § 31-222 (a) (1) (B) (ii). F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 511, 427 A.2d 392 (1980). In order to demonstrate that he is not an employer and therefore has no liability for unemployment taxes under the act, a recipient of services must show that he has satisfied the criteria necessary to establish nonliability under all three prongs of the ABC test. Id.; State Department of Labor v. Medical Placement Services, Inc., 457 A.2d 382, 385-86 (Del. Super. 1982), aff'd, 467 A.2d 454 (Del. 1983); Unemployment Ins. Tax Contribution v. Friedrichs, 233 Mont. 384, 760 P.2d 93 (1988); Nielsen v. Department of Employment Security, 692 P.2d 774, 776 (Utah 1984) “The test is conjunctive; all parts must be satisfied to exclude an employer from the Act.” Gay Hill Field Service v. Board of Review, 750 P.2d 606, 608 (Utah App. 1988); Appeal of Work-A-Day of Nashua, Inc., 132 N.H. 289, 564 A.2d 445 (1989).

Under the ABC test any service provided by an individual is considered employment, unless and until the recipient of the services provided has sustained the burden of showing “to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . . ” General Statutes § 31-222 (a) (1) (B) (ii); F.A.S. International, Inc. v. Reilly, supra, 511-12. Under Part A of the ABC test, therefore, in order to denominate them as independent contractors, the plaintiff bore the burden of showing that the PC As who cared for him have “been and will continue to be free from control and direction in connection with the performance of such service, both under [their] contract for the performance of service and in fact.” General Statutes § 31-222 (a) (1) (B) (ii) (I);

State Department of Labor v. Medical Placement Services, Inc., supra, 384; Appeal of Work-A-Day of Nashua, Inc., supra, 291.

“The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 (1940); Northwestern Mutual Life Ins. Co. v. Tone, 125 Conn. 183, 190, 4 A.2d 640 (1939); Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 524, 28 A. 32 (1893); see Yurs v. Director of Labor, 94 Ill. App. 2d 96, 103, 104, 235 N.E.2d 871 (1968). “ ‘The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.’ Hartley v. Red Ball Transit Co., 344 Ill. 534, 539, 176 N.E. 751 (1931).” Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 413-14, 200 A. 324 (1938). An employer-employee relationship does not depend upon the actual exercise of the right to control. The right to control is sufficient. Id.; Zimmer-Jackson Associates, Inc. v. Department of Labor, 231 Mont. 357, 361, 752 P.2d 1095 (1988); Prime Kosher Foods, Inc. v. Bureau of Employment Services, 35 Ohio App. 3d 121, 123, 519 N.E.2d 868 (1987). “ ‘The decisive test is who has the right to direct what shall be done and when and how it shall be done? Who has the right of general controll? Thompson v. Twiss, 90 Conn. 444, 447, 97 Atl. 328 [1916].” (Emphasis added.) Caraher v. Sears, Roebuck & Co., supra, 413; Northwestern Mutual Life Ins. Co. v. Tone, supra, 191; Bennett v. Department of Employment Security, 175 Ill. App. 3d 793, 797, 530 N.E.2d 541 (1988).

The hearing officer could reasonably have concluded, on the basis of his unchallenged factual findings, that the right to general control of the activities of the PCAs rested in the plaintiff and that consequently an employer-employee relationship existed between him and the PCAs. At the least, he could reasonably have determined that the plaintiff had failed to sustain his burden of showing that the PCAs who cared for him were free from his control and direction in the rendering of their services. Consequently, the plaintiff has not satisfied the A test of § 31-222 (a) (1) (B) (ii) and was therefore liable to pay the administrator’s assessment of unemployment tax contributions against him.

“The determination of the status of an individual as an independent contractor or employee is often difficult (note, 124 A.L.R. 682) and, in the absence of controlling considerations, is a question of fact. Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 326, 195 Atl. 198 [1937].” Robert C. Buell & Co. v. Danaher, 127 Conn. 606, 610, 18 A.2d 697 (1941); F.A.S. International, Inc. v. Reilly, supra, 513. The retention of the right to discharge, which was admittedly reserved by the plaintiff in this case, is a strong indication that his relationship with the PCAs who attended him was one of employment. Beaverdale Memorial Park, Inc. v. Danaher, supra, 179; Jack & Jill, Inc. v. Tone, 126 Conn. 114, 119, 9 A.2d 497 (1939). “ ‘The right to terminate [an employment] relationship without liability is not consistent with the concept of an independent contract.’ ” Johnson v. Department of Labor & Industry, 240 Mont. 288, 293, 783 P.2d 1355 (1989), quoting 1C A. Larson, Workmen’s Compensation Law § 44.35, pp. 8-149—8-158. Moreover, payment of a worker at an hourly rate, the basis on which the plaintiff paid the PCAs in this instance, is persuasive evidence that the status of the worker is that of an employee rather than that of an independent contractor. Johnson v. Department of Labor & Industry, supra; Solheim v. Ranch, 208 Mont. 265, 273, 677 P.2d 1034 (1984); see Department of Employment v. Brown Bros. Construction, Inc., 100 Idaho 479, 482, 600 P.2d 783 (1979).

In addition to the right to discharge and the manner of payment, the hearing officer took note of other factors that weigh in favor of a determination that the relationship between the plaintiff and the PCAs was that of employer-employee and that the PCAs were not independent contractors. The hearing officer determined that the PCAs were required to comply with certain general directives as to when their services were required. While the PCAs made known their hours of availability, it was the plaintiff who established the hours when they were to work. Further, the PCAs could be directed to perform personal errands for the plaintiff and were required to be cognizant of instructions concerning his care. Moreover, services to the plaintiff were expected to be rendered personally by the particular PCAs selected by the registry, based on needs and instructions communicated to the registry by the plaintiffs attorney-in-fact. The plaintiff was interested not only in a final result but in who rendered the service. The hearing officer also found that the PCAs did not have any significant investment in the materials or tools necessary to perform their job. Any needed equipment or materials were furnished by the plaintiff. In addition, the hearing officer concluded that the PCAs, unlike independent contractors, were not in a position to realize a profit or suffer a loss based on the service that they provided. Rather, they were paid an agreed hourly wage directly by the plaintiff.

More important than the above enumerated factors is the hearing officer’s finding that the PCAs reported their day-to-day activities to Christian, the plaintiff’s attorney-in-fact, and that Christian monitored the level of care afforded the plaintiff. That finding embodies the logical inference that the reporting and monitoring had a purpose and that, if the care given the plaintiff were unsatisfactory, Christian could, and would, intervene and take corrective measures. That right of intervention, which we believe clearly exists under the facts, evinces a right to control and direct the PCAs by the recipient of their services. The reporting of their day-to-day activities to Christian by the PCAs and the monitoring of those activities by Christian, who possessed the right to discharge the PCAs, is hardly indicative of the degree of independence that distinguishes an independent contractor from an employee. That the PCAs were permitted to perform their day-to-day duties without interference so long as those duties were performed in a satisfactory manner does not militate against a conclusion of control. See Caraher v. Sears, Roebuck & Co., supra, 413. As previously noted, it is not the actual exercise of the right to control that distinguishes an employer from an independent contractor, but rather the employer’s possession of the right to control. Id., 413-14; Zimmer-Jackson Associates, Inc. v. Department of Labor, supra, 361; Prime Kosher Foods, Inc. v. Bureau of Employment Services, supra, 123.

