author: PETERS, C. J. BERDON, J.,

text:
    COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. TRUELOVE AND MACLEAN, INC., ET AL.
    (15375)
    (15376)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued April 24
    officially released July 30, 1996

      Charles Krich, assistant commission counsel, with whom was Philip A. Murphy, Jr., commission counsel, for the appellant in Docket No. 15375 (plaintiff).

      Eddi Z. Zyko, for the appellant in Docket No. 15376 (Kristine A. Jennings).

      Donald A. Gray, Jr., for the appellee in both cases (named defendant).
   PETERS, C. J.

This appeal principally concerns the applicability of the remedies provided by various general antidiscrimination statutes in the context of discriminatory employment practices. The claimant, Kristine A. Jennings, filed with the commission on human rights and opportunities (commission) a complaint alleging that her former employer, the defendant, Truelove and Maclean, Inc., had discriminated against her because of her pregnancy. After a public hearing, a commission hearing officer determined that the defendant had engaged in discriminatory employment practices, and awarded the claimant disability insurance benefits and damages for emotional distress. The trial court dismissed an appeal brought by the commission on behalf of the claimant, in which she sought additional relief, and granted the motion of the defendant to vacate the award of damages for emotional distress. The claimant and the commission appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. In March, 1981, the claimant began her full-time employment with the defendant. In November, 1984, due to fatigue and back strain caused by her pregnancy, the claimant considered herself incapable of effectively performing the duties and responsibilities associated with her employment. Accordingly, she spoke with the defendant’s personnel manager to request a leave of absence. The personnel manager informed the claimant that the defendant had no policy that allowed for pregnancy disability leave and that the defendant would not allow such a leave of absence. The defendant’s treasurer similarly informed the claimant that the defendant could not provide a leave of absence under the circumstances. When the claimant asked whether she could return to work for the defendant after the birth of her child, the personnel manager informed her that she would have to reapply for a position and that she would receive consideration if a position were available. Although the defendant invited the claimant to reapply, it did not guarantee her reemployment. Nonetheless, the defendant maintained that it would have favorably considered the claimant for any vacant position if she had reapplied because, as the defendant’s personnel manager testified, she had been a good employee.

On December 14, 1984, the claimant terminated her employment with the defendant because of the denial of her request for a leave of absence and because of her physical inability to perform her duties effectively due to her pregnancy. After the birth of her child in January, 1985, the claimant never applied to the defendant for reinstatement to her former position or for employment in any other position. Approximately six months after the birth of her child, the claimant resumed employment, on a part-time basis, at an answering service. She subsequently terminated her employment with the answering service and took another part-time position with a bank.

In the complaint that the claimant filed with the commission, she claimed that the defendant had discriminated against her because of her pregnancy in a number of respects. The claimant alleged that, by denying her a leave of absence, the defendant had constructively terminated her employment and that this conduct had violated General Statutes §§ 46a-58 (a) and 46a-60 (a) (1) and (a) (7) (A) through (D).

After compliance with the required procedural steps, including a public hearing, the commission’s hearing officer concluded that the defendant had discriminated against the claimant because of her pregnancy by refusing her a maternity leave of absence, in violation of § 46a-60 (a) (7) (A), (B) and (C). The hearing officer found, however, that “after the termination and when [the claimant] was able to return to work, she never reapplied for her job, although she had been told she could reapply, but without a guarantee of rehiring. This hearing officer has reread [the claimant’s] testimony on this point several times, but does not find a satisfactory explanation for her not reapplying. . . . One can only wonder why she did not reapply. The worst that could have happened was that she did not get a job with the [defendant]. As is she had no job with the [defendant] so she would have lost nothing if not rehired. This all becomes very speculative since she did not reapply for work.” In light of these findings that any further award would be speculative, the hearing officer declined to award the claimant reinstatement and back pay pursuant to General Statutes § 46a-86 (b). The hearing officer awarded the claimant only $1815 in disability insurance benefits and $5000 in damages for emotional distress.

Pursuant to General Statutes §§ 4-183 and 46a-94a, the commission, on behalf of the claimant, appealed from the decision of the hearing officer to the Superior Court. The commission claimed, inter aha, that the hearing officer improperly had failed to award the claimant reinstatement and back pay pursuant to § 46a-86 (b) and had failed to determine that the defendant had violated § 46a-60 (a) (7) (D). The trial court granted the claimant’s motion to be joined as a plaintiff in the appeal. The defendant subsequently moved to vacate the hearing officer’s award of damages for emotional distress and disability insurance benefits.

The trial court dismissed the commission’s appeal. With respect to the commission’s claim that § 46a-86 (b) required the hearing officer to award the claimant reinstatement and back pay, the court concluded that the denial of such remedies was proper because the statute made such relief discretionary rather than mandatory. With respect to the defendant’s alleged violations of § 46a-60 (a) (7) (D), the court concluded that such a claim was foreclosed by the hearing officer’s findings of fact regarding the claimant’s unexplained failure to reapply for her position with the defendant, findings of fact for which there was substantial evidence in the administrative record. Although the trial court vacated the hearing officer’s award of damages for emotional distress; see footnote 6; the court sustained the hearing officer’s award of disability insurance benefits. The court declined to consider the commission’s claim that damages for emotional distress could be awarded pursuant to § 46a-58 (a) because it determined that the claim had not been raised in the commission’s appeal petition.

The commission and the claimant have both appealed from the judgment of the trial court. They claim that the trial court improperly: (1) vacated the hearing officer’s award of damages for emotional distress; (2) upheld the hearing officer’s decision not to award the claimant reinstatement and back pay; (3) upheld the hearing officer’s determination that the defendant had not violated § 46a-60 (a) (7) (D); and (4) considered evidence outside the administrative record in deciding the appeal. We are not persuaded by any of these claims.

