author: Santaniello, J.

text:
    State of Connecticut v. Gary L. Hanson
    (13264)
    Healey, Shea, Callahan, Hull and Santaniello, Js.
    Argued October 14, 1988
    decision released March 28, 1989

      Vincent J. Giedraitis, public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was Donald Caldwell, state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant was found guilty of the crime of arson in the first degree in violation of General Statutes § SSa-lll. Upon conviction, he was sentenced to a definite term in prison and transferred to the Whiting Forensic Institute, the trial court having found that the defendant was mentally ill and dangerous to himself and others. After commitment and confinement from January 9, 1985, to January 7,1986, the defendant was presented in court, in accordance with General Statutes § 17-251 (b), to determine whether he was eligible for discharge from Whiting and to determine his disposition if discharged. As a consequence, he was returned to the custody of the commissioner of correction to serve the balance of his sentence.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court, Kelly, J., erred in determining that it had no discretion to release the defendant from incarceration pursuant to § 17-251. The Appellate Court concluded, however, that the trial court had no discretion to release the defendant because he was not otherwise eligible for release under the penal code. State v. Hanson, 12 Conn. App. 32, 45, 529 A.2d 720 (1987). This court granted the defendant’s petition for certification to determine whether the Appellate Court erred in affirming the judgment of the trial court. We reverse the decision of the Appellate Court and remand the case with direction.

Although the facts that the trial court could reasonably have found are set forth in State v. Hanson, supra, we summarize those facts pertinent to the issues in this appeal. The defendant was charged with two counts of attempted murder in violation of General Statutes §§ 53a-54a and 53a-49 and one count of arson in the first degree in violation of General Statutes § 53a-lll. He was tried to the court, Hale, J., and acquitted of the two counts of attempted murder, but found guilty of the count of arson in the first degree. During the course of the trial, the court heard psychiatric testimony from two physicians regarding the defendant’s mental state. On January 9,1985, after considering a report from the Whiting Forensic Institute, the testimony presented and the arguments of both counsel, the trial court sentenced the defendant to the custody of the commissioner of correction for a term of fifteen years. Because the court also found that Hanson was dangerous to himself and to others, it ordered him confined to the Whiting Forensic Institute for custody, care and treatment in accordance with General Statutes § 17-245. The court stated: “If the Director should find that the defendant is sufficiently improved to be discharged from the institute, it is the strong recommendation to the Court hearing the matter under [General Statutes § 17-251] that the defendant serve at least a portion of this sentence.”

On January 7,1986, the defendant appeared before the trial court, pursuant to General Statutes § 17-251 and asked the court to enter an order transferring him to another institution, such as Connecticut Valley Hospital, or in the alternative to heed Judge Hale’s recommendation at sentencing and require him to serve some lesser portion of his fifteen year sentence. Judge Kelly, however, discharged the defendant from Whiting and transferred him to the commissioner of correction to serve the remainder of his fifteen year sentence, stating that he could not resentence the defendant because “[h]e has already been sentenced.” The defendant appealed to the Appellate Court claiming that the trial court erred in finding that it lacked the authority to release the defendant before he was eligible for release under his original fifteen year sentence. The Appellate Court sustained the trial court ruling and concluded that the trial court had no discretion to release the defendant because he was not otherwise eligible for release under the penal code. State v. Hanson, supra, 45.

The sole issue raised on appeal is whether the Appellate Court erred in concluding that in a proceeding pursuant to § 17-251, the court may not modify the sentence previously imposed if modification is otherwise prohibited under the penal code.

Under § 17-251 (b), a hearing is held to determine whether a defendant who is confined to Whiting for psychiatric care under General Statutes §§ 17-244 and 17-245 should be discharged from the institute. If the court determines that the patient should be discharged, it must then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction. The Appellate Court concluded that the word “release” in § 17-251 (b) was to be read in conjunction with its use in the penal code, and therefore “to vest the court with discretion, upon its determination that the defendant should be discharged from the institute, to modify the original sentence of the defendant if he would otherwise be eligible for release under the penal code.” State v. Hanson, supra, 45. The Appellate Court upheld the denial of relief to the defendant under § 17-251 (b) by concluding that the defendant was ineligible for release under the penal code for two reasons. We find error in both reasons offered by the Appellate Court and disagree in its reading of the word “release” in § 17-251 (b).

The first ground relied upon by the Appellate Court was that the defendant’s conviction of a class A felony made him ineligible for conditional or unconditional release under General Statutes §§ 53a-28 and 53a-29. The Appellate Court did not consider the possibility of a suspended sentence and probation, apparently assuming that such a sentence would be contrary to General Statutes §§ 53a-35a and 53a-29 (a). This court, however, in State v. O’Neill, 200 Conn. 268, 511 A.2d 321 (1986), held that a sentencing court has discretion to enter a suspended sentence for a first degree arson conviction. In O’Neill, we found that the trial court’s failure to exercise its discretion to consider any suspension of a sentence for first degree arson was a violation of the defendant’s equal protection rights. Because the defendant was convicted for first degree arson, he could have received a suspended sentence. Therefore, the Appellate Court erred in concluding that General Statutes §§ 53a-28 and 53a-29 prohibited the defendant’s release under § 17-251 (b).

The second ground relied upon by the Appellate Court was that General Statutes § 53a-39 prohibits the early release of a defendant who has been sentenced to a definite term exceeding three years. Noting that the defendant had been convicted and sentenced under the penal code to a definite sentence of fifteen years, the Appellate Court concluded that the defendant was therefore ineligible for discharge or intensive probation under § 53a-39. While the Appellate Court accepted that the court could grant parole to an eligible defendant, or order him to be returned to the custody of the commissioner of correction pursuant to § 17-251 (b), it concluded that the word “release” in the statute must be construed in accordance with the statutes regarding sentencing and punishment, for “[t]o hold otherwise would lead to the bizarre and irrational result that persons who are criminally responsible for their actions, who have been convicted and sentenced and who would not be otherwise eligible for discharge from the custody of the commissioner of correction, might serve only six months in a psychiatric institute, and then upon reexamination and a hearing, be released from any further confinement.” State v. Hanson, supra, 46. The Appellate Court concluded, therefore, that § 53a-39 served to limit the discretion of the trial court to order release under § 17-251 (b).

We find our decision in Murray v. Lopes, 205 Conn. 27, 529 A.2d 1302 (1987), dispositive on the issue of the correct interpretation of the word “release” in § 17-251 (b). While Murray v. Lopes dealt with the application of statutory sentence reduction credit to individuals sentenced and confined at Whiting for custody, care and treatment pursuant to General Statutes § 17-245 (c), we noted that “the benefit of early release under § 17-251 is in addition to, not in lieu of, the statutory sentence reduction credit that automatically accrues to all prisoners,” and “the fact that there are two different statutory release systems does not compel the conclusion that they are inconsistent or conflict with each other.” (Emphasis added.) Murray v. Lopes, supra, 35-36. The possibility of release through sentence modification under § 53a-39 is distinct from the possibility of release under § 17-251 (b). Although both statutes operate similarly by giving the court discretion to order release, they are different mechanisms for release.

The word “release” as used in § 17-251 (b) is clear and unambiguous. To find support for the Appellate Court’s position, this court would have to ignore its previous decisions that have held that if the language of a statute is clear and unambiguous, courts cannot, by construction, read into statutes provisions that are not clearly stated. See State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); Johnson v. Manson, 196 Conn. 309, 314, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981).

We acknowledge the Appellate Court’s concern that reading “release” under § 17-251 (b) independent of the penal code could result in the release of a defendant convicted and sentenced under the penal code from any further confinement after six months at Whiting. If, for instance, an individual were convicted and sentenced to a nonsuspendible sentence of ten years in the Connecticut correctional institution at Somers, that individual would not be eligible for sentence reduction and would serve the full ten year term. If that same individual had been found to be in need of custody, care and treatment under General Statutes §§ 17-244 and 17-245, early release from his previously imposed sentence of ten years would be possible upon his discharge from Whiting pursuant to § 17-251 (b). Furthermore, an individual found to be in need of observation and treatment in a mental hospital following sentencing and transferred to such a facility pursuant to General Statutes §§ 17-194d or 17-194e must be returned to the custody of the commissioner of correction to complete his sentence upon recovery and discharge from the mental hospital. General Statutes § 17-194f.