The fact that the PCAs placed with the plaintiff by the registry signed an agreement that they were “independent contractors” is of no moment. “Language in a contract that characterizes an individual as an independent contractor [rather than an employee] is not controlling. The primary concern is what is done under the contract and not what it says. Insul-Lite Window & Door Mfg., Inc. v. Industrial Commission, 723 P.2d 151 (Colo. App. 1986).” Locke v. Longacre, 772 P.2d 685, 686 (Colo. App. 1989); State Department of Labor v. Medical Placement Services, Inc., supra, 384. Such provisions in a contract are not effective to keep an employer outside the purview of the act when the established facts bring him within it. “We look beyond the plain language of the contract to the actual status in which the parties are placed.” Ellison, Inc. v. Board of Review, 749 P.2d 1280, 1284 (Utah App.), cert. denied, 765 P.2d 1278 (Utah 1988).

Because the prongs of the ABC test contained in § 31-222 (a) (1) (B) (ii) (I), (II) and (III) are conjunctive, the inability of the recipient of services to satisfy any single one of those prongs necessarily results in a conclusion that an employer-employee relationship exists for the purposes of the Unemployment Compensation Act. Having determined that the plaintiff has failed to satisfy prong A of the ABC test we deem it unnecessary to consider prongs B or C. State Department of Labor v. Medical Placement Services, Inc., supra, 385-86; Gay Hill Field Service v. Board of Review, supra, 609; Ellison, Inc. v. Board of Review, supra, 1283.

The judgment of the trial court is affirmed although on a different ground from that relied upon in its memorandum of decision. “[TJhis court is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987); Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); W. J. Megin, Inc. v. State, 181 Conn. 47, 54, 434 A.2d 306 (1980).

The judgment is affirmed.

In this opinion the other justices concurred.

         The administrator of the Connecticut Unemployment Compensation Act is presently Betty L. Tianti.

       “[General Statutes] Sec. 31-270. failure of employer to file report OF CONTRIBUTIONS DUE. APPEAL FROM ACTION OF ADMINISTRATOR. If an employer fails to file a report for the purpose of determining the amount of contributions due under this chapter, or if such report when filed is incorrect or insufficient and the employer fails to file a corrected or sufficient report within twenty days after the administrator has requried the same by written notice, the administrator shall determine the amount of contribution due, with interest thereon pursuant to section 31-265, from such employer on the basis of such information as he may be able to obtain and he shall give written notice of such determination to the employer. Such determination shall be made not later than three years subsequent to the date such contributions became payable and shall finally fix the amount of contribution unless the employer, within thirty days after the giving of such notice, appeals to the superior court for the judicial district of Hartford-New Britain or for the judicial district in which the employer’s principal place of business is located. Said court shall give notice of a time and place of hearing thereon to the administrator. At such hearing the court may confirm or correct the action of the administrator. If the action of the administrator is confirmed or the amount of the contribution determined by the administrator is increased, the cost of such proceedings, as in civil actions, shall be assessed against the employer. No costs shall be assessed against the state on such appeal. The amount of any judgment rendered in such proceedings, with costs, shall be collected either on execution, as provided in civil actions, or as provided in section 31-266.”

       The amount of the assessment together with penalties and interest was $291.31.

       General Statutes § 31-270 does not mandate an administrative hearing.

       The plaintiff does not contest the method of computation of the assessment or the amount thereof.

       The trial court, in its memorandum of decision, noted that it had a “reservation” as to whether the hearing officer was correct in determining under General Statutes § 31-222 (a) (1) (B) (ii) (I) that the plaintiff had failed to show that the individuals rendering services to him were free from his control and direction. The trial court decided, however, that the record supported a conclusion that the plaintiff had failed to demonstrate under § 31-222 (a) (1) (B) (ii) (II) that the services rendered to the plaintiff were performed either outside the usual course of the business for which they were performed or performed outside of all the places of business of the enterprise for which the services were performed. It consequently upheld the administrator’s assessment on that alternative ground. We disagree with the trial court's “reservation” concerning the hearing officer’s decision and do not comment on the application of § 31-222 (a) (1) (B) (ii) (II) to these facts. We simply conclude, on the basis of the facts developed on the record, that the hearing officer’s decision under § 31-222 (a) (1) (B) (ii) (I) was not unreasonable, arbitrary, or illegal.

