author: CALLAHAN, C. J. MCDONALD, J.,

text:
    THOMAS POULOS v. PFIZER, INC., ET AL.
    (SC 15676)
    Callahan, C. J., and Borden, Norcott, McDonald and Peters, Js.

      Argued September 23, 1997
    officially released April 28, 1998

      William C. Longa, with whom was Patrick J. Fitzgerald, for the appellant (named defendant).

      Thomas J. Riley, with whom was Rita Provalas, for the appellee (plaintiff).

      Todd A. Bromberg, pro hac vice, Mark A. de Bernardo, pro hac vice, Peter A. Susser, pro hac vice, and Nancy N. Delogu, pro hac vice, filed a brief for the Institute for a Drug-Free Workplace as amicus curiae.

      Mary E. Kelly and Deborah L. McKenna filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.
   Opinion

CALLAHAN, C. J.

The plaintiff, Thomas Poulos, brought this action in the Superior Court alleging, inter aha, that his employer, the named defendant, Pfizer, Inc., had required him to submit to drug testing in violation of General Statutes § 31-51x and unlawfully had terminated his employment on the basis of the results of those tests. The trial court determined that: (1) the plaintiffs consent to the drug testing was invalid because his consent, having been obtained under threat of termination of his employment, was not voluntary and consequently did not constitute a waiver of his right to challenge the lawfulness of the testing; and (2) the drug testing was unlawful because the defendant lacked reasonable suspicion that the plaintiff was “under the influence of drugs [or alcohol] which adversely affected or could adversely affect” his job performance. Pursuant to General Statutes § 31-51z (a), the trial court awarded the plaintiff damages, interest, attorney’s fees and costs. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The principal issues on appeal are: (1) whether the trial court properly excluded testimony that the defendant could have discharged the plaintiff for attempting to remove the defendant’s property from the workplace, when that testimony was offered by the defendant in support of its claim that the plaintiff had consented voluntarily to the drug test; and (2) whether the trial court properly concluded that the defendant lacked reasonable suspicion to require the plaintiff to undergo a urinalysis drug test. We reverse the judgment and order a new trial.

The record reveals the following facts. On December 20,1990, the plaintiff, who was employed as a materials clerk at the defendant’s Groton plant, acting within his authority, ordered and received a surge protector from one of the defendant’s suppliers. At the end of his work shift, the plaintiff attempted to take the new surge protector out of the defendant’s plant in a box. When a security guard at the plant gate asked him what was in the box, the plaintiff lied, stating that the box was empty. A subsequent search by the security guard revealed the surge protector. The plaintiff then lied again, telling the guard that a friend had brought the surge protector to work and had given it to him, and that he simply was taking it home. According to his own testimony, the plaintiff fabricated that story because he was afraid he would be disciplined for attempting to remove the surge protector from the plant.

Because the plaintiff did not have a property pass for the surge protector, the security guard refused to allow the plaintiff to take it through the plant gate. Instead of proceeding home without the surge protector, however, the plaintiff went back into the plant, discarded the box and placed the surge protector in his desk. The plaintiff knew that the guard would report what had happened at the gate, and the plaintiff feared the consequences. He then separately approached two supervisors, Joseph Feeney and Richard Smith, and requested a property pass to take home a used extension cord. When the supervisors questioned him, the plaintiff again lied, claiming that the item the guard had discovered was the used extension cord. Both of the plaintiffs requests for a property pass were refused, and the plaintiff subsequently left the plant without the surge protector or an extension cord. According to the plaintiffs testimony, when he left the plant he was concerned that he would lose his job as a result of his efforts to remove the surge protector.

The following morning, December 21, 1990, Feeney questioned the plaintiff about the events of the previous day. According to his own testimony, the plaintiff was very concerned for his job, and said to Feeney: “I am in trouble. How can I make this easier on myself?” After again falsely claiming that the item the security guard had discovered in the box was a used extension cord, the plaintiff, when told the guard had made a report, admitted that he had surreptitiously attempted to remove the surge protector from the plant. The plaintiff then claimed that he had attempted to borrow, rather than to steal, the surge protector. The plaintiff was sent home and told not to return to work until December 26. Upon returning home, the plaintiff, on his own initiative, called Marylou Nowak, a personnel supervisor, and made an appointment to discuss the status of his job.

Later in the day on December 21, Feeney and Smith met with Barton Finnegan, the corporate employee responsible for implementing the drug free workplace program at the defendant’s Groton plant, and informed him of the incident involving the surge protector. Finnegan decided that the plaintiff should undergo a fitness for duty evaluation (evaluation), and informed the plant physician, Paul Kanfer, of the incident and of other concerns, such as lateness to work, that had been raised regarding the plaintiffs work performance.

When he reported to work on December 26, 1990, the plaintiff was asked to submit to an evaluation. According to his own testimony, the plaintiff replied, “no problem.” Before signing the consent form, the plaintiff asked what would happen if he did not consent. The plaintiff testified that he had asked that question “to be clever.” At that time, Smith informed the plaintiff that if he did not consent to the evaluation, he would be sent home pending termination. The plaintiff subsequently signed a consent form that stated, inter aha: “I . . . understand . . . that, as part of the . . . evaluation, my urine . . . may be tested .... I understand that if I decline to sign this consent, the [drug testing] will not be conducted but the Personnel Department will be notified and I will be subject to termination of employment. . . .”

At the fitness for duty evaluation, Kanfer was unable to find an alternative explanation for the plaintiff’s behavior and determined that a drug test was appropriate under the circumstances, even though he did not detect any outward physical signs of alcohol or drug use at that time. After signing a second consent form, the plaintiff provided a urine specimen. He then was escorted to the plant gate and told not to return to work until the results of the urinalysis were obtained from the lab.

When the plaintiff returned to work on January 2, 1991, he was informed that the test results had revealed cocaine use. The defendant then offered the plaintiff the opportunity to enroll in its employee assistance program (program). Program participants are required to submit to random drug testing. The plaintiff was told that refusal to participate would result in the termination of his employment. At that time, he agreed to participate in the program. On March 1,1991, his employment was terminated because a random drug test conducted on February 13, 1991, as part of the program was positive for cocaine.

I

The defendant first claims that the trial court improperly excluded testimony that it had offered to support its claim that the plaintiff had waived his rights under § 31-5 lx by voluntarily consenting to the December 26, 1990 drug testing. Specifically, the defendant challenges the exclusion of testimony that the defendant could have terminated the plaintiffs employment solely on the basis of the surge protector incident. We agree with the defendant that the excluded evidence was relevant and material to the defendant’s theory of consent, and that the improper exclusion of that evidence by the trial court was harmful.

In order to resolve the defendant’s evidentiary claim, we first must consider the role and effect, with respect to § 31-5 lx, of employee consent to drug testing. Whether and to what extent a private employee can consent to a drug test and thereby waive the “reasonable suspicion” stricture of § 31-5 lx (a) is a matter of statutory construction and, therefore, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter.” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 32, 699 A.2d 101 (1997).

The language of § 31-51x (a) provides that “[n]o employer may require an employee to submit to a urinalysis drug test . . . .” (Emphasis added.) Because this language provides no guidance as to when, if ever, an employee voluntarily may consent to a urinalysis drug test so that it can no longer be said that the employer has “require[d]” the test, we turn to the relevant legislative history for guidance. See State v. DeFrancesco, 235 Conn. 426, 436, 668 A.2d 348 (1995).