Although we might disfavor the inconsistent results outlined above, “[i]t is not the function of this court to alter the will of the legislature merely because the results are unfair.” McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984). “Where statutory language is clearly expressed . . . courts must apply the legislative enactment according to the plain terms and ‘cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.’ ” Johnson v. Manson, supra, 315. “ ‘It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature.’ ” State v. Perrucio, 192 Conn. 154, 163 n.4, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), quoting Duart v. Axton-Cross Co., 19 Conn. Sup. 188, 190, 110 A.2d 647 (1954).

We go no further than to point out that revision and clarification of General Statutes § 17-251 by the legislature is necessary. As it stands, the statute appears to authorize the director of Whiting and the trial court to grant “parole” to a patient sentenced and committed by the court. If that option was ever truly available to the director or the trial court under the statutes relating to parole, it is no longer a viable option with the advent of definite sentencing in Connecticut in 1980. As has already been pointed out, that portion of § 17-251 (b) that authorizes the trial court to release a sentenced patient upon discharge from Whiting produces questionable results.

Cognizant of our responsibility to afford the defendant his right to equal protection, we believe a remand to the original sentencing court is in order with the direction that it resentence the defendant with the knowledge that a suspended sentence is now available, though not mandatory, for first degree arson. As we stated earlier, State v. O’Neill, supra, held that the trial court erred in refusing to exercise its discretion to consider any suspension of the defendant’s sentence for first degree arson. Because our decision in O’Neill followed the defendant’s sentencing in the present case, the trial court was unaware that it had discretion to give the defendant a suspended sentence.

There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction that it be returned to the original sentencing court for resentencing in accordance with this opinion.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-lll. arson in the first degree: class a FELONY, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.
      “(b) Arson in the first degree is a class A felony.”

       “[General Statutes] Sec. 17-251. review of cases after periodic examinations, disposition of cases: further treatment, transfer, leave of absence, parole, (a) As soon as is practicable the director shall act upon the examination reports of his staff. Upon review of each report and upon consideration of what is for the benefit of the patient and for the benefit of society, the director shall determine that such patient: (1) Remain in the institute for further treatment or be transferred to some other facility under the control of the commissioner or (2), if such patient is under commitment, be granted a leave of absence or extended visit or (3), if such patient is under sentence and is eligible for parole, be granted a parole; or (4) has sufficiently improved to warrant his discharge from the institute provided if such person was sentenced and confined in the institute under section 17-245, he shall not be released except upon order of the court by which he was confined under said section, after notice to said court by the director.

        “(b) The court, upon its own motion or at the request of the defendant or his attorney, may at any time hold a hearing to determine whether such person should be discharged from the institute prior to the expiration of the maximum period of his sentence. Prior to such hearing, the institute shall file a report with the court concerning the patient’s mental condition. The court may appoint a physician specializing in psychiatry to examine the patient and report to the court. Such hearing shall be held at least once every five years. If the court determines the patient should be discharged from the institute, it shall then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction.”

       “[General Statutes] Sec. 17-245. disposition of defendant after REPORT. . . .
      “(c) If at such hearing the court finds the defendant is not in need of custody, care and treatment at the institute, it shall sentence him in accordance with the conviction or place him on probation. If the court finds that such person is in need of outpatient psychiatric treatment, it may place him on probation on condition that he receive such treatment. If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.”

       General Statutes§ 17-244 provides in part: “certain convicted persons TO BE EXAMINED. REPORT AND RECOMMENDATION, (a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel or the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. ...”

       “[General Statutes] See. 53a-28. authorized sentences, (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
      “(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73 or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge.
      “(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction.”

       General Statutes § 53a-29 provides in part: “probation and conditional discharge: criteria; periods, (a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of the guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.
      “(b) The court may impose a sentence of conditional discharge for an offense, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; and (2) probation supervision is not appropriate. . . .”

       “[General Statutes] Sec. 53a-35a. imprisonment for ANY felony COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS AUTHORIZED. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a; (2) for class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years; (5) for a class C felony, a term not less than one year nor more than ten years, except that for a conviction under section 53a-56a, the term shall be not less than three years nor more than ten years; (6) for a class D felony, a term not less than one year nor more than five years, except that for a conviction under section 53a-60b, the term shall be not less than two years nor more than five years, and for a conviction under section 53a-60c, the term shall be not less than three years nor more than five years; (7) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime.”

       Having ruled, in State v. Dupree, 196 Conn. 655, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985), that a sentencing court has authority to suspend a portion of a sentence for arson murder in violation of General Statutes § 53a-54d this court, in State v. O’Neill, 200 Conn. 268, 511 A.2d 321 (1986), found that the trial court’s failure to exercise discretion to consider a suspended sentence for first degree arson constituted a violation of the defendant’s right to equal protection under our federal and state constitutions because it resulted in a harsher penalty for a defendant who acted with less culpable intent and who caused a less serious result.

       General Statutes § 53a-39 provides in part: “reduction of definite SENTENCE OF THREE YEARS OR LESS. DISCHARGE OF DEFENDANT. INTENSIVE probation. At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. At any time during the period of a definite sentence of at least two years but not more than five years, the sentencing court or judge shall refer any application of a defendant seeking placement in the intensive probation program to the office of adult probation for assessment and recommendations and may, after hearing and for good cause shown, order the defendant discharged on intensive probation in accordance with subsection (b) of section 54-105 for a period of at least one year but not more than the unexpired portion of the sentence. . . .”

       “[General Statutes] Sec. 17-194Í. discharge from hospital of inmates of correctional institutions. The provisions of section 17-192 shall apply to any person committed to such hospital pursuant to sections 17-194d and 17-194e, except that upon such discharge (1) the person shall be returned to any such institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated and (2) the commissioner of correction shall notify the prosecuting official of any court in which any such person has criminal charges pending against him.”

       “[General Statutes] Sec. 54-125. PAROLE. Any person confined for an indeterminate sentence, after having been in confinement under such sentence for not less than the minimum term, or, if sentenced for life, after having been in confinement under such sentence for not less than the minimum term imposed by the court, less such time as may have been earned under the provisions of section 18-7, may be allowed to go at large on parole in the discretion of the panel of the board of parole for the institution in which the person is confined, if (1) it appears from all available information, including such reports from the commissioner of correction as such panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law and (2) such release is not incompatible with the welfare of society. Such parolee shall be allowed in the discretion of such panel to return to his home or to reside in a residential community center, or to go elsewhere, upon such terms and conditions, including personal reports from such paroled person, as such panel prescribes, and to remain, while on parole, in the legal custody and control of the board until the expiration of the maximum term or terms for which he was sentenced. Any parolee released on condition that he reside in a residential community center may be required to contribute to the cost incidental to such residence. Each order of parole shall fix the limits of the parolee’s residence, which may be changed in the discretion of such panel. Within one week after the commitment of each person sentenced for more than one year during any criminal term of the superior court, the state’s attorney of each county and judicial district shall send to the board of parole the record, if any, of such person. In the case of an inmate serving a sentence at the John R. Manson Youth Institution, Cheshire, or at the Connecticut Correctional Institution, Niantic, the board of parole shall establish, by rule, the date upon which said board shall notify the inmate that his eligibility for parole will be considered. At any time prior thereto the commissioner of correction may recommend that parole be granted and, under special and unusual circumstances, the commissioner may recommend that an inmate be discharged from the institution.”

       Public Acts 1980, No. 80-442, §§ 9 and 10 provide: “Sec. 9. Subsection (a) of section 53a-35 of the general statutes is repealed and the following is substituted in lieu thereof:
      “(a) [A] FOR ANY FELONY COMMITTED PRIOR TO JULY 1,1981, THE sentence of imprisonment [for a felony] shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d).
      “Sec. 10. (NEW) For any felony committed on or after July 1,1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court . . . .”

       The defendant was sentenced on January 9, 1985, and our decision in State v. O’Neill, 200 Conn. 268, 511 A.2d 321 (1986), was released on June 24, 1986.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Board of Education of the Town of Avon et al. v. Connecticut State Employees Retirement Commission
    (13466)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.