         The hearing officer found that:
      “(1) Walter N. Latimer, the appellant is 88 years old and suffered a stroke in March, [1987],
      “(2) Following his stroke, the appellant was hospitalized at Charlotte Hun-gerford Hospital in Torrington for approximately three weeks.
      “(3) As a result of the stroke, appellant’s right side became partially paralyzed, requiring the use of a walker and a wheelchair.
      “(4) Following his period of hospitalization at Charlotte Hungerford Hospital, the appellant was admitted to Gaylord Hospital in Wallingford for rehabilitative therapy.
      “(5) The appellant was discharged from Gaylord Hospital and returned to his home on or about June 1, 1987.
      “(6) Due to his physical limitations, the appellant is and has been unable to manage his day-to-day. affairs. The appellant’s day-to-day affairs have been handled by his attorney-in-fact, George Christian, under a general power of attorney granted to him by the appellant on April 4, 1984.
      “(7) Prior to the appellant’s discharge from Gaylord Hospital, Mr. Christian discussed the appellant’s needs with the appellant’s physician, Dr. Frank Vanoni of Torrington. Dr. Vanoni indicated that the appellant should either be placed in a nursing home or receive round-the-clock nursing care in his home, because he was incapable of independent living.
      “(8) Mr. Christian contacted Carol Johnson, president of the Litchfield Hills Nurses Registry (hereinafter ‘Nurses Registry’) and requested that the Nurses Registry provide to the appellant individuals who would provide the level of care and assistance needed by the appellant on a day-today basis.
      “(9) In response to Mr. Christian’s request, personal care assistants (PCA’s) were provided to the appellant and placed in the appellant’s home by the Nurses Registry. Although PCA’s are assigned to provide care which is temporary or for an indefinite period of time (i.e. so long as it is needed), the Nurses Registry prepares a 6 week schedule, which can be adjusted as the client’s needs change. The PCA’s indicate to the Registry the particular days and hours for which they are available for work. They offer their services to the general public through the Nurses Registry and in some cases by advertising their services independently of the Nurses Registry. Many of the PCA’s are registered to work with more than one Nurses Registry. The PCA’s placed by the Nurses Registry in the appellant’s home sign a Nurses Registry Client Agreement which states that ‘(t)he Registry member is an independent contractor unless otherwise employed directly by the Registry Client.’
      “(10) Appellant was initially provided with 24 hour care per day for approximately 11 weeks. As he progressed in his rehabilitation, care was reduced to 12 hours per day and then reduced again to 8 hours of care per day. Currently PCA’s are provided 6 days a week, with Mr. Latimer being given ‘alone time’ on Sundays, when family members, friends and Mr. Christian call on him, Although there is not a PCA on duty on Sunday, Mr. Latimer is not actually alone as he has the services of Communicare, which allows him to seek assistance immediately if he is having problems.
      “(11) The specific PCA provided to appellant is selected by the Nurses Registry, although the Registry’s client can communicate a preference for or objection to a particular PCA selected by the Registry. During the course of appellant’s rehabilitation at home, twelve different PCA’s have been provided to the appellant by the Nurses Registry.
      “(12) The Nurses Registry has provided twelve different PCA’s to the appellant since June of 1987. Each of the PCA’s is either a Certified Nurse’s Aide, a Certified Home Health Aide or has prior experience working as a nurses’ aide. Each Certified Nurse’s Aide has undergone a certain number of hours of training in a nursing home under the supervision of a registered nurse. Each Certified Home Health Aide has undergone a certain number of hours of training in a licensed home health care agency under the supervision of a registered nurse.
      “(13) Each PCA who has performed services for the appellant, Mr. Latimer, has been trained to assist patients in activity guidance, including taking medicine on a regular schedule, assisting patients toward ambulation, bathing, dressing, feeding, assistance with therapy and meal planning. The particular services Mr. Latimer required of each PCA included bathing, dressing, breakfast preparation, regular dispensing of medications, assistance toward ambulation including safe use of a walker and wheelchair, errands including occasionally driving Mr. Latimer’s car and any other assistance in daily living activities which Mr. Latimer is incapable of managing on his own. With respect to meal preparation, each PCA is required to be cognizant of a medically-imposed salt restriction on Mr. Latimer’s diet. In addition, there was an initial concern regarding the risk of choking, since Mr. Latimer’s stroke had resulted in a numbed gag reflex. Most of the PCA’s assigned to perform services for Mr. Latimer had some level of training in resuscitation techniques. PCA’s are not required to perform cleaning, laundry or grocery shopping.
      “(14) The requisite level of skill and training required of PCA’s performing services for Mr. Latimer was determined by the Nurses Registry, based upon recommendations made by Mr. Latimer’s personal physician, Dr. Frank Vanoni.
      “(15) Pursuant to the procedure established by the Nurses Registry, the PCA is paid by the appellant, Mr. Latimer through his attomey-in-fact, a Mr. Christian upon presentation of an invoice. The PCA[s] may utilize billing forms provided to them by the Nurses Registry which identify them as . . . member[s] of the Litchfield Hills Nurses Registry. Prior to May 9, 1988, the PCA paid a portion of his or her fee to the Registry. As of May 9, 1988, the procedure was changed by the Registry so that the PCA now bills the client directly and the Registry also bills the client directly. While there are hourly rates set by the Registry for the services provided by the PCA’s, the rates are actually negotiable, although generally the rates set by the Registry are the minimum rates charged to clients by the Registry and its members. The Registry now bills the client directly for its scheduling services at a rate of $1.75 per hour. The ‘Schedule of Rates and Fees’ as well as the ‘Client Agreement’ utilized by the Nurses Registry are items which are submitted to, reviewed by and approved by the State of Connecticut Department of Labor, Working Conditions Division of Occupational Safety and Health.
      “(16) The PCA’s report their day-to-day activities to Mr. Christian who does not actively direct the performance of their duties, but monitors the care given to Mr. Latimer.
      “(17) The appellant, through his attorney-in-fact, issued a Form 1096 to each of the PCA’s who performed services for Mr. Latimer during 1987, which listed all remuneration paid to the PCA as ‘non-employee compensation.’ The appellant treated each of the PCA’s as an independent contractor for federal income tax purposes.
      “(18) Neither the appellant nor the Nurses Registry accepted responsibility for Social Security taxes, personal or professional liability insurance, malpractice liability insurance, workers compensation insurance or individual life, health or disability insurance.
      “(19) The appellant, through his attorney-in-fact retained the right to discharge any PCA. The Nurses Registry recognizes that the appellant or any client may directly communicate to a PCA that his services are no longer needed, although it would encourage the appellant or any client to inform the Nurses Registry when it takes such an action, in order to preclude further billing by the Registry with respect to that individual PCA.”

       Hourly rates were set by the registry for the PCAs’ services. Those rates, however, were actually negotiable.

       The plaintiff, although he does not dispute the facts found, argues that the trial court erred in not conducting a de novo review of the administrator’s action without regard to the record developed before the hearing officer. The scope of review in an appeal from an assessment of unemployment tax contributions under General Statutes § 31-270 is less than clear. See Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 181-83, 15 A.2d 17 (1940); Ogozalek v. Administrator, 22 Conn. Sup. 100, 101, 163 A.2d 114 (1960). In this instance, however, the trial court was warranted in reviewing the record to determine whether the administrator’s conclusion, assessing contributions against the plaintiff, was unreasonable, arbitrary or illegal. See All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 192, 569 A.2d 1156 (1989). Although not provided by statute, the parties agreed to an elaborate procedural arrangement that contemplated and resulted in a full scale hearing before a hearing officer with a resultant finding of facts and a decision. To ignore the finding of facts and the conclusion of the hearing officer and to treat this appeal as a de novo proceeding would defy common sense and go against the grain of what the parties obviously intended. See General Statutes § 4-183. The trial court did not err by restricting its review to the record developed at the administrative hearing.

       General Statutes § 31-222 (a) (1) (A) and (B) provide: “definitions. As used in this chapter, unless the context clearly indicates otherwise:
      “(a) (1) ‘Employment’, subject to the other provisions of this subsection, means:
      “(A) Any service, including service in interstate commerce, and service outside the United States, performed under any express or implied contract of hire creating the relationship of employer and employee;
      “(B) Any service performed prior to January 1,1978, which was employment as defined in this subsection prior to such date and, subject to the other provisions of this subsection, service performed after December 31, 1977, including service in interstate commerce, by any of the following: (i) Any officer of a corporation; (ii) any individual who, under either common law rules applicable in determining the employer-employee relationship or under the provisions of this subsection, has the status of an employee. Service performed by an individual shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exist, unless and until it is shown to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed; (iii) any individual other than an individual who is an employee under clause (i) or (ii) who performs services for remuneration for any person (I) as an agent-driver or commission driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages, other than milk, or laundry or dry-cleaning services, for his principal; (II) as a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his principal, except for sideline sales activities on behalf of some other person, of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants or other similar establishments for merchandise for resale or supplies for use in their business operations; provided, for purposes of subparagraph (B) (iii), the term ‘employment’ shall include services described in clause (I) and (II) above performed after December 31,1971, if 1. the contract of service contemplates that substantially all of the services are to be performed personally by such individual; 2. the individual does not have a substantial investment in facilities used in connection with the performance of the services, other than in facilities for transportation; and 3. the services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Joseph I. Lieberman, Attorney General v. State Board of Labor Relations Freedom of Information Commission et al. v. State Board of Labor Relations New England Health Care Employees Union, District 1199, NUHHCE, AFL-CIO v. State Board of Labor Relations Town of East Haven v. East Haven Police Union, Local 1622, et al.
    (13826)
    (13827)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued May 9—
    decision released August 14, 1990

      E. Stephen Briggs, general counsel, with whom were Joseph M. Celentano, assistant counsel, Jamie L. Mills and, on the brief, Barbara J. Collins, for the appellants (state board of labor relations, Connecticut Council of Police Unions No. 15, AFSCME, AFL-CIO, Connecticut Council of AFSA Locals, Connecticut State Federation of Teachers, Connecticut State Labor Council, AFL-CIO, Connecticut Council No. 4, AFSCME, AFL-CIO, and New England Health Care Employees Union, District 1199, NUHHCE, AFL-CIO).

      Ralph G. Elliot, with whom were J. Charles Mokriski, Mitchell W. Pearlman, general counsel, Susan P. Liemer and, on the brief, Rochelle S. Wood and Mark R. Kravitz, for the appellees (freedom of information commission, Hartford Courant Company, Jackson Newspapers, Connecticut Council on Freedom of Information and Connecticut Daily Newspapers Association).

      Robert B. Teitelman, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (Joseph I. Lieberman, attorney general).
   Hull, J.