In 1987, § 31-51x was enacted as part of a comprehensive legislative plan regulating workplace drug testing. See Public Acts 1987, No. 87-551 (P.A. 87-551), now codified at General Statutes §§ 31-51t through 31-51aa. The legislative history indicates that P.A. 87-551 was intended to provide the same protections to private employees in Connecticut as those protections that are afforded to employees of the federal government by the fourth amendment to the United States constitution. See 30 H.R. Proc., Pt. 31, 1987 Sess., p. 11384, remarks of Representative William Kiner (“[T]he constitution of the United States protects all of us from unwarranted intrusions by government. What this bill before us seeks to do is ... to prevent or protect the [private] employee from unwarranted intrusions by his employer, which the constitution does not cover.”). Relying primarily on the 1987 legislative history, the United States District Court for the District of Connecticut has interpreted § 31-5 lx to embody a consent requirement analogous to that employed in federal fourth amendment jurisprudence. Doyon v. Home Depot U.S.A., Inc., 850 F. Sup. 125, 128-29 (D. Conn. 1994). The Doyon court concluded that “[§] 31-51x, properly understood as protecting the privacy rights of employees from employer-mandated urinalysis drug testing, is thus analogous to the Fourth Amendment, which protects the privacy rights of employees against Government-mandated urinalysis testing.” Id., 128. We agree with the Doyon court that the issue of voluntary consent to drug testing under § 31-5 lx should be resolved in a manner consistent with federal fourth amendment constitutional law.

The parallel between a private sector employee’s rights under our statutory scheme and a federal employee’s rights under the fourth amendment obviously would allow an employee to consent to drug testing and waive his rights under § 31-5 lx, just as he could waive his fourth amendment rights. See Schneckloth v. Bustamante, 412 U.S. 218, 233, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Moreover, allowing an employee the ability to consent to drug testing, and thereby eliminating the risk to the employer that it will be forced to prove reasonable suspicion in future litigation is supported by other legislative history indicating a strong legislative preference for employee assistance programs, rather than summary termination of employment for misconduct. During the floor debates on P.A. 87-551, Representative J. Peter Fusscas stated that “whatever policy that the legislature comes out with should endorse the treatment, the identification and helping people overcome a drug dependency problem.” 30 H.R. Proc., Pt. 31, 1987 Sess., p. 11406. Representative Frederick A. Gelsi also expressed concern that those with a drug dependency should be given a chance at rehabilitation. Id., pp. 11400-11402. Similar sentiments were expressed during the floor debates on Public Acts 1991, No. 91-271, § 2, which amended § 31-51x to provide for the promulgation of regulations by the commissioner of labor to define the term “reasonable suspicion.” See 34 H.R. Proc., Pt. 16, 1991 Sess., p. 5889, remarks of Representative Reginald G. Beamon (“we should discuss employee assistance programs . . . it’s very, very difficult to fund a good [employee assistance] program”); id., p. 5891, remarks of Representative Norma Gyle (when the 1987 legislation was enacted “[w]e wanted to make sure there was access [to employee assistance programs]”); id., p. 5893, remarks of Representative Joseph A. Adamo (“I could not agree more with the concept of [employee assistance programs] .... I think that we ought not test and fire”); id., p. 5901, remarks of Representative Lee A. Samowitz (“I think that the policy of this state should be one of helping and not one of casting aside those who have troubled pasts, those who have a problem”).

If employees were unable to waive their rights under § 31-5 lx under circumstances similar to those of this case, there would be an incentive for employers simply to fire employees, such as the plaintiff, who exhibit poor judgment and who may or may not have a drug problem. By doing so, employers would avoid the risk of being second-guessed by the courts on the issue of reasonable suspicion. As a result, employees would lose the option of agreeing to a drug test, keeping their jobs and receiving appropriate treatment if necessary. The legislative history clearly indicates that the legislature did not intend such a result.

We turn now to a brief analysis of the fourth amendment consent search jurisprudence before analyzing the defendant’s specific evidentiary claim. Government employees generally may not be required, as a condition of employment, to relinquish a constitutional right. Pickering v. Board of Education, 391 U.S. 563, 567-68, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Government employees, therefore, generally may not be required to submit to an unreasonable search as a condition of continued employment. Doyon v. Home Depot U.S.A., Inc., supra, 850 F. Sup. 129. An employee, however, may waive his right to challenge the constitutionality of a search by voluntarily consenting to that search. Zap v. United States, 328 U.S. 624, 628, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946), judgment vacated on unrelated grounds, 330 U.S. 800, 67 S. Ct. 857, 91 L. Ed. 1259 (1947); Mack v. United States, 814 F.2d 120, 125 (2d Cir. 1987) (because evidence before trial court established that employee voluntarily had given consent to drug testing, there was no need for trial court to have considered whether testing was supported by reasonable suspicion); Doyon v. Home Depot U.S.A., Inc., supra, 129.

“To ascertain whether consent is valid, courts examine the totality of all the circumstances to determine whether the consent was a product of that individual’s free and unconstrained choice, rather than a mere acquiescence in a show of authority.” (Emphasis added; internal quotation marks omitted.) United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). Voluntariness “ ‘can be found from an individual’s words, acts or conduct.’ ” United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993). “No one factor is controlling.” (Emphasis added.) State v. Torres, 197 Conn. 620, 627, 500 A.2d 1299 (1985); Slate v. Reddick, 189 Conn. 461, 469, 456 A.2d 1191 (1983). A conclusion about consent necessarily involves an inquiry into the putative consenter’s state of mind. Dotson v. Warden, 175 Conn. 614, 619-20, 402 A.2d 790 (1978).

Consent given for the purpose of obtaining a legitimate benefit may constitute a valid waiver of fourth amendment rights. Zap v. United States, supra, 328 U.S. 628 (individual who worked as independent contractor for government waived his fourth amendment right by agreeing to contract provision requiring him to submit to inspections; inspections were required as condition of becoming government contractor); see generally Mararri v. WCI Steel, Inc., 130 F.3d 1180 (6th Cir. 1997) (last chance agreement requiring urine testing as condition of continued employment valid under traditional contract principles where employer had cause for firing employee and employee bargained for tests in order to retain job). The mere fact that an individual is “faced with a difficult choice of options which may have exerted pressure on him” does not “[render] apparent consent ineffective.” State v. Torres, supra, 197 Conn. 627 (defendant consented because of belief he might be searched in any event). Consent that is motivated by a desire to cooperate, rather than given merely in acquiescence to a show of authority, is valid. McMorris v. Alioto, 567 F.2d 897, 901 (9th Cir. 1978) (attorney’s consent to courthouse search; search was price of entering to discharge duties as attorney); see also United States v. Lloyd, 868 F.2d 447, 451-52 (D.C. Cir. 1989) (consent motivated by desire to deflect suspicion by showing individual had nothing to hide); United States v. Culp, 472 F.2d 459, 461 (8th Cir.), cert. denied, 411 U.S. 970, 93 S. Ct. 2161, 36 L. Ed. 2d 692 (1973) (consent motivated by desire to negotiate leniency for third party; consent was given under threat that search warrant would be obtained); State v. Niemszyk, 303 A.2d 105, 109 (Me.), cert. denied, 414 U.S. 1042, 94 S. Ct. 544, 38 L. Ed. 2d 333 (1973) (consent motivated by desire to establish noninvolvement; consent was given under threat of being “taken ‘downtown’ ” to police station). In the present case, therefore, proper determination of whether the plaintiffs consent was given voluntarily required a “careful sifting of the unique facts and circumstances of [this] case”; Schneckloth v. Bustamonte, supra, 412 U.S. 233; to determine the plaintiffs state of mind at the time he consented.