      Argued December 15, 1988
    decision released March 28, 1989

      LisaB. Bingham, with whom was LynnM. Daggett, for the appellants (plaintiffs).

      Arnold B. Feigin, assistant attorney general, with whom were Barney Lapp, assistant attorney general, and, on the brief, Joseph I. Lieberman, former attorney general, for the appellee (defendant).
   Hull, J.

The plaintiffs, the boards of education of the towns of Avon, Cromwell and Madison, filed a petition with the defendant Connecticut state employees retirement commission (commission) requesting that the commission issue a declaratory ruling on whether the wages paid by the respective boards of education to their teachers for services rendered in connection with school-related extra duty and coaching assignments are subject to the social security tax under General Statutes §§ 7-452 through 7-459. The commission determined that such wages are subject to the social security tax. The plaintiffs appealed to the Superior Court, which affirmed the commission’s ruling. The plaintiffs then appealed to the Appellate Court and we transferred the case to ourselves pursuant to Practice Book § 4023. We find no error.

A proper understanding of the issues presented in this case requires that we first discuss briefly the statutory framework of the social security system as it pertains to the claims of the parties. While participation in the social security system is mandatory for most employees in the private sector, employees of state and local governments can be brought into the system only by means of a voluntary agreement entered into by the states with the federal government. 42 U.S.C. § 418 (a) (l); 20 C.F.R. § 404.1201 (a). The state of Connecticut entered into such an agreement on January 24, 1952. The agreement provides that the social security system is extended to include the employees of the Connecticut municipalities listed in the appendix to the agreement. The towns of Avon, Cromwell and Madison, within which the plaintiff boards of education are respectively located, are listed in this appendix.

In Connecticut, before a municipality may be brought into the social security system under the federal-state agreement, the municipality must, by vote of its legislative body and with the approval of the commission, apply for membership in the system. General Statutes § 7-453. Upon acceptance of a municipality into the system, the municipality and the commission enter into an agreement specifying the terms and conditions of the municipality’s participation in the system. General Statutes §§ 7-453, 7-457. Municipalities and their employees participating in the social security system are taxed in a manner virtually identical to that of private sector employers and employees: “A municipality shall deduct an amount from the wages of its employees whose services are covered under the system by federal-state agreement and shall contribute an equal amount for each employee on its own behalf so that the sum of these amounts shall be equivalent to the taxes which would be imposed by the Federal Insurance Contributions Act . . . .” General Statutes § 7-453.

The extension of the social security system to a participating municipality’s employees, however, is not all-inclusive. Connecticut law provides that certain state and municipal positions that are already covered by local and state retirement systems shall be excluded from social security coverage. General Statutes § 7-454. Since retirement benefits for teachers in Connecticut are provided by the Connecticut Teachers’ Retirement System; General Statutes § 10-183b et seq.; teaching positions are among those municipal positions excluded from social security coverage and taxation under General Statutes § 7-454. Specifically, § 7-454 (2) provides an exemption for “individuals in positions covered under the Connecticut state teachers’ retirement [system].”

Having laid the preliminary statutory groundwork for review of this appeal, we now look to the factual and procedural history of this case. The source of the controversy between the parties can be traced to Public Acts 1971, No. 185. That act revised General Statutes § 10-160 (now § 10-183b [3]), which defines a teacher’s “annual salary” for purposes of the teachers’ retirement system. Specifically, Public Acts 1971, No. 185 excluded from the definition of “annual salary” any sums paid to a teacher “for any extra duty assignments, coaching, unused sick leave, unused vacation or terminal pay.” Compensation for these items previously had been treated as part of a teacher’s annual salary and was therefore considered to be excluded from social security taxation under the exemption for teachers contained in General Statutes § 7-454 (2). Because Public Acts 1971, No. 185 directed that extra duty and coaching assignments should no longer be considered part of a teacher’s annual salary for purposes of the teachers’ retirement system, however, a question arose as to whether the earnings received by teachers in connection with such assignments were still exempt from social security taxation under § 7-454 (2). The commission made known its position on this matter through a November 19,1971 letter, sent to all participating municipalities, stating that due to the statutory change in the law, “services in the position of coach are covered [by social security] and wages should be reported.”

Apparently, the commission’s recommendation went unheeded by the plaintiffs since, as a result of an audit conducted in 1984, the commission found that the plaintiffs owed back social security taxes for wages paid to their teachers for extra duty and coaching assignments. The plaintiffs disputed the commission’s finding and petitioned the commission for a declaratory ruling on the issue of whether such wages were subject to the social security tax under General Statutes §§ 7-452 through 7-459.

Prior to issuing its ruling, the commission conducted a formal hearing on the matter. General Statutes § 4-177 et seq. At the hearing, the plaintiffs contended that the wages paid to their teachers for services performed in connection with extra duty and coaching positions were not subject to social security taxation on any one of three grounds. The plaintiffs claimed that: (1) they were excluded from the social security system under General Statutes § 7-452 (l) because they were independent “municipalities” that had never separately agreed to participate in the system; (2) the compensation paid for extra duty and coaching assignments fell within the statutory exemption for teacher salaries contained in § 7-454 (2); and (3) the commission’s letter informing them of their taxability was invalid because of the absence of a properly promulgated regulation pursuant to the Uniform Administrative Procedure Act. General Statutes § 4-166 et seq. The commission, however, was not persuaded by the plaintiffs’ arguments and ruled that the wages in question were subject to the social security tax under General Statutes §§ 7-452 through 7-459.

Having exhausted their administrative remedies, the plaintiffs appealed to the Superior Court; General Statutes § 4-183; where they presented the same claims to the trial court. The trial court rejected each of the plaintiffs’ claims and upheld the ruling of the commission.

The plaintiffs’ appeal to this court assigns error to the trial court’s rejection of their claims. Before addressing the merits of the plaintiffs’ claims, however, we must first consider the applicable standard of review. “The standard of judicial review of administrative agency rulings is well established. Section 4-183 (g) permits modification or reversal of an agency’s decision ‘if substantial rights of the appellant 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.’ The trial 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. . . . Rather, an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” (Citations omitted.) State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988). It is for the courts, however, to expound and apply governing principles of law. Id.; see also United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724 (1988); Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979).

This case presents questions of law turning upon the interpretation of statutes. Specifically, the dispute between the parties centers around the interpretations to be given General Statutes § 7-452 (1), which defines a “municipality” for purposes of participation in the social security system, and General Statutes § 7-454 (2), which provides a qualified exemption from social security coverage and taxation for teachers. Such questions of statutory interpretation invoke “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.” State Medical Society v. Board of Examiners in Podiatry, supra, 718. “Ordinarily ‘the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.’ ” Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987), quoting Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987).

I

The plaintiffs claim initially that the trial court erred in failing to conclude that they are each an independent “municipality” within the meaning of General Statutes § 7-452 (1) and therefore not subject to the social security tax since they, as “municipalities,” never agreed to participate in the social security system pursuant to General Statutes §§ 7-453 and 7-457. The plaintiffs concede, as they must, that their argument hinges on whether they fall within the definition of “municipality” contained in § 7-452 (1). That section provides, for purposes of participation in the social security system, that a “municipality” shall include the following: “[A]ny town, consolidated town and city, consolidated town and borough, borough, fire district, school district, district department of health, regional planning agency, probate district, housing authority, flood commission ... or an instrumentality of any of these, if such instrumentality is a distinct juristic entity legally separate from any of the above and its employees are not, through this relation, employees of one of the above.” In its declaratory ruling, the commission rejected the plaintiffs’ argument, stating that they did not fall within the definition of “municipality” under § 7-452 (1) and, consequently, that no separate agreement between the state and the plaintiffs was required to include them, and their employees, within the social security system. We agree with the commission.

Boards of education, such as the plaintiffs, are conspicuously absent from the language of § 7-452 (1). In view of this statutory omission, the plaintiffs’ bald assertion that the “plain meaning” of the statute includes them within its definition is utterly without merit. “[I]n the absence of ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated . . . Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984).