We have burrowed diligently through a welter of claims, administrative rulings, and court judgments spanning a period of seven years and involving at one time or another at least fourteen parties, and have uncovered at the center a single issue that is dis-positive of these consolidated appeals: Is the destruction of public documents a legal subject of collective bargaining? The state board of labor relations (labor board) issued a ruling declaring that the destruction of public employee discipline records pursuant to collective bargaining agreements, arbitration awards and grievance settlements is a mandatory subject of bargaining and that, provided certain conditions are met, such agreements are legal and enforceable. From this ruling and a related decision of the labor board, the attorney general, the freedom of information commission (FOIC) et al., New England Health Care Employees Union, District 1199, NUHHCE, AFL-CIO (New England Health Care), and the town of East Haven appealed separately to the Superior Court where the cases were subsequently consolidated for trial. The trial court overturned the labor board’s declaratory ruling and accordingly sustained the appeals of the attorney general and the FOIC et al., dismissed the appeal of New England Health Care and sustained the appeal of East Haven, remanding it to the labor board for further proceedings. The labor board et al., appealed to the Appellate Court from the judgments in the first, second and fourth cases, and New England Health Care and Connecticut Council No. 4, AFSCME, AFL-CIO appealed to the Appellate Court from the judgments in all four cases. This court thereafter transferred these appeals here in accordance with Practice Book § 4023. We now affirm the judgment of the trial court in the first three cases and dismiss the appeals in the fourth case.

The trial court’s memorandum of decision reveals the following facts. On June 29, 1983, the town of East Haven suspended Joseph Ridarelli, a member of the municipal police department, for alleged violations of the rules and regulations of that department. Prior to the departmental hearing on the matter, East Haven and Local 1662, Council 15, AFSCME, AFL-CIO (union), the union representing Ridarelli, reached a settlement pursuant to which Ridarelli agreed to resign his employment position in exchange for East Haven’s agreement to destroy all records, documents and statements pertaining to the alleged violations.

On August 17, 1983, the Jackson Newspapers requested that East Haven allow it to inspect and/or copy records regarding Ridarelli’s suspension and resignation. Although the town and its counsel had retained copies of Ridarelli’s discipline record, the town refused to honor the disclosure request. Jackson Newspapers responded by filing a complaint with the FOIC. The FOIC held a hearing on the matter and thereafter issued its ruling, requiring that East Haven provide the Jackson Newspapers access to and copies of all the requested documents.

The union then filed a complaint with the labor board, alleging that East Haven had violated the settlement agreement reached by the parties by failing to destroy the relevant documents in Ridarelli’s personnel file. The labor board conducted a hearing on the union’s complaint after which it ruled that East Haven had repudiated a legal settlement agreement and that Ridarelli was, therefore, entitled to economic redress for losses suffered as a result of that repudiation. From this decision, East Haven appealed to the Superior Court.

Recognizing conflicts between the decision of the FOIC and the labor board, the attorney general, pursuant to General Statutes § 176, petitioned the labor board for a declaratory ruling on the following question: “Whether and in what circumstances under the State Employee Relations Act [General Statutes §§ 5-270 through 5-280], the Municipal Employee Relations Act [General Statutes §§ 7-460 through 7-479], or the School Board-Teacher Negotiations Act [General Statutes §§ 10-153 through 10-156d], construed in light of [General Statutes] §§ 1-2 lk [penalty provision for the illegal destruction of public records], 4-190 [through] 4-197 [Personal Data Act], 7-109 [provision for the destruction of documents in custody of munieipality] and 11-8 [through] ll-8c [public records management statutes], provisions of collective bargaining agreements, arbitration awards or grievance settlements made pursuant to any of said acts, which call for records of a public employer to be destroyed, are null and void?”

On February 2, 1987, the labor board issued its declaratory ruling on the attorney general’s petition, in which it held that the “[destruction of employee discipline records pursuant to collective bargaining agreements, arbitration awards or grievance settlements is a mandatory subject of bargaining and such agreements are legal and enforceable.” The board noted that, because an agreement to destroy an employee’s record reflects the judgment that the record in question is inaccurate or no longer relevant and necessary for employee discipline purposes, there exist contemporaneous duties under the agreement and the Personal Data Act; General Statutes §§ 4-190 through 4-197; to destroy the record. Such destruction, in the board’s view, does not conflict with interests protected by the Freedom of Information Act (FOIA), General Statutes §§ 1-15, l-18a, 1-19 through l-19b, 1-21, l-21a and l-21c through l-21k. The board’s decision recognized that the General Statutes require approval from certain officials employed by the state library as a prerequisite to the destruction of public documents. General Statutes § ll-8a (c). These statutory provisions, however, were viewed by the board as having little impact on the settlement agreements in question. According to the board, the bargaining procedure itself would determine in great part the necessity for the retention of the record in question, thereby limiting the library officials’ discretion in evaluating a public employer’s request to destroy an employee’s record.

Upon the filing by the attorney general of the petition for a declaratory ruling, East Haven’s pending appeal in the Superior Court was remanded to the labor board for further consideration. On October 20,1988, the labor board issued its decision upon reconsideration pursuant to the remand in the East Haven case. In light of the conclusions of law outlined in its declaratory ruling, the board reaffirmed its original order and concluded that an agreement to destroy records, entered into as part of an employee disciplinary process, obligates an employer to make a good faith effort to seek the approval of the public records administrator to destroy the records in question.

In response to the labor board’s declaratory ruling and related decision, the attorney general, the FOIC et al., New England Health Care and East Haven instituted separate appeals in the Superior Court that were subsequently consolidated for trial. Collectively, the parties raised issues challenging the labor board’s application of the state’s public records management statutes and the freedom of information statutes. The trial court, in its memorandum of decision dated September 30,1989, overruled the board’s declaratory ruling and stated that Ridarelli’s file must be made available to the public. The basis of the court’s decision was its conclusion that an agreement to destroy a public employee’s discipline record conflicts with applicable state statutes. Accordingly, the court sustained the appeals of the attorney general and the FOIC et al., dismissed the appeal of New England Health Care and sustained the appeal of East Haven, remanding that matter to the labor board for further proceedings consistent with the court’s decision.

On appeal from these judgments, the labor board et al. and New England Health Care et al. challenge: (1) the trial court’s conclusion that an agreement to destroy a public employee’s disciplinary record is illegal and unenforceable, claiming that the court improperly analyzed the interrelationship among the state’s collective bargaining statutes, Freedom of Information Act, public records management statutes and Personal Data Act; and (2) the trial court’s application of the legal conclusions reached in its decision to the facts of the East Haven case. We are unpersuaded by the first challenge to the trial court’s decisions and do not reach the merits of the second challenge, because we dismiss the appeals from the trial court’s judgment in the East Haven case for lack of jurisdiction.

I

The foundation of the labor board’s declaratory ruling and related decision was its conclusion that the destruction of a public employee’s discipline record is a “[condition] of employment” and is, therefore, a mandatory subject of collective bargaining. The board then determined that when the bargaining process results in an agreement requiring a public employer to destroy an employee’s discipline record, the various provisions of the General Statutes support the enforceability of that agreement. We conclude that an agreement to destroy public records conflicts with relevant provisions of the General Statutes, and we hold, therefore, that the destruction of a public employee’s discipline record is an illegal subject of collective bargaining.