Having established the general parameters of the law of consent searches, we now turn to the specific theory of consent that the defendant sought to present to the trial court. Throughout trial, the defendant sought to adduce evidence that, from the moment the plaintiff was stopped by the security guard, he was concerned that he would lose his job for attempting to remove the defendant’s properly from the plant without appropriate authorization. The plaintiffs own testimony indicates that on December 20,1990, the plaintiff fabricated his story about receiving the surge protector from a friend and his story about the used extension cord because he was afraid that he would be disciplined for improperly attempting to take the surge protector home. When the plaintiff left the plant on December 20, he feared that he would lose his job because of that attempt. When confronted about the surge protector incident on December 21, 1990, the plaintiff was very concerned for his job, and, before the specter of termination was ever raised by the defendant, the plaintiff asked what he could do to “make this easier on [himself].” That afternoon, concern about being disciplined for the surge protector incident prompted the plaintiff to make an appointment to meet with Nowak, a personnel supervisor. When told on December 26, 1990, that, because of the surge protector incident, the defendant wanted him to submit to an evaluation, the plaintiff replied “no problem.” Before signing the consent form, however, the plaintiff, only “to be clever,” asked what would happen if he did not consent. Prior to signing, the plaintiff did not voice any objection to the evaluation, and, in fact, he stated three times that he had “no problem” submitting to drug testing. During his meeting with Nowak, which took place on December 26 after he had submitted to the drug testing, the plaintiff again expressed concern about being disciplined for the surge protector incident. He did not, however, voice any objection to the drug testing.

In an attempt to provide further support for its theory that the plaintiffs motivation for consenting to the drug test was a reasonable concern that he might be fired for the surge protector incident alone, at trial the defendant inquired of Finnegan if attempted theft and lying were grounds, under company policy, for termination of employment. The plaintiff objected, asserting that the defendant had not pleaded mixed motive as an affirmative defense and that, therefore, Finnegan’s testimony would not be relevant. The defendant argued that, in addition to being relevant to whether the defendant had an independent reason for firing the plaintiff under a mixed motive analysis; see Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96,106, 671 A.2d 349 (1996) (once plaintiff establishes prima facie case that employer considered impermissible factor in terminating employee, defendant employer must prove it would have made same decision without impermissible factor); the proffered testimony also was “relevant as to . . . what was [the plaintiffs] state of mind as of the time he was asked to either consent or not consent to the test. And we are very much going to contest the issue of whether these were consensual urine sample tests. We believe they were, because he knew he was going to be terminated or could be terminated for the behavior of the afternoon . . . .” The court excluded the testimony without explicitly stating the grounds for its ruling.

Testimony that the defendant legitimately and reasonably could have terminated the plaintiffs employment solely on the basis of the surge protector incident was relevant to the defendant’s theory of consent, namely, that the plaintiff agreed to the testing because he legitimately feared that he would be disciplined for the surge protector incident. The question of whether consent to a search was given voluntarily is normally to be decided by the trial court upon all the evidence before the court together with the reasonable inferences to be drawn from that evidence. State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); Dotson v. Warden, supra, 175 Conn. 619. Finnegan’s testimony, when taken together with the plaintiffs own testimony regarding his state of mind at the time he consented to the December 26 testing, is capable of supporting an inference that the plaintiff consented voluntarily, out of a legitimate fear of termination as a result of his attempted theft and dishonesty. We conclude, therefore, that the trial court improperly excluded Finnegan’s testimony and thereby incorrectly precluded evidence concerning the plaintiffs state of mind at the time he consented to the December 26 testing.

“We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). It is reasonably likely that the result in this case would have been different if evidence regarding the plaintiffs state of mind at the time he consented to the December 26 testing, including Finnegan’s testimony concerning company policy, had been admitted, considered and credited. We conclude, therefore, that the trial court’s failure to consider testimony material to the plaintiffs state of mind at the time he consented to the December 26 testing was harmful and, therefore, the defendant is entitled to a new trial.

II

The defendant also claims that the trial court improperly determined that it had lacked the “reasonable suspicion” necessary, pursuant to § 31-51x (a), to require the plaintiff to submit to a urinalysis. Although we already have determined that a new trial is appropriate, we address certain elements of the defendant’s claim to the extent that those elements are likely to arise again on retrial.

The trial court concluded that “[i]t was Dr. Kanfer who determined that [the plaintiff] should undergo the drug test on December 26, 1990.” Therefore, in order to ascertain whether the defendant had had a reasonable suspicion that would justify the drug test pursuant to § 31-51x, the court focused its attention upon the facts available to Kanfer. Because, according to the trial court’s findings, Kanfer knew only about the surge protector incident and an attendance problem in 1989, the trial court concluded that the defendant had lacked the requisite reasonable suspicion.

Although we concur with the trial court’s determination that the surge protector incident, coupled with an attendance problem the previous year, would not justify a drug test under § 31-5 lx, we agree with the defendant’s claim that the trial court’s factual finding that Kanfer was the sole decision maker is clearly erroneous. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 449, 680 A.2d 147 (1996).

Kanfer was neither the sole decision maker nor the primary decision maker. The decision to refer the plaintiff for an evaluation was made by Finnegan. The defendant’s Substance Abuse Program Guidelines provide in relevant part that “[t]esting for substance abuse, as part of a fitness for duty evaluation, will be conducted where an employee manifests aberrant behavior and: 1) the supervisor is unable to determine the cause of the behavior after discussion with the employee, or the supervisor has reasonable suspicion to believe that substance abuse is involved, 2) the supervisor has discussed the problem with the personnel manager and the operating unit head, where applicable, and 3) a medical authority (physician or nurse) agrees that a urinalysis, breath test and or blood test is appropriate.” The medical authority’s role in the evaluation is either to ratify or countermand, on the basis of medical findings, the supervisor’s decision to require drug testing. Accordingly, the defendant’s decision to require the plaintiff to submit to drug testing cannot be attributed solely to Kanfer. While Kanfer participated in the decision-making process, it is apparent from the record that Finnegan was the primary decision maker.

In addition to its conclusion that, on the basis of Kanfer’s knowledge alone, there was no reasonable suspicion, the trial court also concluded, in the alternative, that “[e]ven if we were to assume that Finnegan made the decision to have [the plaintiff] drug tested and made a determination of reasonable suspicion, the factors that Finnegan would have relied upon” do not support a finding of reasonable suspicion. The trial court then assumed, without making findings of fact, that Finnegan had knowledge of: (1) the surge protector incident; (2) the alleged short notice vacation days and half days; (3) the plaintiffs inability to get along with his coworkers; and (4) the plaintiffs borrowing of money from the employee coffee fund that he was charged with administering. Relying on the assumed existence of this knowledge in Finnegan, the trial court nonetheless concluded that those “factors ... do not, singularly or considered together, indicate drug use or impairment by [the plaintiff] on or off duty.”

We express no opinion on the issue of whether the information available to Finnegan would suffice to create a reasonable suspicion because a proper resolution of the issue would require us to usurp the trial court’s function by making the requisite factual findings or to remand the case to the trial court for such findings. Because we have already determined that a new trial is appropriate owing to the evidentiary error, we need not take either course.