Alternatively, the plaintiffs argue that they qualify as municipalities under § 7-452 (1) because a board of education is the equivalent of a “school district,” which is included in the definitional language of the statute. The plaintiffs cite General Statutes § 10-240 in support of their contention that the legislature intended to equate boards of education with school districts. Section 10-240 provides: “Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts . . . .” Clearly, § 10-240 provides that “[ejach tovm . . . shall be a school district,” (emphasis added) and that each town’s board of education is merely the instrumentality through which the town “maintain[s] the control of all the public schools within its limits.” The plain language of the statute provides that each town, not each board of education, is a school district for the purposes recited therein. We will not torture the words or sentence structure of a statute to import an ambiguity where the ordinary meaning of the language leaves no room for it. Mingachos v. CBS, Inc., 196 Conn. 91, 98, 491 A.2d 368 (1985). Thus, we conclude that a board of education is not a school district, and, accordingly, the plaintiffs do not fall within the definition of “municipality” set forth in § 7-452 (l).

In a related claim, the plaintiffs assert that “a school board’s employees are employees of the school board and not employees of the town.” (Emphasis in original.) The plaintiffs’ argument on this point is largely unarticulated. It appears, however, to be directed toward the fact that each town’s social security agreement with the state provides social security coverage for municipal employees only. Thus, if the teachers working under the plaintiffs are deemed to be the plaintiffs’ employees exclusively, and not employees of the towns they serve, then the teachers would not be covered under the towns’ agreements to participate in the social security system and, hence, their wages, including those received for extra duty and coaching assignments, would not be subject to social security taxation. Clearly, such an argument holds true only if the teachers are considered not to be town employees. The plaintiffs, however, cite no persuasive authority in support of the proposition that public school teachers are not town employees. Their reliance on Sansone v. Bechtel, 180 Conn. 96, 429 A.2d 820 (1980), is misplaced. In that case, a public school student sued his music teacher for the infliction of allegedly excessive corporal punishment when the student misbehaved in class. The sole issue in that case was whether the teacher was a “state employee” for purposes of General Statutes § 4-165, which grants state officers and employees immunity from personal liability. In holding that the music teacher did not have immunity under the statute, we stated that “teachers as employees of a town board of education are also not employed in the state government.” Id., 100. In Sansone we did not, however, rule on the question pertinent to this case, i.e., whether teachers employed by a town board of education are also employees of the towns they serve.

With regard to that question, the commission in its brief directs this court’s attention to the case of Cheshire v. McKenney, 182 Conn. 253, 438 A.2d 88 (1980), which we find dispositive. In that case, the plaintiffs, the town of Cheshire and certain of its residents, sought to test the defendant’s right to hold the position of councilman-at-large while also holding a teaching position in the town’s public school system. The plaintiffs claimed that the defendant was not legally entitled to maintain a position on the council because of a town charter provision prohibiting council members from holding another town job. The question presented was whether the defendant, in his capacity as a public school teacher, was an employee of the town of Cheshire. We stated: “[W]e have expressly held that members of a local board of education are officers of the town they serve and that the persons employed by them in the performance of their statutory functions are employees of the town. Mase v. Meriden, 164 Conn. 65, 67, 316 A.2d 754 (1972); Wallingford v. Board of Education, [152 Conn. 568, 573, 210 A.2d 446 (1965)] .... Although both Mase and Wallingford involved nonprofessional employees, there is nothing in the language or the reasoning of those cases that suggests that professional persons in a school system should not also be considered employees of the town. . . . These considerations lead us to the conclusion that local boards of education act on behalf of the municipality they serve as well as in fulfillment of their state mandates and that their professional and nonprofessional employees are employees of the municipality and are subject to valid provisions of the municipal charter.” (Emphasis added; citations omitted.) Cheshire v. McKenney, supra, 259-60.

Accordingly, we conclude that the teachers employed by the plaintiffs are also employees of the towns they serve and are thus covered under the towns’ agreements to participate in the social security system.

II

The plaintiffs next claim that the payments made to their teachers for extra duty and coaching assignments are exempt from social security taxation under General Statutes § 7-454 (2), which provides an exclusion from social security coverage for the “services of individuals in positions covered under the Connecticut state teachers’ retirement [system].” The plaintiffs argue vigorously that extra duty and coaching assignments are inherently part of the job of a teacher, and that these assignments and the earnings received therefrom thus fall within the § 7-454 (2) exemption. In its declaratory ruling, however, the commission determined that extra duty and coaching assignments are “separate positions], apart from the teacher position,” and that the § 7-454 (2) exemption therefore did not apply to earnings received in connection with those assignments.

We begin our analysis by noting that the § 7-454 (2) exemption extends only so far as those “positions covered” by the Connecticut Teachers’ Retirement System, General Statutes § 10-183b et seq. Consequently, we look to that act to determine more precisely what “positions” it covers. In this respect, we find that General Statutes § 10-183b (3) is of controlling significance. That section defines a teacher’s “annual salary,” for purposes of the teachers’ retirement system, as “the annual salary rate for service as a Connecticut teacher during a school year but not including unused sick leave, unused vacation, terminal pay, coaching or extra duty assignments . ” (Emphasis added.) This definition is of pivotal importance because mandatory deductions for funding of the teachers’ retirement system may only be taken from a teacher’s “annual salary.” General Statutes § 10-183n. Therefore, earnings from those items not included within the definition of “annual salary,” such as extra duty and coaching assignments, are not subject to mandatory deductions for funding of the retirement system.

Despite this statutory definition, the plaintiffs would have us exempt these earnings from social security taxation as well, under § 7-454 (2), thereby permitting such earnings to pass to the teachers completely free of any retirement tax at all. We find no intent on the part of the legislature to create such an anomalous situation, where a portion of a teacher’s earnings would be subject neither to the social security tax nor to deductions for the teachers’ retirement system. “[I]f there are two possible interpretations of a statute and one alternative proves unreasonable or produces the possibility of bizarre results, then the more reasonable alternative should be adopted.” State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).

A more reasonable construction of the social security exemption contained in § 7-454 (2), and one which avoids the “bizarre result” of totally tax-free earnings, is to tailor the exemption to include only those earnings that fall within a teacher’s “annual salary” as defined by § 10-183b (3). By making the § 7-454 (2) exemption coextensive with the § 10-183b (3) definition of “annual salary,” the problem of a tax-free earnings loophole for teachers involved in extra duty and coaching activities is eliminated without diminishing the exemption’s intended scope and effect.

Accordingly, in view of the fact that compensation for extra duty and coaching assignments is expressly excluded from the definition of “annual salary” contained in § 10-183b (3), we conclude that the payments made by the plaintiffs to their teachers in connection with such services are not exempted from social security taxation under § 7-454 (2). Such earnings are, therefore, subject to the social security tax pursuant to General Statutes §§ 7-452 through 7-459.

Ill

Finally, the plaintiffs claim that the commission’s November 19, 1971 letter apprising participating municipalities of the passage of Public Acts 1971, No. 185, and its effect on coaching payments to teachers, constituted an invalid “regulation” in that it was not promulgated in accordance with the provisions of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Consequently, the plaintiffs contend that this relieves them of any obligation to comply with the contents of the letter as it pertains to the payment of social security taxes. The commission, on the other hand, maintains that the letter cannot be considered a “regulation” within the meaning of the UAPA and therefore compliance with the rulemaking provisions of that act was unnecessary.

We need not address the issues of whether the commission’s letter constituted an attempt at rulemaking and, if so, whether the commission complied with the applicable rulemaking provisions of the UAPA, since the letter was drafted before the UAPA became effective in Connecticut. The letter was sent to the plaintiffs on or about November 19, 1971; the UAPA, however, did not become effective in Connecticut until January 1,1972. See Public Acts 1971, No. 854, § 21. Therefore, the letter was not subject to the provisions of the UAPA and any alleged noncompliance on the part of the commission with regard to that act’s procedural requirements for rulemaking is immaterial.

There is no error.

In this opinion the other justices concurred.

       Title 42 of the United States Code, § 418 (a) (1) provides: “voluntary AGREEMENTS FOR COVERAGE OF STATE AND LOCAL EMPLOYEES (a) PURPOSE OF AGREEMENT (1) The Secretary shall, at the request of any State, enter into an agreement with such State for the purpose of extending the insurance system established by this title to services performed by individuals as employees of such State or any political subdivision thereof. Each such agreement shall contain such provisions, not inconsistent with the provisions of this section, as the State may request.”