A

Before addressing the substantive law that leads us to our conclusion, we set forth the well established standard of judicial review of administrative agency rulings. General Statutes § 4-183 (j), as amended to take effect July 1,1989, permits modification or reversal of an agency’s decision if “substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” As under the prior statute, “[t]he [reviewing] court may not retry the case or substitute its judgment for that of the agency on the weight of the evidence or questions of fact. General Statutes § 4-183 [j]; Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 318, 438 A.2d 103 (1980); Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978). Rather, an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140, 509 A.2d 1050 (1986); Board of Aldermen v. Bridgeport Community Antennae Television Co., 168 Conn. 294, 298-99, 362 A.2d 529 (1975); Westport v. Norwalk, 167 Conn. 151, 355 A.2d 25 (1974).” State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988).

“On the other hand, it is the function of the courts to expound and apply governing principles of law. N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); International Brotherhood of Electrical Workers v. N.L.R.B., 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff’d sub nom. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974); Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, supra; Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979).” State Medical Society v. Board of Examiners in Podiatry, supra, 717-18.

These appeals present a question concerning the legality of bargaining agreements that require the destruction of certain information contained within a public employee’s personnel file. As the decisions of the labor board and the trial court demonstrate, the answer to this question turns upon the interpretation of the interrelationship of the various state statutes. This is purely a question of law, and, therefore, invokes a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. See id., 718; Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5-6, 434 A.2d 293 (1980).

While we ordinarily give great deference to the construction given a statute by the agency charged with its enforcement; Griffin Hospital v. Commission on Hospitals & Health Care, supra, 496-97; we conclude that under the facts of the instant case, the labor board’s decision does not warrant special deference. The statutes construed by the labor board in reaching its decision were not limited to those within the board’s enforcement authority, but included statutes that the legislature has made the responsibility of other state entities. Moreover, the board’s interpretation of the statutory scheme at issue is a question of law that has not previously been subjected to judicial scrutiny. See Glastonbury Co. v. Gillies, 209 Conn. 175, 177 n.2, 550 A.2d 8 (1988); State Medical Society v. Board of Examiners in Podiatry, supra, 718-19; Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); Schlumberger Technology Cor poration v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). In these circumstances, we do not consider ourselves bound to give preferential treatment to the labor board’s construction of either the relevant statutes themselves or the relationship among the statutes. It is with this understanding that we undertake our inquiry.

B

In N.L.R.B. v. Wooster Division, Borg Warner Corporation, 356 U.S. 342, 349-50, 78 S. Ct. 718, 2 L. Ed. 2d 823 (1958), the United States Supreme Court classified the subjects of bargaining under the National Labor Relations Act as mandatory, permissive or illegal, a classification this court has applied in the context of public sector labor negotiations. See West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 576-77, 295 A.2d 526 (1972). “The duty to negotiate is limited to mandatory subjects of bargaining. As to other matters, however, each party is free to bargain or not to bargain. [N.L.R.B. v. Wooster Division, Borg Warner Corporation, supra, 349]; N.L.R.B. v. American National Ins. Co., 343 U.S. 395, 72 S. Ct. 824, 96 L. Ed. 1027 [1952].” Id., 577. The duty and/or ability to bargain, however, is necessarily limited to those subjects to which the parties can legally agree. See, e.g., Local 1219 v. Connecticut Labor Relations Board, 171 Conn. 342, 352, 370 A.2d 952 (1976) (“[t]he prohibitions of the [Municipal Employer Relations Act] may not be varied by the contracts of private parties”); West Hartford Education Assn., Inc. v. DeCourcy, supra, 587 (court stated that if the submission of certain subjects to binding arbitration is unlawful, the topic is beyond the scope of negotiability). As with contracts generally, the bargaining process and resulting agreements are subject to the restrictions and limitations of public policy as manifested in constitutions, statutes and applicable legal precedents. See generally Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S. Ct. 847, 92 L. Ed. 1187 (1948); Muschany v. United States, 324 U.S. 49, 64-68, 65 S. Ct. 442, 89 L. Ed. 744 (1945); Stratford v. Local 134, IFPTE, 201 Conn. 577, 590-91, 519 A.2d 1 (1986); State College AAUP v. State Board of Labor Relations, 197 Conn. 91, 98, 495 A.2d 1069 (1985).

The initial question that must be answered in determining the scope of public sector labor negotiations, therefore, is whether the parties involved in the bargaining process can legally agree to the subject in question. See A. Knapp, Labor Relations Law in the Public Sector (1977) pp. 82-83. Our answer to this question in the instant case ends our inquiry, because we conclude that, in light of applicable statutory and constitutional provisions, a public employer does not have the legal authority to agree to the destruction of information contained within a public employee’s personnel file.

C

The state constitution provides that our government is to be responsible to the people. Conn. Const., art. I, § 2. The legislature, in recognition of this guarantee, has ensured the government’s accountability through the FOIA and the establishment of a public records management system.

The FOIA imposes an affirmative duty on each state and municipal agency to “keep and maintain all public records in its custody at its regular office or place of business in an accessible place . . . . ” General Statutes § 1-19 (a). This act ensures that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” General Statutes § 1-15. It also gives citizens the right “to inspect such records promptly during regular office or business hours or to receive a copy of such records” except when a federal law or state statute provides otherwise. General Statutes § 1-19 (a). Included in the scope of the FOIA is “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.” General Statutes § l-18a (d). A public employee’s personnel record is clearly encompassed by this definition.

As we have stated in the past, the FOIA “ ‘expresses a strong legislative policy in favor of the open conduct of government and free public access to its records.’ Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 [1980].” Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980); see also Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984). The act does not, however, confer upon the public an absolute right to all government information. Wilson v. Freedom of Information Commission, supra. In those limited circumstances where the legislature has determined that some other public interest overrides the public’s right to know, it has provided explicit statutory exceptions. See, e.g., General Statutes § 1-19 (b). We have held that these exceptions must be narrowly construed. Board of Police Commissioners v. Freedom of Information Commission, supra; Wilson v. Freedom of Information Commission, supra. In accordance with this principle, we conclude that the legislature has not provided a blanket exemption from disclosure for all public employee discipline records that the employer has agreed to destroy. That is not to say that disclosure of these records would be required under all circumstances, but only that, absent a statutory exemption applicable to the facts of a particular case, the general policy under the FOIA would favor disclosure of the records.

We note that the FOIA’s general policy favoring public access has strong federal constitutional underpinnings. As the United States Supreme Court has made clear, the first amendment to the federal constitution is not limited to protection of free expression but also embodies the right to receive and gain access to information and ideas. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-10, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-607, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). “[A]n arbitrary interference with access to important information is an abridgement of the freedoms of speech and of the press protected by the First Amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 583, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (Stevens, J., concurring.)

The legislature has addressed the concern that the right of public access codified in the FOIA be protected from arbitrary interference by establishing a systematic and controlled approach to the retention and destruction of public records. See General Statutes §§ 11-8 through ll-8c. The state librarian is “responsible for developing and directing a records management program for the books, records, papers and documents of all state agencies within the executive department . . . and ... of the several towns, cities, boroughs, districts and other political subdivisions of the state . . . . ” General Statutes § 11-8 (a). Pursuant to § 11-8 (b), the state librarian must appoint an assistant to serve as the public records administrator.

No public record may be “removed, destroyed, mutilated, transferred or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules and regulations adopted by the state library board . . . . ” General Statutes § ll-8b. The state librarian is authorized to require each “state agency, or each political subdivision of the state . . . to inventory all books, records, papers and documents under its jurisdiction and to submit to him for approval retention schedules for all such books, records, papers and documents . . . . ” General Statutes § ll-8a (b). The legislature has given the authority for approving the disposal of public books, records, papers and documents to the public records administrator, the state archivist and the state librarian. General Statutes § ll-8a (c). If these officials determine that the “books, records, papers and documents are of no administrative, fiscal, or legal value . . . [or] historical value to the state,” their disposal will be approved. General Statutes § ll-8a (c).