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

In this opinion BORDEN, NORCOTT and PETERS, Js., concurred.

MCDONALD, J.,

concurring. I concur with the result and the reasoning of the majority. I should only add that, should there be no discovery bar to the admission of the evidence at the retrial, evidence of the collective knowledge of an employer’s supervisory personnel should be admissible as to the existence of reasonable suspicion. In this case, there was evidence that Pfizer knew of the plaintiffs earlier use of cocaine while in its employ.

As the majority notes, we have equated our statute’s protections with the protections under the fourth amendment to the United States constitution. Fourth amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971); see 2 W. LaFave, Search and Seizure (3d Ed. 1996) § 3.5 (b), p. 259 n.46. “Reasonable suspicion is a lesser standard [for belief] than probable cause.” Wrightsell v. Chicago, 678 F. Sup. 727, 732 (N.D. Ill. 1988); Smith v. White, 666 F. Sup. 1085, 1089 (E.D. Tenn. 1987). The collective knowledge of the employer should determine reasonable suspicion for the drug testing.

       The plaintiffs second amended complaint also alleged intentional infliction of emotional distress and invasion of privacy. The trial court found for the defendant on both of those counts, and the plaintiff has not challenged those rulings in this appeal.

       In addition to the named defendant, Pfizer, Inc., PharmChem Laboratories, Inc., was originally a defendant in this proceeding. Thereafter, the case was withdrawn as to that defendant. Hereafter, we refer to Pfizer, Inc., as the defendant.

       General Statutes § 31-51x provides: “(a) No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance. The Labor Commissioner shall adopt regulations in accordance with chapter 54 to specify circumstances which shall be presumed to give rise to an employer having such a reasonable suspicion, provided nothing in such regulations shall preclude an employer from citing other circumstances as giving rise to such a reasonable suspicion.
      “(b) Notwithstanding the provisions of subsection (a) of this section, an employer may require an employee to submit to a urinalysis drug test on a random basis if (1) such test is authorized under federal law, (2) the employee serves in an occupation which has been designated as a high-risk or safety-sensitive occupation pursuant to regulations adopted by the Labor Commissioner pursuant to chapter 54, or (3) the urinalysis is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates.”

       General Statutes § 31-51z (a) provides: “Any aggrieved person may enforce the provisions of sections 31-51t to 31-51aa, inclusive, by means of a civil action. Any employer, laboratory or medical facility that violates any provision of sections 31-51t to 31-51aa, inclusive, or who aids in the violation of any provision of said sections shall be liable to the person aggrieved for special and general damages, together with attorney’s fees and costs.”

       The defendant’s Substance Abuse Program Guidelines provide in relevant part that “[t]esting for substance abuse, as part of a fitness for duty evaluation, will be conducted where an employee manifests aberrant behavior and: 1) the supervisor is unable to determine the cause of the behavior after discussion with the employee, or the supervisor has reasonable suspicion to believe that substance abuse is involved, 2) the supervisor has discussed the problem with the personnel manager and the operating unit head, where applicable, and 3) a medical authority (physician or nurse) agrees that a urinalysis, breath test and or blood test is appropriate.”

       Pursuant to the plaintiffs participation in the program, random drug tests were administered on January 7, January 23 and February 13, 1991. The February 13 testing was positive for cocaine.

       The defendant also challenges the exclusion of certain testimony that was offered to establish voluntary consent to the subsequent tests administered pursuant to the employee assistance program. Because a new trial is required with respect to the December 26, 1990 testing, and because any determination of the voluntariness of the plaintiffs participation in the employee assistance program under § 31-51x(b) (3) necessarily depends on the validity of the first test, the validity of the subsequent tests is an appropriate issue to be determined on retrial.

       As presented to the Judiciary Committee, the original version of the 1991 legislation provided for employee assistance programs funded by the employers. That provision was removed in committee as part of a compromise with certain large employers that opposed mandatory funding of employee assistance programs. 34 H.R. Proc., Pt. 16, 1991 Sess., p. 5893, remarks of Representative Adamo. A subsequent floor amendment on the same issue eventually was withdrawn. Id., p. 5903.

       The court in Doyon found that under the circumstance of that case, the employee’s consent was not voluntary because the employee legitimately feared that his employment would be terminated if he refused to consent. Doyon v. Home Depot U.S.A., Inc., supra, 850 F. Sup. 130. In Doyon, the plaintiff was forced to choose between two alternatives: (1) submitting to the drug test; or (2) being discharged for not submitting. Id. The defendant did not claim that the plaintiff had consented to the testing for any reason other than to avoid discharge for failing to consent. In the present case, however, as discussed later in this opinion, the evidence is capable of supporting an inference that the plaintiff consented to the testing in order to avoid being disciplined for the surge protector incident rather than to avoid being discharged for refusing to consent.

       See also S. Kreimer, “Allocational Sanctions: The Problem of Negative Rights in a Positive State,'' 132 U. Pa. L. Rev. 1293, 1383-85 (1984) (“If the . . . right in question is designed to secure an area of autonomy for the citizen ... it would seem that the exercise or nonexercise within that area should be in the hands of the citizen. . . . [T]o refuse . . . that option appears to limit rather than extend . . . choice. . . . Thus, in situations where no real choice exists vis-a-vis the proffered incentive, one cannot claim . . . waiver. . . . Nonetheless, there are events where it appears that a real choice is made . . . .”).

       The defendant presented its consent argument to the trial court in its posttrial brief as follows: “The events leading to the urinalysis which was performed on December 26,1990, demonstrate that [the plaintiff] consented to that drug test. At trial, [the plaintiff] testified that he told Mr. Smith that he had ‘no problem’ submitting to a fitness for duty evaluation when they met on December 26, 1990, following the incident of theft and lying. . . . Likewise, Mr. Feeney testified that he specifically recalled [the plaintiff] stating that he had ‘no problem’ taking the test, that he would do it, and that he affirmatively represented that he was not on drugs. . . . [The plaintiff] testified that he was willing to submit to the test because he wanted to prove to his bosses at [the defendant] that he did not have a drug problem at that time. . . . [The plaintiff] also expressly indicated that he consented to the fitness for duty evaluation on the original consent form which was provided to him by [the defendant], . . .
      “[The plaintiff] also admitted that he never told Mr. Smith, Mr. Feeney, or Dr. Kanfer that he did not want to submit to the urinalysis. ... In fact, Mr. Smith testified that since [the plaintiff] was concerned about losing his job because of his theft and repeated lies, he did not seem to be concerned about submitting to a drug test. . . . Likewise, while both Mr. Smith and Mr. Feeney testified that they remembered [the plaintiff] simply signing the consent form to undergo the fitness of duty examination, neither of them recalled any discussion with [the plaintiff] about what would happen, if anything, if he did not agree to the examination. . . . Finally, when [the plaintiff] reported to Dr. Kanfer for the examination, he willingly signed the consent form provided to him by Dr. Kanfer and he provided a urine sample for use in a urinalysis drug test. These facts demonstrate that [the plaintiff] voluntarily consented to the urinalysis drug tests and that he was not coerced by [the defendant] to submit to the tests.”

       The defendant again claims on appeal that Finnegan’s testimony was admissible under a mixed motive analysis. We express no opinion as to that claim.