       The commission is the appointed agent of the state of Connecticut in all matters relating to the social security system and the municipalities entering it. General Statutes §§ 5-155a (d) and 7-453. The commission is also charged by statute with the administration of the state employees retirement system; General Statutes § 5-155a (a); and the municipal employees retirement system. General Stautes § 5-155a (c).

       “[General Statutes] Sec. 7-453. membership in system, contributions. Any municipality of the state may, by vote of its legislative body and with the approval of the commission, apply for membership in the system or provide coverage for employees in any of the services which it may-have elected to exclude under section 7-454. The commission is appointed agent for the state and is authorized to act in such capacity in all matters relating to the system and to the municipalities entering it. All agreements to be entered into between the state and the Secretary and between the state and the municipality shall be subject to the examination and approval of the attorney general before being consummated. The commission is authorized to make regulations governing the procedure to be followed by municipalities in entering and maintaining membership in the system. A municipality shall deduct an amount from the wages of its employees whose services are covered under the system by federal-state agreement and shall contribute an equal amount for each employee on its own behalf so that the sum of these amounts shall be equivalent to the taxes which would be imposed by the Federal Insurance Contributions Act if the services of employees covered by the agreement constituted employment as defined in that act. The commission, upon receipt of such contributions, shall, in accordance with applicable regulations, verify them for correctness and endorsement and deliver them to the Secretary of the Treasury of the United States. The state shall pay to the Secretary of the Treasury, at such time or times as may be prescribed under the Social Security Act, contributions equal to the taxes which would be imposed by the Federal Insurance Contributions Act if the services covered by the agreement constituted employment within the meaning of that act.”
      A state may permit its political subdivisions to decide whether to include the subdivisions’ employees under a federal-state social security agreement. Social Security Administration Handbook § 1001.

         “[General Statutes] Sec. 7-454. EMPLOYEES NOT INCLUDED. In determining the municipal employees entitled to participate in the system and the extent of their participation, all service performed by an employee in the employ of any municipality which joins the system, for such employer, shall be included except as provided in this section. The following services shall be excluded: (1) Services which, in the absence of federal-state agreement, would constitute ‘employment’ as defined in the Social Security Act, (2) services of individuals in positions covered under the Connecticut state teachers’ retirement association other than services performed by individuals to whom Section 218 (c) (3) (B) of the Social Security Act is applicable; services of individuals in policemen’s or firemen’s positions covered under fund A or fund B or local retirement systems and (3) services which, under the Social Security Act, may not be included in an agreement between the state and the Secretary entered into under sections 7-452 to 7-459, inclusive. Service which under the Social Security Act may be included in an agreement only upon certification by the governor in accordance with Section 218 (d) of said act shall be included if and when the governor issues, with respect to such service, a certificate to the Secretary pursuant to section 7-455. Any municipality applying for membership in the system may elect to exclude from membership in the system the following: (a) All services in any class or classes of elective positions, part-time positions or positions the compensation for which is on a fee basis, (b) student service to the fullest extent such coverage is permitted under Section 218 of the Social Security Act, (e) services performed by individuals to whom Section 218 (c) (3) (B) of the Social Security Act is applicable or (d) any services which may be optionally excluded under Section 218 (c) of the Social Security Act. Any municipality which joined the system prior to July 8, 1955, shall be deemed to have elected exclusion (c). Where any municipality covers under the agreement the services described in exclusion (c), the services of any individual thereby covered shall cease to be covered by the agreement if he thereafter becomes eligible to be a member of a retirement plan, but only if the agreement is not already applicable to such plan pursuant to Section 218 (d) of the Social Security Act. Nothing in sections 7-451 to 7-459, inclusive, shall prevent coverage under the system in accordance with Section 218 (d) (8) of the Social Security Act of services of individuals in positions covered by more than one retirement system. Where, prior to June 29, 1959, services in positions covered by a retirement system have been covered under the system, the legislative body of a municipality may request that services of individuals excluded from such coverage because such positions were covered by another retirement system be included under the system, and such services shall be covered under the system in accordance with Section 218 (d) (8) of the Social Security Act.”

       General Statutes § 10-183b (3) provides in pertinent part: “ ‘Annual Salary’ means the annual salary rate for services as a Connecticut teacher during a school year but not including unused sick leave, unused vacation, terminal pay, coaching or extra duty assignments, unless compensation for coaching or extra duty assignment was included in salary for which contributions were made prior to July 1, 1971.”

       Extra duty assignments include positions such as drama coach and director of the yearbook committee.

       “[General Statutes] Sec. 4-176. declaratory RULINGS. 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. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       In their petition for a declaratory ruling, the plaintiffs requested that the commission rule on the following questions:
      “(I) Are the Petitioners independent ‘municipalities’ within the meaning of Conn. Gen. Stat. § 7-452 (1) and therefore are not subject to its requirements because they never entered into an agreement to participate in the Social Security system?
      “(II) Are the wages paid by the Petitioners for services of teachers in coaching and extra-duty assignments excluded from the Social Security tax under Conn. Gen. Stat. § 7-454 (2)?
      “(Ill) May the Commission enforce a new statutory interpretation requiring contributions for coaching pay retroactively without following rule-making procedures under the Uniform Administrative Procedure Act, Conn. Gen. Stat. § 4-166 et seq., (‘UAPA’) despite a thirty year past practice to the contrary that enjoyed tacit legislative approval?”

       With regard to the appointment and payment procedures for extra duty and coaching assignments, the commission in its declaratory ruling made the following findings of fact:
      “Number of Stipends. In connection with extracurricular positions, in Avon there are approximately 113 ‘stipends,’ or separate salary accounts; in Cromwell about 51; and in Madison about 70. More than one of the ‘stipends’ may be paid to one individual.
      “Appointment Procedures and Term of Appointment. Although the [plaintiffs] do not appear to follow exactly the same procedures in arranging to fill extracurricular positions, typically the school principal has the extracurricular position posted, then individuals who are teachers apply to fill the position. After looking over the applications the principal recommends an individual to the Assistant Superintendent who reviews the recommendation and, if it is approved, submits the recommendation to the Board of Education which accepts or rejects it. The appointments are annual in Avon and Cromwell, continuous, during satisfactory performance, in Madison.
      “Contract Forms Used. In Avon no set form of contract is used when an appointment is made to an extracurricular position. In Cromwell a form is executed. In Madison either a paragraph is added to the annual appointment letter explaining the circumstances of the appointment and the amount of compensation for the position or a separate letter is sent concerning the extracurricular position.
      “Payment. In Avon all those in extracurricular positions, except the part-time coach position, are paid bi-weekly as part of the check they receive as teachers. In Cromwell they typically receive separate checks at the end of each season or semester. In Madison payment is one half at the beginning of the season or semester and one half at the end of the season or semester.”

       General Statutes § 7-452 (1) provides: “ ‘Municipality’ means any town, consolidated town and city, consolidated town and borough, borough, fire district, school district, district department of health, regional planning agency, probate district, housing authority, flood commission or authority established by special act or other municipal association created by special law or by general law or an instrumentality of any of these, if such instrumentality is a distinct juristic entity legally separate from any of the above and its employees are not, through this relation, employees of one of the above.”

       The plaintiffs do not make a claim that they meet the “distinct juristic entity” test set forth in General Statutes § 7-452 (1).

       “[General Statutes] Sec. 4-165. immunity of state officers and employees from personal liability. No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. For the purposes of this section ‘scope of employment’ shall include, but not be limited to, representation by an attorney appointed by the public defender services commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a petition of delinquency, representation by such other attorneys, referred to in section 4-141, of state officers and employees, in actions brought against such officers and employees in their official and individual capacities, the discharge of duties as a trustee of the state employees retirement system, the discharge of duties of a commissioner of superior court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, and the discharge of duties of a person appointed to a committee established by law for the purpose of rendering services to the judicial department; provided such actions arise out of the discharge of the duties or within the scope of employment of such officers or employees. For purposes of this section, members or employees of the soil and water district boards established pursuant to section 22a-315 shall be considered state employees.”