In its opinion issuing the declaratory ruling, the labor board explained that the bargaining process between a public employer and public employee would determine in great part the necessity for the retention of the record in question, thereby limiting the library officials’ discretion in evaluating the employer’s request to destroy the employee’s record. The basic premise of this position is the view that once the records are unnecessary to the purposes of the employer and employee, the records lack any value or usefulness and can be destroyed pursuant to § ll-8a (c). We strongly disagree. The value or usefulness of a public employee’s discipline record does not live and die with the employee dispute that gave rise to that record. To illustrate this point we need refer to only a few examples where such records retain considerable value beyond the particular dispute responsible for their creation: (1) in legal proceedings brought by members of the public, such as those instituted pursuant to 42 U.S.C. § 1983; (2) in an indemnity action brought by the public employee for losses resulting from such lawsuits; (3) in investigations of the employee or agency for alleged violations of criminal or civil statutes; and (4) in background checks of the employee relating to possible appointment to public office.

Where the legislature has deemed it appropriate, specific exceptions to the records retention rules have been created. For example, the legislature has enacted laws governing the destruction of particular election records. General Statutes §§ 9-148, 9-150, 9-302, 9-303 and 9-310. The labor board expressed in its decision the view that the Personal Data Act likewise exempts from the public records retention requirements the information contained within a public employee’s personnel file once the employer and employee agree to the destruction of that information. We are unpersuaded by the construction given the Personal Data Act by the labor board. This act requires an agency to “[mjaintain only that information about a person which is relevant and necessary to accomplish the lawful purposes of the agency.” General Statutes § 4-193 (e). As we discussed previously, maintaining disciplinary records and complaints about public employees for the required retention periods may be relevant and necessary to many lawful purposes of the agency beyond the particular disciplinary procedure involved. Moreover, although the act limits the information that the agency is required to “maintain,” this act does not authorize the agency, upon its determination that a record is no longer relevant and necessary for its purpose, to destroy that record without regard to the specific approval requirements of § ll-8a (c). We conclude, therefore, that the legislature has not exempted from the public records retention requirements a public employee’s discipline record, the destruction of which is the subject of a bargaining agreement.

The statutory scheme established by the legislature regarding access to and management of public records clearly indicates that the proper forum for determining the value and usefulness of a public employee’s personnel record, and for requiring the retention or approving the destruction of information contained within that record, is not the closed session at the bargaining table. While a public employee is free to bargain over the employment-related use of information contained within his personnel file, the destruction of the information itself implicates fundamental rights of access by the public and must be subject to the confines of the established public records management system. Only certain independent library officials have been vested by the legislature with the authority to approve the destruction of public records. The destruction of public records, therefore, is an illegal subject of bargaining, and any collective bargaining agreement, arbitration award or grievance settlement requiring such destruction is null and void.

II

We now address briefly the challenge levied against the trial court’s decision in the fourth case, East Haven’s appeal from the decision of the labor board. The court sustained East Haven’s appeal and remanded the matter to the labor board for further proceedings consistent with its opinion. The labor board et al. and New England Health Care et al. claim that the trial court improperly applied to the facts of the East Haven case the legal conclusions reached in its memorandum of decision. We do not reach the merits of this claim, because we conclude that the trial court’s disposition of the East Haven case does not constitute a final judgment. The appeals from the trial court’s judgment in that case, therefore, are dismissed.

“Under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., further appellate review of superior court rulings on administrative appeals is limited to cases in which the Superior Court has rendered a final judgment. General Statutes § 4-184. That statutory provision accords with the general proposition that, except in special cases, such as appeals upon reservations; State v. Sanabria, 192 Conn. 671, 681-85, 474 A.2d 760 (1984); or upon certification pursuant to General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984); the jurisdiction of this court is restricted to appeals from judgments that are final. General Statutes § 52-263; Practice Book § 4000 (formerly § 3000); Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987); Doublewal Corporation v. Toffolon, 195 Conn. 384, 388-89, 488 A.2d 444 (1985).” Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 408-409, 521 A.2d 566 (1987).

This court has stated that an order remanding a case to an agency for further proceedings will be deemed a final judgment where such proceedings will be “ministerial, not requiring the exercise of independent judgment or discretion and not involving additional evidence.” Matey v. Estate of Dember, 210 Conn. 626, 630, 556 A.2d 599 (1989); see Santos v. Publix Theatres Corporation, 108 Conn. 159, 142 A. 745 (1928). On the other hand, we have determined that appellate review of a judicial order of administrative remand is premature in those situations where the case is remanded because the administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication. See Schieffelin & Co. v. Department of Liquor Control, supra, 410-12; Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987).

The trial court remanded the East Haven case for farther proceedings consistent with its opinion. Because the court had ruled that the settlement agreement there involved was illegal and unenforceable, the labor board on remand will be required to exercise its independent judgment in answering a question it has not previously addressed, namely: What equitable remedies, if any, are available to Ridarelli, who resigned his employment position in reliance on a settlement provision to which his public employer had no legal authority to agree? The labor board proceedings on remand clearly will not be ministerial in nature. The remand order directing further proceedings, therefore, is not a final judgment. Accordingly, we dismiss the appeals in the East Haven case.

The judgments of the trial court are affirmed in the first three cases; the appeals in the fourth case are dismissed.

In this opinion the other justices concurred.

       The following parties joined the appeal of the FOIC: The Hartford Courant Company, The Jackson Newspapers, The Connecticut Council on Freedom of Information, and The Connecticut Daily Newspapers Association.

       In its appeal, the labor board is joined by the following parties: Connecticut Council of Police Unions No. 15, AFSCME, AFL-CIO, Connecticut Council of AFS A Locals, Connecticut State Federation of Teachers and Connecticut State Labor Council, AFL-CIO.

       The town of East Haven did agree to release Ridarelli’s letter of resignation and the minutes of the meeting at which the town council had accepted that resignation, but refused to release the civilian complaint letters that prompted Ridarelli’s decision to resign.

       General Statutes (Rev. to 1985) § 4-176 provides in pertinent part: “Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings.”

       In reaching this conclusion, the labor board relied on the language of General Statutes § 4-193 (e) that requires a municipal department to “[m]aintain only that information about a person which is relevant and necessary to accomplish the lawful purposes of the agency.”

       General Statutes § ll-8a (c) provides in pertinent part: “If the state librarian determines that [public] books, records, papers and documents are of no administrative, fiscal, or legal value, and the public records administrator and state archivist determine that they are of no historical value to the state, the state librarian shall approve their disposal, whereupon the head of the state agency or political subdivision shall dispose of them as directed by the state librarian.”

       The attorney general challenged the labor board’s limitation of the scope of discretion accorded the state library officials under General Statutes § ll-8a (c). New England Health Care claimed that the public records management statutes; General Statutes § 11-8 et seq.; were not applicable to the removal or destruction of the information contained within a public employee’s personnel file once that information became the subject of a collective bargaining settlement. The FOIC et al. challenged the labor board’s conclusion that the destruction of a public employee’s discipline record does not implicate interests protected by the FOIA. The town of East Haven challenged the labor board’s conclusions of law as applied to its settlement agreement with Ridarelli.