       When considering the consent issue both during and after trial, the trial court apparently concluded that, once the specter of the plaintiffs termination had been raised, his consent could not have been voluntary, regardless of the other evidence adduced at trial regarding the factual backdrop against which the plaintiffs consent had been obtained and the plaintiffs actual state of mind at the time he consented. Referring to the language of § 31-5lx (a), which provides that “[n]o employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion,” the court stated during trial, “I [interpret] being required [to mean that] the employee is told if you don’t sign the form and consent, you will be fired. To me that is not voluntarily agreeing to take a test.” In its memorandum of decision, the trial court concluded that “[the defendant’s] claim that [the plaintiff] consented to this test is rebutted by the ‘consent’ form it required [the plaintiff] to sign before the test was conducted. . . . The consent form authorizes [the] defendant to administer a urinalysis drug test and cautioned [the plaintiff] that if he refused to sign the consent form he was subject to termination. . . . Further, as [the] defendant’s own drug testing policy malees clear, [the plaintiff] did not have a choice as to whether or not he could consent to the drug test. An employee’s refusal to be tested for substance abuse will lead to automatic termination.”
      Although we do not address it as an independent claim of error, we note that the trial court’s consideration of the threat of termination alone, and without regard to other evidence relevant to the plaintiffs state of mind when he consented, exacerbates the harm caused by the improper exclusion of Finnegan’s testimony. We emphasize, therefore, for purposes of retrial, that the issue of the voluntariness of one’s consent requires a careful consideration of the totality of the circumstances. See Schneckloth v. Bustamonte, supra, 412 U.S. 233; State v. Torres, supra, 197 Conn. 627.

       See footnote 3 of this opinion.

       The defendant also maintains that, as a matter of statutory construction, under § 31-51x, it is the collective knowledge of an employer’s supervisory personnel that is relevant to the existence of reasonable suspicion because the statute provides that “the employer” must have reasonable suspicion. The defendant claimed at trial that under such a collective knowledge standard, Smith’s knowledge regarding an earlier cocaine problem of the plaintiff would support a finding of reasonable suspicion. Because the defendant did not disclose its intent to rely on Smith’s knowledge of the plaintiffs earlier cocaine use during the discovery phase of the trial, and because Smith's testimony in that regard was excluded by the trial court for that reason, we need not consider whether the collective knowledge of all supervisory personnel is attributable, forpuiposes of § 31-5 lx (a), to the employer.

       Without further factual findings, we also cannot answer the defendant’s claim that the trial court improperly failed to give due consideration to the testimony of its expert, Bruce Rounsaville, a psychiatrist whose deposition testimony regarding the common indicia of drug use was introduced as an exhibit at trial. In its memorandum of decision, the trial court stated: “The court has reviewed and rejected the testimony of Bruce Rounsaville, M.D. for the reason that the issue is one of law, not of psychology.” Although we agree with the defendant that the trial court’s summary rejection of Rounsaville’s testimony was error, we cannot determine whether that error was harmful without factual findings regarding the information upon which Finnegan claimed to have relied to support his suspicion that the plaintiff had been using drugs. Without such findings, we cannot assess the probative value of the expert’s testimony or its likely effect upon the outcome of the trial.


source: Caselaw Access Project

author: NORCOTT, J. MCDONALD, J.,

license: Public Domain

text:
    JAMES B. IRWIN, SR. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF LITCHFIELD
    (SC 15714)
    Borden, Berdon, Norcott, Katz and McDonald, Js.
    Argued January 22
    officially released April 28, 1998

      Gail E. McTaggart, for the appellant (defendant).

      William C. Franklin, with whom, on the brief, was Robert L. Fisher, Jr., for the appellant (intervening defendant).

      Kenneth R. Slater, Jr., for the appellee (plaintiff).
   Opinion

NORCOTT, J.

The plaintiff, James B. Irwin, Sr., sought approval of a four lot subdivision on approximately fifteen acres of property that he owns in Litchfield, with a lot configuration consisting of two interior lots, necessitating a special exception under article VI, § 5A, of the Litchfield zoning regulations. The dispositive issue in this certified appeal is whether the Appellate Court was correct in reversing the trial court’s affirmance of the denial of the plaintiffs special exception application by the defendant, the planning and zoning commission of the town of Litchfield (zoning commission).

The defendants appeal from the judgment of the Appellate Court, claiming that it improperly concluded that the zoning commission cannot exercise any discretion in deciding a special exception application. The defendants also claim that the Appellate Court improperly substituted its own judgment for that of the trial court and the zoning commission, and improperly remanded the case with direction for the zoning commission to approve the special exception and subdivision applications. We agree and, accordingly, we reverse the judgment of the Appellate Court.

The following facts are undisputed. In connection with his plan to develop a residential subdivision, the plaintiff split off a 14.9 acre parcel of land from a larger eighty-three acre parcel of his real property adjacent to Hutchinson Parkway and Butternut Road in Litch-field. The property is located in an R-80 residential zoning district, which requires a two acre minimum lot size. Evidence in the record indicates that the property has steep slopes over 20 percent grade, a streambelt, ledge outcroppings and a watercourse through the property making it especially difficult to develop. The neighborhood is rural, contains historical farmhouses, and is generally characterized by large parcels of land used for farming.

The plaintiff, seeking to develop the 14.9 acre parcel of land, submitted applications for a five lot subdivision with the zoning commission and with the Litchfield conservation commission (conservation commission). The conservation commission approved a single wetlands crossing, but denied the application for the general subdivision plan. The plaintiff subsequently withdrew the application pending before the zoning commission.

In order to avoid a second wetlands crossing for an additional driveway, the plaintiff then submitted a second application for a four lot subdivision with two of the lots sharing a common driveway, which included a proposal to restrict permanently development on more than 40 percent of the property. The zoning commission denied the application, however, because the common driveway was intended to serve only two full frontage lots and the zoning regulations permit common driveways only to interior lots or to three or more full frontage lots. Irwin v. Planning & Zoning Commission, 45 Conn. App. 89, 91-92, 694 A.2d 809 (1997).

On December 7, 1994, the plaintiff then submitted a third subdivision application to the zoning commission in which he reconfigured the four lot design so that the two lots with the common driveway would qualify as interior lots. Because interior lots are permitted only by special exception, the plaintiff also submitted an application for special exception for the two proposed interior lots. This special exception application is the subject matter of this appeal.

Pursuant to General Statutes § 8-3c (b), the zoning commission held public hearings on the plaintiffs application on March 6, and April 3, 1995. On May 15, 1995, the zoning commission held its next meeting when it denied the special exception application by a five to two vote. The zoning commission then sent a letter to the plaintiff stating that “the Subdivision application with the proposed interior lots [is] too intensive for this limited and fragile piece of land and it does not comply with the following standards and requirements of the Zoning Regulations relating to a Special Exception for an Interior Lot(s) in a subdivision .... The Commission finds that the application does not meet the requirement that ‘[t]he applicant shall show that the design and layout of the subdivision with the proposed interior lots will be in keeping with the Town Plan of Development.’ . . . The Commission finds that the application does not meet the requirement that ‘[t]he applicant shall show that the subdivision with the proposed interior lots will preserve important natural resource features as identified on the Town Plan of Development maps and other studies adopted by the Commission, including, but not limited to streambelt lands, farmlands (especially active farmland), land on ridge lines, and will result in the preservation of the natural landscape along a Town road or the view from a Town road or proposed subdivision road.’ . . . The Commission finds that the proposed subdivision with the interior lots does not comply with ‘the existing and probable future character of the neighborhood in which the use is located.’ . . . The Commission finds that the proposed subdivision with the interior lots does not comply with ‘[t]he provision for creation of a harmonious relationship between proposed and existing buildings in the vicinity; specifically with regard to the visual relationship of said buildings in terms of their terrain, use, scale proportions and, particularly, the historic significance of the existing buildings.’ ”

Pursuant to General Statutes § 8-8 (b), the plaintiff appealed from this denial to the Superior Court,which granted Karen A. Grimes, an abutting property owner, permission to intervene in the appeal. The trial court subsequently dismissed the plaintiffs appeal and affirmed the decision of the zoning commission, on the basis that the zoning commission’s decision was adequately supported by the record.