       The plaintiffs also contend that their teachers should be classified as state employees, thereby entitling them, under General Statutes § 5-158 (a) (1) (C), to an exemption from social security coverage for “part-time” positions such as coaching and extra duty assignments. This claim was not raised by the plaintiffs at any of the proceedings below. We therefore decline to address it. Practice Book § 4185; see Burnham v. Administrator, 184 Conn. 317. 322-23, 439 A.2d 1008 (1981).

       General Statutes § 10-183n (a) (4) provides in pertinent part: “duties of teachers’ EMPLOYERS, transmission OF deductions, (a) Each employer shall ... (4) deduct each month six per cent of one tenth of such teacher’s annual salary rate as directed by [the teachers’ retirement board] and any additional voluntary deductions as authorized by such teacher . . . . ”

       We have examined the plaintiffs’ briefly stated argument that they were denied procedural due process because “no attempt was made by the Commission to afford school districts notice or an opportunity to be heard prior to the Commission’s decision in 1971 to subject teachers’ coaching and extra-duty pay to the social security tax.” (Emphasis added.) In view of our conclusion that the plaintiffs are not “school districts,” they lack standing to assert any claim on behalf of school districts allegedly affected by the commission’s actions. Cf. Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 589, 508 A.2d 735 (1986) (a party may not claim that a provision is invalid because it impermissibly impinges upon the due process rights of others).


author: Hull, J. Arthur H. Healey, J.,

text:
    Town of Southington v. Connecticut State Board of Labor Relations et al.
    (13494)
    Peteks, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 3
    decision released March 28, 1989

      Donald W. Strickland, for the appellant (plaintiff).

      Joseph M. Celentano, assistant counsel, with whom was Barbara J. Collins, for the appellees (defendants).

      George C. Hastings, Cynthia J. Bates and Daniel F. Sullivan filed a brief for the Connecticut Conference of Municipalities as amicus curiae.
   Hull, J.

The dispositive issue in this case is whether the state board of labor relations erred in deciding that the positions, of tax assessor, building official, town planner, tax collector and youth counselor in the town of Southington were not department heads within the meaning of General Statutes § 7-467, as amended by Public Acts 1983, No. 83-503, and therefore were not excluded from collective bargaining with the town. We concur with the decision of the board and conclude that the Superior Court did not err in dismissing the town’s appeal from the board’s decision.

The background of this case is as follows. On September 12, 1983, the defendant union, Local 818 of Council 4, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, filed with the defendant state board of labor relations (board) a petition seeking to represent all supervisory employees who worked for the town of Southington. On March 12, 1984, the board issued an order of election for union representation that included fourteen supervisory positions in the town, among them the five positions disputed in this case. The town challenged the eligibility of ten of the fourteen employees, claiming that they were “department heads,” who were prohibited from bargaining collectively under the Municipal Employees Relations Act (MERA), General Statutes § 7-467 et seq. The election was held on April 10,1984, and the town again challenged the ballots of certain town officials, including the disputed five positions. The challenged ballots were sealed pending a determination by the board. Hearings on the town’s objections and challenges were held by the board. In its decision- (number 2451) issued on December 26, 1985, the board determined that the positions of sewer superintendent and superintendent of highways were “department heads” within the meaning of Public Acts 1983, No. 83-503 (codified as General Statutes § 7-467) and therefore were excluded from the collective bargaining unit, but found that the remaining challenged positions, including the five disputed positions, were not “department heads” and thus were properly within the collective bargaining unit. Thereafter, the challenged ballots were opened and the board determined that a majority of the town’s eligible supervisory employees had voted in favor of union representation. Subsequently, on January 9, 1986, the board issued another decision (number 2451-A) certifying the union as the exclusive bargaining representative of the supervisors in the town.

On January 29, 1986, the union demanded that the town negotiate a collective bargaining agreement for all of the employees in the supervisors’ bargaining unit. At the first bargaining session, the town refused to bargain with the union over the five disputed positions. The union then filed an unfair labor practice charge against the town, with the board, pursuant to General Statutes § 7-470 (a) (4), for its refusal to bargain. On June 4,1986, the board issued decision No. 2498 ordering the town to bargain with the union over the disputed positions. On June 26,1986, the town appealed that decision to the Superior Court pursuant to General Statutes § 4-183. The trial court defined the sole issue as whether the board’s decision was rendered in accordance with the definition of “department head” contained in General Statutes § 7-467 (4). In affirming the board’s decision and dismissing the town’s appeal, the court stated that it gave “great deference” to the board’s construction of the statute. The town then appealed to the Appellate Court, and we transferred the appeal to ourselves pursuant to Practice Book § 4023.

It is particularly useful in this case to summarize the board’s comprehensive and scholarly decision No. 2451. The term “department head” was not defined under MERA until the passage of Public Acts 1983, No. 83-503, which became effective on October 1, 1983. During the period from 1978 to 1983, the board attempted to fashion a reasonable definition of “department head” on a case-by-case basis. In deciding whether a person was a “department head,” the board had developed several guiding principles, among them: (1) the word “department” as used in MERA is a term of art referring to the largest divisions of government; (2) a person claimed to be excluded as a “department head” must exercise supervision over a substantial number of employees; (3) if a town charter identifies a division of government as a department, the board will consider that identification, but not be bound by it; and (4) the exception is to be narrowly construed.

The board’s decision took note of four changes from existing practice contained in Public Acts 1983, No. 83-503. First, under the act, provisions of local charters or of special acts became irrelevant to the determination of whether a division of government constitutes a “department.” Second, to qualify as a “department head” under the act, a person must be directly accountable to the board of selectmen or to the chief executive officer of a town. Third, the act substituted a new test for supervisory control that, instead of looking to the number of supervised employees, required that a department head must have “substantial supervisory control of a permanent nature over other municipal employees.” The board stated that it had not before required that, to be a department head, an individual have a degree of supervisory control greater than that of non-department head supervisors. In view of the new act, however, the board decided that to be a department head, one must do more than merely meet the definition of supervisor, one must actually have substantial supervisory control. Finally, the board analyzed the impact of the change from its definition of a “department” as being one of the largest divisions of government to being, under the act, a “major functional division” of government. The board decided that: (1) this is an expansion of its prior definition of a “department”; (2) the concept of “major functional division” must be considered within the context of the particular municipality in question; (3) what might be a “major functional division” in a small town, may not be a “major functional division” in a large city; (4) whether a division is major must be determined in view of objective factors such as the division’s budget, staff size, and control over the use of municipal resources; and (5) it is inappropriate for the board to base its decision upon its own notions of what, in relative terms, is a more or less important function of local government. The board rejected the town’s argument that the local subjective view of the importance of a function should control. It found that view relevant, but only as reflected through the objective factors described above.

The board then listed the following criteria for determining whether a person is a “department head” under the act: “(1) Does the person report directly to the Board of Selectmen or the Chief Executive Officer of the municipality, i.e. with no intervening level of authority? (2) Does the person exercise a degree of permanent supervisory control over other municipal employees which is greater than what is necessary to qualify the person merely as a supervisor under the Act? (3) Does the person head a division of municipal government which in terms of budget, staff size, and control of the use of municipal resources is a major functional division of that municipality’s government?” The board ruled that each of these questions must be answered in the affirmative for a person to meet the definition of “department head” under the act.

Applying these criteria, the board found two positions that the town had challenged to be “department heads”: the sewer superintendent and the superintendent of highways. Neither position is involved in this appeal. With respect to the five disputed positions, the board found that they were not in charge of “major functional divisions” of the town. Therefore, none of the five was a “department head” and all could be included in a bargaining unit of supervisors. Specifically, the board found the following concerning each of the five positions: (1) tax assessor; three other employees; comparatively small budget; (2) building official; four other employees; comparatively small budget; (3) town planner; two other employees; budget of $69,000; (4) tax collector; four other employees; comparatively small budget; and (5) youth counselor; three other employees; comparatively small budget. Finally, the board noted that with regard to the employees holding the first four of these positions, although each performed functions that concerned considerable municipal resources, none of them controlled the use to which those resources were put. The board then ordered the challenged ballots opened. As a result of the board’s decision, out of the ten ballots cast, what had been a vote of three in favor of representation and zero against, became a vote of eight in favor of representation, two void ballots, and zero opposed to representation. It was this vote in favor of representation that precipitated this litigation.