       State employers, municipal employers and boards of education are required by statute to negotiate in good faith with their respective employees regarding salaries, hours, and other conditions of employment. See General Statutes §§ 5-272 (e), 7-470 (c) and 10-153d (b).

       We note that our holding is broader than that of the trial court. While that court held that an agreement requiring the destruction of public records conflicts with relevant provisions of the General Statutes, it did not foreclose the possibility that a legal and enforceable agreement concerning the destruction of such records could be reached by the contracting parties. In the trial court’s view, a public employer and employee could legally agree to the destruction of disciplinary documents provided that the agreement reflected the restrictions and requirements that the General Statutes impose on the retention and destruction of public records. We disagree with this aspect of the court’s decision. On the basis of our analysis of the statutes regarding the disclosure, retention and destruction of public records, we conclude that the destruction of a public employee’s discipline record is an illegal subject of collective bargaining.

       General Statutes § 1-19 (b) exempts from disclosure under the FOIA, inter alia, “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy” and “records, reports and statements of strategy or negotiations with respect to collective bargaining.” The labor board determined that these provisions exempt from disclosure any discipline record that the public employer and public employee have agreed to destroy. We conclude that the board’s construction of these statutory exemptions is too broad. First, there is certainly information contained within a public employee’s discipline record the disclosure of which would not implicate a legally protected privacy interest. Second, while the information contained within an employee’s personnel file may be the subject of bargaining, the subject standing alone reveals nothing about the strategy or negotiation involved in the collective bargaining process.

       The legislature has vested in the FOIC, and ultimately in the judicial system by way of administrative appeals from the decisions of the FOIC, the authority to determine whether a particular record is subject to disclosure. General Statutes §§ l-21j, 4-166 et seq. We note that the decision of the FOIC requiring that Ridarelli’s file be made available to the public has not been appealed, and is, therefore, an aspect of this case not reviewable by this court.

       We note that these approval requirements as applied to municipalities are also codified in General Statutes § 7-109, which provides in pertinent part: “Any official, board or commissioner of a municipality may, with the approval of the chief administrative officer of such municipality and of the public records administrator, destroy any document in his or its custody relating to any matter which has been disposed of and of which no record is required by law to be kept, after such document has been held for the period of time specified in a retention schedule adopted by the public records administrator.” (Emphasis added.)

       These statutes provide a specific procedure for the destruction of certain election records and operate as an exception to the general rule that destruction of public records requires the approval of the public records administrator.

       The Personal Data Act defines “maintain” to mean “collect, maintain, use or disseminate.” General Statutes § 4-190 (6).


author: Callahan, J.

text:
    State of Connecticut v. James J. Siano
    (13881)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued June 5—
    decision released August 14, 1990

      John S. Pinney, with whom was Thomas E. Gaffey, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Warren Grower and Paul Gaetano, assistant state’s attorneys, for the appellee (state).
   Callahan, J.

The defendant, James J. Siano, was charged in an information with the crimes of burglary in the second degree in violation of General Statutes § 53a-102 and larceny in the second degree in violation of General Statutes § 53a-123. The charges arose out of a burglary that occurred in the evening hours of May 25,1986, at a residence located at 2 Lois Lane in Enfield while the family was away. Items exceeding a value of $5000, including a computer and articles of jewelry were taken. The defendant was convicted of the crimes charged in the information and was subsequently sentenced by the trial court to concurrent terms of seven years imprisonment on each count, the terms to be served consecutively to sentences imposed by other states.

The defendant appealed the trial court’s judgment to the Appellate Court which upheld the defendant’s conviction. State v. Siano, 20 Conn. App. 369, 567 A.2d 1231 (1989). We granted certification limited to three questions: “(1) Does the disclosure required by Practice Book § 744 depend on the personal knowledge of the prosecuting attorney? (2) Are the requirements of Practice Book § 744 met by having the prosecuting attorney make inquiries of the relevant witness? (3) If there was an error in failing to comply with Practice Book § 744, was it waived or was it harmless?” State v. Siano, 214 Conn. 801, 569 A.2d 550 (1990).

The Appellate Court determined that the trial court did not err when it held that the prosecutor’s inquiry of the relevant state’s witness concerning his criminal record, and the affirmation by the prosecutor that the information elicited was all he knew of the witness’ criminal record, was sufficient to satisfy Practice Book § 744 and that the prosecutor had no affirmative duty to procure further information concerning the witness’ criminal record for the defendant. State v. Siano, supra, 20 Conn. App. 373. We disagree.

The record reveals that at the defendant’s trial the state called Carmine Sarno, a resident of Springfield, Massachusetts, as a witness. On direct examination Sarno testified that he had participated, with the defendant, in the burglary at 2 Lois Lane, Enfield. He then went on to describe how he and the defendant had committed the crime and identified the computer that had been stolen. Sarno also testified on direct examination that he had previously pleaded guilty to the 2 Lois Lane burglary and other burglaries he had committed in Connecticut and had been imprisoned as a result of the convictions arising from those pleas. He stated, however, that he had not served the entire term to which he had been sentenced because he had been released early in return for his cooperation in the prosecution of the defendant. Sarno testified further that he was awaiting sentence on an unspecified number of burglary charges in Massachusetts but that he did not know what sentence he would receive in that state because Massachusetts authorities had made him no promises in that regard.

At the conclusion of the state’s direct examination of Sarno, the defendant moved, pursuant to Practice Book § 744, for the production by the state of Sarno’s record of felony convictions and pending felony and misdemeanor charges. The state, in response, stated that all of Sarno’s felony convictions, of which the state was aware, “were brought out to the jury on direct examination” and that the jury was “well aware” of Sarno’s record. The defendant contended, however, that Sarno’s testimony that he had pleaded guilty to burglaries in Connecticut and was awaiting sentence for burglaries committed in Massachusetts was not adequate disclosure. The defendant argued that Sarno’s direct testimony was insufficient for disclosure purposes because it was not informative as to the extent of Sarno’s record. The defendant stated that he was unable to discern from Sarno’s testimony whether Sarno had “two or twenty-two” convictions and pending cases in Massachusetts and Connecticut.

The defendant claimed that he was entitled, for impeachment purposes, to Samo’s complete criminal record from a reliable source and that he was not required to depend on Sarno for that information. The trial court, however, stated that the prosecutor was only required to disclose the record “[t]hat he knows of. If he doesn’t bother to find out whether his witness has a criminal record, that’s the state’s problem . . . but I don’t agree with you that the state has to find out the criminal record of a witness. . . . I don’t know of any obligation that it has to.” The defendant thereafter moved to strike Sarno’s testimony claiming that without a copy of Sarno’s record he would be prevented from conducting an effective cross-examination and would thereby be deprived of his right to confront the witness. See State v. Bowden, 29 Conn. Sup. 86, 89, 272 A.2d 141 (1970). The trial court denied the defendant’s motion to strike.

The state then reopened its direct examination of Sarno and elicited from him the further information that he had no record of felony convictions and no pending misdemeanor charges in Massachusetts but that he did have “eighty or ninety” felony burglary charges pending against him there. The prosecutor provided the defendant with no further information concerning Sarno’s criminal history. The question to be resolved, therefore, is whether the prosecutor’s inquiry of Samo, the state’s witness, concerning his criminal record, and the prosecutor’s representation to the court that the information elicited was “all he knew” of the defendant’s record, were sufficient to satisfy Practice Book § 744.