The trial court found that all four reasons offered by the zoning commission for denial of the special exception were pertinent considerations that were adequately supported by the record before it. Specifically, the trial court found that the zoning commission’s finding “that the land is fragile is supported by the testimony of the experts as to the small buildable area, the streambelt concerns, the soil erosion concerns relating to steep slopes, [and] the septic system issues relating to steep slopes and soil types.” The court also found that the zoning commission’s denial for inconsistency with the town plan, which “specifically designates properties along Beach Street as ‘prime and important farmlands’ for preservation and advises that all ‘private and public options shall be utilized for preservation,’ ” was adequately supported by the record. Furthermore, the trial court found that denial based on intensity was warranted because “the creation of the interior lots increases by one the number of lots possible on the property . . . .”

The plaintiff sought and was granted certification to appeal to the Appellate Court. The Appellate Court reversed the judgment of the trial court and remanded the case with direction for the zoning commission to approve the special exception and subdivision applications. The Appellate Court concluded that because the plaintiffs plan satisfied all relevant requirements of the zoning regulations, the trial court had improperly upheld the zoning commission’s decision because the commission had no discretion to deny the special exception. Irwin v. Planning & Zoning Commission, supra, 45 Conn. App. 101. This appeal followed.

The defendants claim that the Appellate Court improperly concluded that the zoning commission cannot exercise any discretion in deciding a special exception application, and that the Appellate Court substituted its own judgment for that of the trial court and the zoning commission, resulting in an improper remand of the case. We agree.

In its decision, the Appellate Court stated: “ ‘Since the special permit is an administrative device, the formal rule is that the granting agency cannot exercise any discretion in deciding whether to approve an application. Its role is to carry out the policy established by . . . the zoning commission that wrote the regulations. If the standards for issuance of the special permit have been met by the application, a permit must be issued.’ T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 178-79.” Irwin v. Planning & Zoning Commission, supra, 45 Conn. App. 95. This is an incorrect statement of the law with regard to special permits.

We previously have recognized that the special permit process is, in fact, discretionary. In Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994), we concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, we have stated that “before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood. ” Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 613, 610 A.2d 1205 (1992). The Appellate Court has acknowledged that “Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process. ... If the special permit process were purely ministerial there would be no need to mandate a public heating.” (Emphasis added.) Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 6-7, 613 A.2d 1358 (1992); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1996 Sup.) p. 64.

“When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity. A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 184-85, 355 A.2d 91 (1974); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969). Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The [Appellate Court and] trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 117, 186 A.2d 377 [1962]; Stern v. Board of Zoning Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953]. In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 [1963]. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988).” (Internal quotation marks omitted.) Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 72, 588 A.2d 624 (1991).

The plaintiff argues that “the Commission has no independent discretion to deny a plan which satisfies the standards contained in the special permit regulations.” Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations. If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the special permit regulations are met, then it can no longer deny the application. The converse is, however, equally true. Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it.

Having determined that the zoning commission could exercise discretion in its determination of the special exception application at issue, it is now necessary to determine whether the zoning commission abused that discretion. If, in denying the special permit, the zoning commission construed the special exception regulations beyond the fair import of their language, then the zoning commission acted in an arbitrary and illegal manner. See Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 218 Conn. 72. “In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations.” Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 267-68, 196 A.2d 758 (1963). “[O]n factual questions ... a reviewing court cannot substitute its judgment for that of the agency.” Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 401, 610 A.2d 620 (1992). If there is conflicting evidence in support of the zoning commission’s stated rationale, the “reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission.” Whisper Wind Development Corp. v. Planning & Zoning Commission, supra, 32 Conn. App. 523. “The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987).

The defendants claim that the application was properly denied because the plaintiff had failed to comply with all of the standards of the special exception set forth in the zoning regulations. Interior lots may be approved subject to the special exception standards of article VI, § 5A, of the zoning regulations, which contains specific standards and incorporates the general standards of article VIII. All of these standards must be met for approval of interior lots.

The zoning commission found that the application failed to comply with the standards enumerated in article VI, § 5A (5) (a) and (b), and article VIII (4) (b) and (c). See footnotes 1 and 6 of this opinion. In addition, the zoning commission found that the interior lot design was “too intensive development for a limited and fragile piece of land . . . .” The second reason offered by the zoning commission, based on article VI, § 5A (5) (b), was that “[t]he Commission finds that the application does not meet the requirement that ‘ [t]he applicant shall show that the subdivision with the proposed interior lots will preserve important natural resource features as identified on the Town Plan of Development maps and other studies adopted by the Commission, including, but not limited to streambelt lands, farmlands (especially active farmland), land on ridge lines, and will result in the preservation of the natural landscape along a Town road or the view from a Town road or proposed subdivision road.’ ”

The plaintiff asserts that the Appellate Court correctly determined that the standard offered in the zoning commission’s second reason was insufficient to deny his application, because the plan of development does not recommend any change to the zoning district where the plaintiffs property is located. He further asserts that “the [p]lan [of development] does not articulate standards for determining whether a particular development plan protects those resources but, instead, simply defines those resources and recommends that they be protected by voluntary efforts or through adoption of specific regulatory standards.” The plaintiff also points out that “[generalized policy goals stated in a municipal plan of development . . . cannot serve as the basis for denying a specific land development proposal,” and cites Smith v. Zoning Board of Appeals, 227 Conn. 71, 88, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994), as support for this proposition. We are unpersuaded.

The zoning regulations refer to the plan of development in order to provide some guidance for applicants in interpreting the standards enumerated in the regulations. In Smith, we acknowledged that “[b]ecause the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an inteipretive tool.” Id. In that case, we agreed with the Appellate Court that the board incorrectly had denied the plaintiffs subdivision on the ground that it was inconsistent with the town plan. Id. In the present case, however, the zoning commission had broader discretion to make its determination about the plaintiffs special exception application than it would have had with a subdivision application. Moreover, the plaintiffs application was denied due to noncompliance with the special exception regulations, which refer to the plan of development, not because it did not comply with the plan of development. Indeed, the plan of development was used only as an aid for interpreting the standards in the regulations.

Article VI, § 5A (5) (b), of the zoning regulations identifies certain natural resource features for preservation including streambelts, farmlands, ridge lines and natural landscapes, and it states that the list is not exhaustive and other natural resource features are identified in the plan of development. The maps included in the plan of development classify Butternut Brook as a protected minor streambelt. The plan of development also lists the primary reasons for and benefits of streambelt preservation, including the need “to curtail pollution, silt-ation, sedimentation and erosion; to protect water quality; to reduce the hazard of flood loss; to promote scenic beauty; to provide quality recreation areas; to protect important ecosystems; to link wetlands with corridors of open space; and to enhance the quality of life by providing breathing space and visual balance to urban uses.” Litchfield Plan of Development, Environment and Historic Plan (1984).