After being ordered by the board to bargain with the union over the disputed positions, the town appealed to the Superior Court. General Statutes § 4-183. In upholding the board’s decision, the trial court gave “great deference” to the board’s interpretation of Public Acts 1983, No. 83-503 and found that “[t]he interpretation of department head and functional division as utilized by the labor board does not constitute an arbitrary or capricious characterization or an abusive or unwarranted exercise of their discretion.”

On appeal to this court, each party cites extensive facts to buttress its position. Many of the facts claimed by the parties, however, were not found by the board or the trial court. We must therefore cull out those facts agreed upon, admitted, undisputed or contained in exhibits. Southington is governed by a council-manager form of government. The town manager is the chief executive officer of the town and is directly responsible for the management of the individual departments within the town. The town charter provides for each of the first four disputed positions, designating each such division as a department. The youth counseling department was created in 1973 after the charter was adopted. Each of the employees holding a disputed position is appointed by and reports directly to the town manager. These appointments are made without the approval of any other person or entity.

The town cites numerous examples of local practices to support its claims that it has treated each of the five disputed positions as a department head, including: (a) listing of the'positions as separate departments in the annual reports and the local telephone directory; and (b) defining the positions in the town’s personnel rules and regulations as those of persons responsible for directing the operations of a major organizational unit of town government. The town then cites seventeen examples of how, locally, the disputed positions carry responsibilities similar to those of a department head. The town thereafter in its brief describes the functions of each of the disputed positions to demonstrate how important each is to local government. The union, whose counterstatement of facts was adopted by the board, argues other detailed facts, not agreed upon by the parties, which it claims show that none of the disputed positions is a major functional division of the town. Contrary to the town, the union then analyzes each of the disputed positions with claimed facts that it argues tend to show that the positions in question were not those of department heads.

The town employs a shotgun approach in its appeal, claiming that the labor board’s decision was: (1) in violation of statutory provisions; (2) affected by error of law; (3) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; and (4) arbitrary. Although the town stated the issues in its brief in six separate paragraphs, they substantially overlap. For purposes of clarity, we will consider the all-embracing issue to be whether the labor board erred in deciding that the five disputed positions were not those of “department heads” within the meaning of General Statutes § 7-467, as amended by Public Acts 1983, No. 83-503, and therefore were not excluded from the collective bargaining unit of supervisory town employees.

“The standard of judicial review of administrative agency rulings is well established. . . . The trial 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 (g). . . . 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).

“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). This case presents a question of law turning upon the interpretation of a statute. . . . Such a question 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.” State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717-18, 546 A.2d 830 (1988).

In New Haven v. Freedom of Information Commission, 205 Conn. 767, 773-74, 535 A.2d 1297 (1988), we stated: “Ordinarily, the construction and interpretation of a statute is a question of law for the courts where the administrative decision is not entitled to special deference, particularly where, as here, the statute has not previously been subjected to judicial scrutiny or time-tested agency interpretations.” Neither the board nor the courts have previously ruled on the issue in this case. Accordingly, no special deference is due the board’s construction of Public Acts 1983, No. 83-503.

In support of its position, the town relies almost exclusively on the legislative history of the act. “Our principal objective in construing statutory language is to ascertain the apparent intent of the legislature. Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988).” State Medical Society v. Board of Examiners in Podiatry, supra, 721. “When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. . . . When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself . . . the legislative history and circumstances surrounding the enactment of the statute . . . and the purpose the statute is to serve.” (Citations omitted.) Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

The legislative history of Public Acts 1983, No. 83-503 discloses the following. The act originated in the legislature as House Bill No. 5540. The primary purpose of the bill was to define the term “department head” for the labor board. 26 H.R. Proc., Pt. 6, 1983 Sess., pp. 2262-63. In the House of Representatives, Representative Richard O. Belden proposed to clarify the definition of “department head” by adding to it a list of twenty-eight specifically designated department heads that would be excluded from the collective bargaining process; id., p. 2261; but that list was later deleted from the bill at the insistence of Senator Joseph H. Harper, Jr. Senator Harper stated that a definition that included such a listing of department heads to be excluded from the collective bargaining process “would supersede home rule prerogatives that municipalities currently have to define and determine their own departments.” 26 S. Proc., Pt. 8, 1983 Sess., p. 2651. He intended that the labor board should “determine on a cáse by case basis whether or not that entity the individual is the head of is, in fact, [a] department Id., p. 2653. The town argues that Senator Harper’s remarks show a legislative intent to allow municipalities to define their own departments. When asked, however, whether his proposed definition of “department head,” without the department heads expressly listed, was a broader definition, Senator Harper responded that he was “not certain whether what remains is broader.” Id.

Upon return of the bill with Senator Harper’s amendment to the House, Representative William A. Kiner added another amendment defining a “department” as “any major functional division within a municipal organization, notwithstanding the provisions of any charter or special act to the contrary.” 26 H.R. Proc., Pt. 20,1983 Sess., p. 7084. That definition of “department” was incorporated in Public Acts 1983, No. 83-503. No further illumination of legislative intent is apparent in the record.

We conclude that the legislation resulted in a new statutory definition of “department head” hammered out in typical legislative fashion, reflecting various political and social viewpoints, and shedding little light on the legislative intent concerning the meaning of that term. Accordingly, we discern neither a mandate for broadening the definition of “department head,” nor evidence of an intent to narrow it. For our purposes, the legislative intent is essentially neutral.

We thus return to the bedrock of statutory construction, the words used by the legislature. “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” General Statutes § 1-1 (a). “Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).

The town directs our attention to the definition of “department,” defined as “any major functional division in a municipal organization . . . . ” General Statutes § 7-467 (5). Defining the word “major” is not as difficult as the town claims. Every school boy knows the difference between the major leagues and the minor leagues. The word “major” has been defined as “greater in dignity, rank, importance or interest . . . greater in numbers, quantity or extent.” Webster’s Third New International Dictionary. The determination of which municipal functions are “major” is a particularly suitable task for the board, which by its very nature is sensitive to the labor-management implications of its decision and knowledgeable of the precedents in this area.

The gist of the town’s argument on this point is that if a function is “important” to the town it must automatically be a “major functional division” of the town within the meaning of the statute. To accept this argument would be to obliterate the statutory definition. It would subject the MERA’s statutory framework for determining which supervisors may be included in the collective bargaining process to the whims of a purely local and subjective definition of what is a “department” and a “department head.” To follow the town’s claim to its logical conclusion, the town could designate the high school football scorekeeper a department head since, as long as he had one assistant and met the other criteria established by the board, the town could claim the department of scorekeeping as a “major functional division.”

The town further claims that a proper determinative of whether a municipal division is “major” must be the proportion of its municipal resources dedicated to that division. It asserts that any argument that the departments in question are not major due to small size and budget must fail. This argument is tilting at windmills. The board’s decision reflects exactly the analysis that the town claims should have been made. The board made detailed findings as to each of the five disputed positions, comparing the functions, number of employees, and budget, with other positions such as superintendent of sewers and superintendent of highways, which it had already found to be major functional divisions. Our view of this case does not in any way suggest that the five disputed positions are not important to the town of Southington, or any town. It is obvious that without a tax collector or tax assessor, for example, no town could function. But the mere necessity of such a position does not automatically make it a major functional division of the town under the statute.

The town also claims that the board’s decision failed to recognize the change mandated by Public Acts 1983, No. 83-503, in that prior decisions of the board referred to the “largest” departments in a municipality when determining whether a person qualified as a department head, whereas the statute now requires that a person must be the head of a “major functional division.” It contends that the new definition was a conscious decision on the part of the legislature to make a substantial change in the process. We observe that the board’s decision did note four changes effectuated by the amendment. We do not, however, read the legislature’s action as making the substantive change in the law claimed by the town. The concept of “largeness” of a municipal function previously utilized by the board is subsumed in the term “major functional division.” The removal of the relative size of a municipal function in budget and number of employees from the determination of a “major functional division” would once again render the words an empty formula.