The rules of statutory constmction are equally applicable to Practice Book rules. State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); State v. Cook, 183 Conn. 520, 521-22, 441 A.2d 41 (1981). It is an accepted rule of statutory constmction that the promulgators of statutes or rules do not intend to proclaim meaningless or ineffective rules or legislation. See Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981); 2A J. Sutherland, Statutory Constmction (4th Ed.) § 45.12. It is also a rule of statutory constmction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 593, 522 A.2d 771 (1987); Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139. cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980); 2A J. Sutherland, supra. If we were to adopt the position of the state and the trial court in this case, we would countenance a severe fracture of both of these rules of constmction.

The trial court held, in effect, that Practice Book § 744 requires only that the state disclose to the defendant information about the criminal record of a state’s witness that is personally known to the individual prosecutor trying the particular case in which that witness appears and testifies. If indeed that is all that § 744 requires, prosecutors would be encouraged to eschew gaining any knowledge of the criminal records of witnesses appearing for the state. In that way, the state could avoid ever furnishing the defendant with material to be used for impeachment purposes. By simply doing nothing and maintaining a posture of studied ignorance the state could thwart § 744 and render it ineffective to fulfill its manifest purpose of providing impeachment material to the defendant for cross-examination. See State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978). We cannot tolerate even the possibility of the occurrence of such a scenario. Section 744 was obviously intended to be effective and to serve a salutary purpose. The rule, however, cannot accomplish its purpose unless the state makes a reasonable, positive effort to secure the information that § 744 requires it to disclose.

Further, if the state has no responsibility under § 744 to take affirmative steps to gain knowledge of the criminal records of its witnesses, a defendant in many instances would be placed in the anomalous position, as was the defendant here, of having to depend on the witness whom he seeks to impeach for reliable information to accomplish that impeachment. We doubt that the authors of § 744 envisioned that such a bizarre situation would exist subsequent to the adoption of the rule. To force the defendant to rely on the very witness he is endeavoring to impeach for an accurate account of his criminal record is illogical and would be antithetic to what the rule was intended to accomplish. We conclude, therefore, that the requirements of § 744 are not met by having the prosecutor make inquiries of the state’s witness concerning his criminal record. There is, rather, an obligation on the part of the state under § 744 to make a reasonable affirmative effort to obtain a record of a state’s witness’ felony convictions and pending misdemeanor and felony charges for disclosure to the defendant. That conclusion requires that a prosecutor is at least obligated to make known to a defendant, at the proper time, information concerning the criminal record of a state’s witness that is known to the prosecutor or is contained in the prosecutor’s own case file, information that can be gained through reasonable inquiry of other prosecutorial personnel in the prosecutor’s office, and information that is reasonably available to the prosecutor through his access to state and federal computerized criminal information systems. Anything less, we believe, would compromise the effectiveness of § 744 and in many instances would render it a nullity.

There is no indication that at the time of trial the prosecutor had any personal knowledge of Sarno’s criminal history other than that which he had gained through Sarno’s own testimony. Further, there is no indication that the prosecutor had made any effort to secure a more detailed account of Sarno’s record for disclosure purposes. Consequently, all that was disclosed to the defendant was what Sarno himself testified to; no computer printout, other documentation, or particularized information in any form was made available to the defendant and no explanation was offered for the failure of the state to acquire such information. Under the circumstances, the state failed to comply with § 744.

The final question to be resolved is whether the failure of the state to comply with § 744 was harmless. The defendant claims the state’s failure to comply with § 744 deprived him of his constitutional rights to due process and to confront the witnesses against him. We disagree. The record discloses that despite the state’s lack of compliance with § 744, the defendant had information that Sarno had some “eighty” or “ninety” felony burglary charges pending against him in Massachusetts, and that he had been convicted of burglary charges in Connecticut and had been accorded favored treatment here in return for his testimony against the defendant.

The defendant used that information effectively during cross-examination to demonstrate to the jury Sarno’s lack of character and credibility and his reasons for testifying against the defendant. Any other evidence of Sarno’s record, under the circumstance of this case, would have been gilding the lily as far as discrediting him where the jury was concerned. We conclude, therefore, that the state’s failure fully to comply with § 744 was insufficient to undermine confidence in the fairness of the trial and, consequently, was not a violation of the defendant’s right to due process. State v. Quintana, 209 Conn. 34, 37-40, 547 A.2d 534 (1988). Further, the defendant had sufficient information to conduct and did, in fact, conduct an effective cross-examination of Sarno. He, therefore, was not deprived of his right of confrontation. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). Because there was no constitutional violation, it was the defendant’s burden to demonstrate the harmfulness of the § 744 violation. State v. Gonzalez, 197 Conn. 677, 681, 500 A.2d 1330 (1985). “On the present record we are not persuaded that the defendant has made the requisite showing of the harmfulness of this Practice Book violation.” State v. Quintana, supra, 40.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-102. burglary in the second degree; class c felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.
      “(b) Burglary in the second degree is a class C felony.”

       “[General Statutes (Rev. to 1985)] Sec. 53a-102. larceny in the second degree: class c felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is two thousand dollars or less, (2) the value of the property or service exceeds five thousand dollars, (3) the property, regardless of its nature or value, is taken from the person of another, or (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less.
      “(b) In any prosecution under subdivision (1) of subsection (a) of this section, evidence of (1) forcible entry, (2) forcible removal of ignition or (3) alteration, mutilation or removal of a vehicle identification number shall be prima facie evidence of a larcenous intent.
      “(c) Larceny in the second degree is a class C felony.”

       “[Practice Book] Sec. 744. —prior record of witnesses “After a witness called by the state has testified on direct examination, the prosecuting authority shall disclose any record of felony convictions of the witness known to the prosecuting authority and any record of felony or misdemeanor charges pending against the witness known to the prosecuting authority.”

       Later, on cross-examination, Sarno admitted that the charges concerning the 2 Lois Lane burglary were nolled as part of a plea bargain in which he pleaded guilty to other Connecticut burglaries.

       We need not decide in this case what information a prosecutor must have in his possession that would reasonably require this inquiry. Obviously, a prosecutor does not have to make inquiry of other personnel in his office concerning a possible criminal record for every state’s witness.

       In the Appellate Court, the defendant, in an attempt to show that the state had access to more information than it disclosed, asked the Appellate Court to take judicial notice of the transcript of the proceeding wherein Samo’s Connecticut sentence of confinement was modified to “time served.” In that proceeding a prosecutor, affiliated with the same state’s attorney’s office as the prosecutor who tried Siano, stated: “I think that it should be borne in mind that [Siano] has a great number of cases to face in the Commonwealth that [haven’t] been disposed of, and I think there are other cases in Vermont and perhaps New Hampshire.” We need not address the question of whether the Appellate Court properly refused to take judicial notice of the transcript because that question was not certified. State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). Further, even if there had been cases pending against the defendant other than the “eighty” or “ninety” burglaries pending in Massachusetts, it would not affect the outcome of this appeal.

       The state also originally argued that the defendant waived his claim for disclosure of Sarno’s criminal record because he had failed to file a pretrial motion for its discovery -under Practice Book § 741. The Appellate Court correctly concluded that this argument was without merit and the state so conceded in oral argument in that court. See State v. Siano, 20 Conn. App. 369, 372 n.2, 567 A.2d 1231 (1989). The state has not briefed or otherwise pursued the waiver claim on this certified appeal. Where a party fails to brief an issue, it is deemed abandoned. DeMilo v. West Haven, 189 Conn. 671, 681-82 n.8, 458 A.2d 362 (1983).

       This court is authorized to rely upon alternative grounds supported by the record to sustain a judgment. Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987); Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987).