The potential danger to the streambelt from the plaintiffs application is well documented in the record. Although there was some conflicting testimony, Thomas Daly, a civil engineer, submitted a report to the zoning commission noting that “the proposed piping of intermittent watercourses [would eliminate] . . . any natural mitigation which is now occurring from pollutants that may be flowing through the pipes under Hutchinson Parkway” causing pollutants to flow directly into Butternut Brook. Another report by James G. MacBroom, a professional engineer, stated that there is “erosion potential” from the piping of stormwater from Hutchinson Parkway. Also, MacBroom indicated in a report that the proposed driveway would bury an active spring that supplies water to the stream. In addition, a wetlands evaluation of the plaintiffs application recommended that “[b]ased upon the dominant upland soil types” the buffer area to preserve the streambelt should “extend 200-300 feet upslope of Butternut Brook or associated wetlands,” and noted that the proposed construction activities on the four building lots would occur within 200 feet of the wetlands associated with the brook. Thus, the zoning commission acted within its discretion in finding that the streambelt would not be adequately preserved by the plaintiffs application.

Next, the regulations identify land on ridge lines as a significant natural condition worthy of preservation and special treatment. The plan of development refers to ridge tops, which can be recognized by “shallow to bedrock soils,” and provides that ridge tops are “highly visible and key parts of our physical environment . . . .” Litchfield Plan of Development, Environment and Historic Plan (1984). Ridge tops “tend to be somewhat self-preserving, because of the steepness and the difficulty of meeting the requirements of the Sanitary Code for human use.” Id.

Submissions to the record contained in Daly’s report show that slopes greater than 20 percent and ledge exist on the property, severely limiting the buildable area of the lots. The percentage of total lot area that is buildable for lots three and four, which are the subject of the special exception, are 15 percent and 26 percent respectively. His engineering report suggested that due to the steep slopes, “this type of land ... is very difficult to develop and is poorly suited for a residential subdivision.” The same report also observed that “the amount of ledge and proximity of ledge to the proposed septic systems was inconsistent with the plan,” which can adversely impact upon groundwater and wetlands. A report completed by Kenneth C. Stevens, Jr., a soil scientist, stated that “[cjonstruction of septic fields on steeply sloping, compact glacial till soils pose special design considerations that must take into account perched watertables, extremely slow permeability, hydraulic capacity and the possibility of effluent breakout at the toe of slope of the fill,” and that “[t]he grading plan does not adequately address how surface runoff is going to be diverted around the houses and septic fields.”

On the basis of these reports, which were before the zoning commission, we conclude that the record adequately supports the zoning commission’s decision to deny the special exception. In view of the potential detriments to the streambelt and land on ridge lines, the zoning commission’s second finding of noncompliance with the special exception regulations is adequately supported by the record and, as such, we must uphold the decision of the zoning commission.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion BORDEN, BERDON and KATZ, Js., concurred.

MCDONALD, J.,

dissenting. I respectfully disagree and would affirm the opinion of the Appellate Court for the reasons stated therein.

       Article VI, § 5A, of the Litchfield zoning regulations provides in relevant part: “An interior lot is defined as a lot that does not meet the requirement for minimum lot width. (See Article IV)
      “An interior lot may be permitted in any Residential Zone upon the granting of a Special Exception subject to the general standards of Article VUI, and subject to the following specific requirements:
      “5. Interior lots may be permitted in a subdivision only where the application meets the following criteria and requirements . . .

        “a. General: The applicant shall show that the design and layout of the subdivision with the proposed interior lots will be in keeping with the Town Plan of Development.
      “b. Specific: The applicant shall show that the subdivision with the proposed interior lots will preserve important natural resource features as identified on the Town Plan of Development maps and other studies adopted by the Commission, including, but not limited to streambelt lands, farmlands (especially active farmland), land on ridge lines, and will result in the preservation of the natural landscape along a Town road or the view from a Town road or proposed subdivision road. . . .”

       Karen A. Grimes, an abutting property owner, filed a motion to intervene as a defendant in this case and was granted intervenor status by the trial court. We refer to the zoning commission and Grimes collectively as the defendants.

       Article VI, § 5A (8), of the Litchfield zoning regulations provides in relevant part: “In any Residential Zone, as part of a subdivision, the Planning and Zoning Commission may approve two interior lots served by a single accessway provided:
      “a. That the accessway has a minimum 50 foot width at all points, and
      “b. The accessway is under joint ownership of the owners of the lots it serves, and
      “c. A deed provision to this effect is approved by the commission’s attorney, and
      “d. The application approval is conditional upon the use of said deed requirement . . . .”

        Article VI, § 5B (1) (b), of the Litchfield zoning regulations provides: “The number of lots permitted on a Common Driveway shall be more than two (2) but not more than a total of six (6) lots. There shall be no more than four (4) interior lots on a Common Driveway.”

       The terms “special exception” and “special permit” are synonymous and have been used interchangeably. See A.P. & W. Holding Corp. v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974); Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 520, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994).

       General Statutes § 8-3c (b) provides in relevant part: “The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception . . . .”

       The Litchfield zoning regulations at issue in the denial of the special exception included articles VI and VIII. For the text of article VI, § 5A, see footnote 1 of this opinion.
      Article VIII of the Litchfield zoning regulations concerning special exceptions provides in relevant part: “Uses specified in these regulations as Special Exceptions are declared to possess such special characteristics that each must be considered a special case. The following general procedures, requirements and standards apply to all such applications for a Special Exception and are to be considered in addition to any special requirements and standards for a Special Exception. . . .
      “4. In deciding upon a proposed Special Exception application, the Commission shall consider the following and record its findings in the meeting record. . . .
      “b. The existing and probable future character of the neighborhood in which the use is located.
      “c. The provision for creation of a harmonious relationship between proposed and existing buildings in the vicinity; specifically with regard to the visual relationship of said buildings in terms of their terrain, use, scale proportions and, particularly, the historic significance of the existing buildings. . . .”

       General Statutes § 8-8 (b) provides in relevant part: “Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which 1he municipality is located. . . .”

       We granted certification to appeal from the judgment of the Appellate Court limited to the following issues: “Under the circumstances of this case, did the Appellate Court properly (1) reverse the trial court’s judgment dismissing the plaintiffs zoning appeal, and (2) remand the case with direction to grant the plaintiffs application for subdivision approval and for a special exception?” Irwin v. Planning & Zoning Commission, 241 Conn. 925, 926, 696 A.2d 1265 (1997).
      Because of our determination of the first issue, it is unnecessary to address the second certified issue.


author: PER CURIAM. BERDON, J.,

text:
    ALPHONSO VALLE v. COMMISSIONER OF CORRECTION
    (SC 15773)
    Borden, Berdon, Katz, McDonald and Peters, Js.
    Argued February 17
    officially released May 12, 1998

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (respondent).

      Christopher C. Sheehan, assistant public defender, for the appellee (petitioner).
   Opinion

PER CURIAM.

The petitioner, Alphonso Valle, pleaded guilty in 1993 to the charges of burglary in the third degree in violation of General Statutes § 53a-103 and, subsequently, violation of probation in violation of General Statutes § 53a-32. On February 15, 1996, the petitioner filed a petition seeking a writ of habeas corpus concerning the date of his release from incarceration, which was granted on April 11, 1996. On May 28, 1996, the respondent, the commissioner of correction, filed his appeal from the habeas court’s judgment to the Appellate Court. On or around July 10, 1996, and prior to oral argument before the Appellate Court, however, the petitioner failed to return from a period of leave to the halfway house in Bridgeport where he was in the custody of the department of correction.