Finally, the town argues that the board’s failure to exclude the five disputed positions creates an unfair and discriminatory impact on smaller and less wealthy towns. We do not consider this argument for three reasons. First, the trial court’s memorandum of decision did not consider this issue. “The [appellant] . . . did not . . . seek, by motion for articulation in the trial court or this court; Practice Book §§ 4051,4061; to have the trial court address this issue. . . . It remains the appellant’s responsibility to furnish an adequate appellate record. Practice Book § 4061. Because the deficiency of the record regarding this claim should have been remedied by the [appellant], we will not remand the case to the trial court for rectification. Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 295-96, 533 A.2d 208 (1987); Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983). Therefore, we will not review this claim.” (Citations omitted.) McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988). Second, even if the issue were properly before this court, the town’s claim ignores the fact that the board specifically noted this factor in its decision: “[I]t is at least apparent from the debate in the House of Representatives that this idea of ‘major functional division’ is intended to be considered within the context of the particular municipality in question. For instance, what might be a major functional division in a small town, may not be a major functional division in a large city.” Third, this issue is precisely the type of question that is properly considered “across the street,” that is, in the General Assembly.

We conclude that the board’s decision was not in violation of statutory provisions, affected by error of law, or clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. The court did not err in dismissing the town’s appeal.

There is no error.

In this opinion Peters, C. J., Shea, Callahan, Glass, and Covello, Js., concurred.

Arthur H. Healey, J.,

dissenting. Contrary to the majority, I would conclude that the incumbents of the five disputed municipal positions of the town of Southington are “department heads” within the meaning of General Statutes § 7-467 (4) as amended by Pub-lie Acts 1983, No. 83-503. Each position, therefore, in my view, is excluded from the definition of “employee” and thus is also excluded from the collective bargaining unit of supervisory town employees under the Municipal Employees Relations Act, General Statutes § 7-467 et seq.

In construing statutes, emphasis must be accorded the social and economic factors giving rise to legislation and the effect that a particular interpretation will have upon society. Barrette v. Travelers Ins. Co., 28 Conn. Sup. 1, 7, 246 A.2d 102 (1968); see 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 54.07. Neither the board nor the trial court did this. A statute should not be interpreted in any way so as to thwart its purpose. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498 (1975); McAdams v. Barbieri, 143 Conn. 405, 419, 123 A.2d 182 (1956). The board and the trial court made such an interpretation.

The state labor relations board’s interpretation of the “department exclusion” in this case undermines not only the purpose of this exclusion but also pays little heed to the policy effect of its decision in the collective bargaining process. Only recently has this court expressly pointed out with approval that “[t]he objective of the Taft-Hartley Act ‘was to assure the employer of a loyal and efficient cadre of supervisors and managers independent from the rank and file.’ Shelofsky v. Helsby, [32 N.Y.2d 54, 60-62, 295 N.E.2d 774, 343 N.Y.S.2d 98, appeal dismissed, 414 U.S. 804, 94 S. Ct. 60, 38 L. Ed. 2d 41 (1973)].” State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 754, 529 A.2d 1276 (1987). In State Management Assn. of Connecticut, Inc., we went on, alluding to Shelofsky, to say that “[i]t is widely believed that this objective is equally applicable to and more important in the public sector.” Id. In that case, we upheld the exclusions of state employees designated as “managerial employees” or “managers” under General Statutes § 5-270. (g) from collective bargaining rights under the State Employees’ Relations Act, and, in doing so, concluded that such exclusion bore “a rational relationship to a legitimate state end.” Id., 757.

Of course, the statute involved in this case is not the same one addressed in State Management Assn. of Connecticut Inc., but the collective bargaining considerations, including the policy behind the “department head” exclusion and the objectives fostered by such exclusions, are the same. The board’s application of the “department head” exclusion in this case not only defeats the purpose behind the legislature’s enactment of the exclusion, but, on this record, does not recognize certain significant pragmatic factors in construing the statutory definition of the term “department,” i.e., “any major functional division in a municipal organization . . . . ” General Statutes § 7-467 (5). The five disputed positions, practically, fiscally and administratively, qualify as “major functional division[s] of a municipal corporation.” Despite the circumstance that a “department head” in Southington may seem insignificant in comparison to its analog in a large municipality, their respective roles in municipal government are equally vital even though such variables as their budget and the staff allocated to their departments might differ. For example, the tax collector in Southington is just as significant to that municipality as is the tax collector in Hartford or any other Connecticut municipality. In each case, the “department head” oversees a “major functional division in a municipal organization.” I am disturbed about the irresistible inference from the board’s decision that smaller communities with smaller staff and smaller actual dollar budgets may presumptively be consigned to qualifying rarely for the “department head” exclusion.

The majority refuses to discuss the town’s claim that the trial court erred in failing to discuss the application of the “department head” exclusion on the basis of budget and staff size. The town claims that the board’s application of the exclusion unfairly discriminates against smaller towns. The trial court did not, as it should have, consider this issue after it was raised and briefed in the trial court by both parties. At the very least, this important public issue should be remanded to the trial court to rule on it.

Therefore, I dissent.

       Council 4, AFSCME, AFL-CIO is also a separately named defendant in this case.

       Access to collective bargaining under the Municipal Employee Relations Act is limited to “employees,” defined by General Statutes § 7-467 (2) as follows: “ ‘Employee’ means any employee of a municipal employer, whether or not in the classified service of the municipal employer, except elected officials, administrative officials, board and commission members, certified teachers, part-time employees who work less than twenty hours per week on a seasonal basis, department heads and persons in such other positions as may be excluded from coverage under sections 7-467 to 7-477, inclusive, in accordance with subdivision (2) of section 7-471 (Emphasis added.)

       “[General Statutes] Sec. 7-467. collective bargaining, definitions. When used in sections 7-467 to 7-477, inclusive:
      “(1) ‘Municipal employer’ means any political subdivision of the state, including any town, city, borough, district, district department of health, school board, housing authority or other authority established by law, and any person or persons designated by the minicipal employer to act in its interest in dealing with municipal employees;
      “(2) ‘Employee’ means any employee of a municipal employer, whether or not in the classified service of the municipal employer, except elected officials, administrative officials, board and commission members, certified teachers, part-time employees who work less than twenty hours per week on a seasonal basis, department heads and persons in such other positions as may be excluded from coverage under sections 7-467 to 7-477, inclusive, in accordance with subdivision (2) of secton 7-471;
      “(3) ‘Seasonal basis’ means working for a period of not more than one hundred twenty calendar days in any calendar year;
      “(4) ‘Department head’ means an employee who heads any department in a municipal organization, has substantial supervisory control of a permanent nature over other municipal employees, and is directly accountable to the board of selectmen of a town, city or borough not having a charter or special act form of government, or to the chief executive officer of any other town, city or borough;
      “(5) ‘Department’ means any major functional division in a municipal organization, notwithstanding the provisions of any charter or special act to the contrary;
      “(6) ‘Employee organization’ means any lawful association, labor organization, federation or council having as a primary purpose the improvement of wages, hours and other conditions of employment among enployees of municipal employers.”

       "1. Did the court err in affirming the decision of the Connecticut State Board of Labor Relations to include in the collective bargaining unit the five department heads (Tax Assessor, Tax Collector, Building Official, Youth Counselor and Town Planner) in the Town of Southington?
      “2. Did the court err in finding that Public Act 83-503 did not establish a clear mandate excluding the Town of Southington’s five department heads from the collective bargaining unit?
      “3. Did the court err by ruling that the decision of the Connecticut State Board of Labor Relations including the Town of Southington’s five department heads in the collective bargaining unit was not arbitrary, capricious or an unwarranted abuse of its discretion?
      “4. Did the court err by failing to find that the Connecticut State Board of Labor Relations acted illegally and beyond its statutory mandate by ignoring the requirements of Public Act 83-503 and including the Town of Southington’s five department heads in the collective bargaining unit?
      “5. Did the court err by failing to consider the disparate impact on the smaller and less wealthy towns in the State of Connecticut which resulted from the decision of the Connecticut State Board of Labor Relations to include the five department heads of the Town of Southington in the collective bargaining unit?
      “6. Did the court err by failing to rule that the decision of the Connecticut State Board of Labor Relations to include the five department heads in the Town of Southington was contrary to law and clearly erroneous in light of the reliable, probative, and substantial evidence?”