The Appellate Court affirmed the habeas court’s judgment. Valle v. Commissioner of Correction, 45 Conn. App. 566, 696 A.2d 1280 (1997). The respondent then filed a petition for certification from the Appellate Court’s judgment, which we granted.

The petitioner’s absence from legal custody without leave “ ‘disentitles [him] to call upon the resources of the Court for determination of his claims.’ ” Estelle v. Dorrough, 420 U.S. 534, 537, 95 S. Ct. 1173, 43 L. Ed. 2d 377 (1975), quoting Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970); State v. Leslie, 166 Conn. 393, 395, 349 A.2d 843 (1974); see State v. Patterson, 236 Conn. 561, 581, 674 A.2d 416 (1996).

Our unwillingness to decide the merits of the issue before us also finds support in the fact that the petitioner’s claim arose in the context of a prayer for relief by way of a writ of habeas corpus. “Habeas corpus provides a special and extraordinary legal remedy for illegal detention.” Reed v. Reincke, 155 Conn. 591, 594, 236 A.2d 909 (1967). The phrase “habeas corpus,” itself, means “you have the body.” Black’s Law Dictionary (6th Ed. 1990). Historically, the purpose of the writ has been to provide a vehicle for judicial inquiry into whether a petitioner’s imprisonment is illegal. See Vincenzo v. Warden, 26 Conn. App. 132, 136-37, 599 A.2d 31 (1991). Because the petitioner is no longer in the custody of the commissioner of correction, we properly may decline to inquire into the merits of his claim that, at some time in the past, he was being detained illegally.

We point out that, in view of these circumstances, we do not decide the issue presented in the petition for a writ of habeas corpus and express no view as to the propriety of the trial court’s or the Appellate Court’s reasoning.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the trial court with direction to dismiss the petition for a writ of habeas corpus.

BERDON, J.,

dissenting. I would affirm the well reasoned decisions of both the Appellate Court and the trial court, which held that the respondent, the commissioner of correction (hereinafter, the state), pursuant to General Statutes § lS^Sd, should have examined and credited the pretrial confinement time of the petitioner, Alphonso Valle, under each of his two convictions — for which he received two sentences to be served concurrently, notwithstanding the fact that he was sentenced on different dates for each conviction— and that the state then should have chosen, as the effective release date, the date on which the longer of the two sentences would be completed. Valle v. Commissioner of Correction, 45 Conn. App. 566, 570, 696 A.2d 1280 (1997).

The majority instead reverses the judgment of the Appellate Court and remands the case to that court with direction to remand the case to the trial court with direction to dismiss the petition for a writ of habeas corpus filed by the petitioner. The majority does so because, while the state’s appeal from the judgment of the habeas court in favor of the petitioner was pending, the petitioner failed to return from leave from a halfway house while he was in the custody of the state. The state nonetheless urges this court to reach the merits of its appeal because of the vital interest to the state in determining the calculation of credits for prison sentences of more than 2000 other prisoners.

1 recognize that dismissal is an appropriate sanction when a prisoner is a fugitive during the ongoing appellate process. Estelle v. Dorrough, 420 U.S. 534, 537, 95 S. Ct. 1173, 43 L. Ed. 2d 377 (1975) (“[disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law”). But this disentitlement doctrine is not a hard and fast rule, and should be applied only when the reasons underlying the doctrine are well served. The following reasons have been given in support of the doctrine: (1) “the judgment on review may be impossible to enforce” because the prisoner has escaped, (2) the prisoner’s “escape disentitles him to call upon the resources of the Court for determination of his claims,” (3) dismissal will “[discourage] the felony of escape and [encourage] voluntary surrenders,” and (4) dismissal will “[promote] the efficient, dignified operation of the courts.” (Internal quotation marks omitted.) Degen v. United States, 517 U.S. 820, 824, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (1996).

The first reason, that our judgment may be impossible to enforce, may well be applicable to the petitioner’s case, but our decision would establish a rule of law that has significance and application to 2000 other prisoners. The second reason is not applicable to the present case because it is the state that appealed from the judgment of the habeas court and then to this court. Although the dismissal may discourage escape from confinement, this third reason pales in light of the fact that the issue raised in this case has great significance to the state. Finally, dismissing the petition for a writ of habeas corpus does not “[promote] the efficient, dignified operation of the courts.” Id. In fact, the dismissal results in the waste of resources expended by the judiciary, the attorney general and the public defender to appeal this case on an issue everyone agrees must be resolved, not necessarily for the petitioner in this case, but for the state and the 2000 other prisoners that may be affected.

In the recent case of State v. Patterson, 236 Conn. 561, 674 A.2d 416 (1996), in which the appellant defendant had fled the jurisdiction while the state’s petition for certification to appeal was pending before this court, we reviewed the Appellate Court’s judgment on appeal by the state that a criminal defendant had a constitutional right to a presentence investigation report. State v. Patterson, 37 Conn. App. 801, 820, 658 A.2d 121 (1995). In Patterson, we allowed the defendant’s counsel to withdraw because the defendant had escaped, we granted the Connecticut Criminal Defense Lawyer Association’s permission to appear as amicus, and we then decided the issue “because of the substantial public interest at stake . . . .” State v. Patterson, supra, 236 Conn. 566. In the present case, the petitioner had sought review of an issue in the habeas court that is equally as important as the claim raised by the fugitive appellant in Patterson. Moreover, in this case it is the state’s appeal and in urging this court to decide it, notwithstanding the absence of the petitioner, the state expressed at oral argument that there was a substantial public interest in resolving the issue of how to calculate good time and jail credits.

Indeed, because the state presently calculates those credits in a manner adversely to prisoners, contrary to that directed by the trial court and the Appellate Court in this case, prisoners who would have been released, had we affirmed those courts, are being held wrongfully. Common decency and concern for the liberty rights of those prisoners requires that we do what we did for the state in Patterson — decide the issue. Therefore, I conclude, as the United States Supreme Court did in Ortega-Rodriguez v. United States, 507 U.S. 234, 244, 113 S. Ct. 1199, 122 L. Ed. 2d 581 (1993), that, under the circumstances of this case, the application of this disentitlement doctrine does not “represent [a] reasoned [exercise] of [this] court’s authority.”

Accordingly, I dissent.

      We granted the respondent’s petition for certification limited to the following issue: “Did the Appellate Court properly conclude that a prisoner serving multiple concurrent sentences imposed by different courts on different dates is entitled to have presentence confinement credit applied to each of these sentences when that credit represents the same period of presentence confinement?” Valle v. Commissioner of Correction, 243 Conn. 909, 701 A.2d 338 (1997).

       General Statutes § 18-98d provides: “(a) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1,1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presen-tence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of ten dollars.
      “(b) In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction of any portion of a fine not remitted or sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against him may not be counted more than once in computing a good conduct reduction under this subsection.
      “(c) The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person’s sentence; provided in no event shall credit be allowed under subsection (a) in excess of the sentence actually imposed.”

       At oral argument before this court, the state represented in good faith that the best estimate was at least 2000 other prisoners’ sentences could be affected by the merits of this appeal.

       In the present case, the public defender, who did not seek permission to withdraw as the petitioner’s appellate counsel, urges that we decide the issue, as the Appellate Court did, notwithstanding the fact that the petitioner was also absent during that appeal.