I

The commission contends that the trial court improperly concluded that the claimant was not entitled to an award of damages for emotional distress. Specifically, the commission argues that our decision in Fenn Mfg. Co. v. Commission on Human Rights & Opportunities, 232 Conn. 117, 652 A.2d 1011 (1995), in which we considered and denied such relief for violations of § 46a-60 (a) (7), does not foreclose such relief for violations of § 46a-58 (a). The commission’s argument is that § 46a-58 (a) encompasses claims of discriminatory employment practices and that violations of § 46a-58 (a) entitle a claimant to damages for emotional distress pursuant to § 46a-86 (c). We disagree.

A

Initially, we agree with the commission that the trial court should have addressed the merits of the commission’s claim of an award of damages for emotional distress premised on § 46a-58 (a). The trial court declined to do so on the ground that the commission had failed to raise the claim in its administrative appeal. We are persuaded, however, that the claim was properly before the trial court. Although the commission’s petition to the Superior Court failed specifically to invoke the applicability of § 46a-58 (a), the commission did raise the claim in its appeal to the trial court. The commission addressed the claim both in its original brief and in its reply brief. The defendant never contested the propriety of the commission’s initial raising of the claim before the trial court and has never contended that it had been prejudiced in any way. To the contrary, the defendant argued the merits of the commission’s claim in the trial court, addressing the issue in its brief, in its rebuttal brief and at oral argument. Under these circumstances, we are persuaded that the trial court should have addressed the commission’s claim. Cf. Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496-97, 646 A.2d 1289 (1994); Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990), on appeal after remand, 222 Conn. 233, 610 A.2d 574 (1992).

Although we could remand this case to the trial court for consideration of the commission’s claim on its merits, we have decided to address the claim ourselves. The claim involves a question of law that requires no further factual foundation, namely, whether § 46a-58 (a) applies to discriminatory employment practices, and the parties have fully briefed the claim before this court. We agree, therefore, with the commission that addressing the merits of its claim will serve the interests of judicial economy. See Matarazzo v. Rowe, 225 Conn. 314, 324, 623 A.2d 470 (1993); Rose v. Freedom of Infor mation Commission, 221 Conn. 217, 231-32, 602 A.2d 1019 (1992).

B

With respect to the merits of the commission’s claim, we are persuaded that § 46a-58 (a) does not encompass claims of discriminatory employment practices that fall within the purview of § 46a-60. “It is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) Gaynor v. Union Trust Co., 216 Conn. 458, 476, 582 A.2d 190 (1990); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 199, 663 A.2d 1001 (1995). Application of this principle of statutory construction to the present case defeats the commission’s claim. Unlike § 46a-58 (a), which generally forbids “any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability,” § 46a-60 specifically prohibits discriminatory employment practices. Accordingly, the specific, narrowly tailored cause of action embodied in § 46a-60 supersedes the general cause of action embodied in § 46a-58 (a).

Our conclusion that § 46a-58 (a) does not apply to discriminatory employment practices encompassed by § 46a-60 finds support in § 46a-86, which sets forth the relief that a claimant may receive for a violation of certain provisions of title 46a. “We assume that the legislature attempts to create a consistent body of law. . . . Assuredly, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... Indeed, this tenet of statutory construction requiring us to read statutes together is particularly applicable when the statutes relate to the same subject matter. . . . Finally, [w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” (Citations omitted; internal quotation marks omitted.) Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 455, 668 A.2d 340 (1995); Derwin v. State Employees Retirement Commission, 234 Conn. 411, 420, 661 A.2d 1025 (1995); Daly v. DelPonte, 225 Conn. 499, 510, 624 A.2d 876 (1993).

Subsection (b) of § 46a-86 sets forth the remedies available to a victim of a “discriminatory employment practice.” Subsection (c) of § 46a-86, in contrast, sets forth separate remedies available to a victim of a “discriminatory practice prohibited by section 46a-58 . . . .” The presence of these two separate subsections, § 46a-86 (b) and (c), reflects “a clear intention by the legislature to restrict the scope of both subsections to only certain types of discrimination.” Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 106, 653 A.2d 782 (1995). The fact that § 46a-86 provides separate remedies for discriminatory employment practices under § 46a-60 and for discriminatory practices under § 46a-58 (a) is strong evidence of the legislature’s intent that § 46a-58 (a) does not govern employment claims encompassed by § 46a-60.

We thus conclude that § 46a-58 (a) provides no basis for claims of discriminatory employment practices that fall within the scope of § 46a-60. In this case, the hearing officer determined that the defendant had violated § 46a-60 (a) (7) (A), (B) and (C). That determination cannot be used as a basis for finding a violation of § 46a-58 (a). Accordingly, the commission’s claim that an award of damages for emotional distress arising from discriminatory employment practices may be predicated upon a violation of that statute must likewise fail.

II

The claimant contends that the trial court improperly concluded that she was not entitled to an award of reinstatement and back pay. Specifically, the claimant argues that § 46a-86 (b) mandates an award of reinstatement and back pay upon a hearing officer’s finding that a defendant has engaged in discriminatory employment practices. We agree with the trial court that the granting of an award of reinstatement and back pay rests in the discretion of the hearing officer, and conclude that the hearing officer in this case did not abuse his discretion in refusing to grant such an award.

A

Whether a hearing officer is required to award reinstatement and back pay upon a finding of discriminatory employment practices depends on a proper inteipretation of § 46a-86 (b). We approach this issue in light of well established principles of statutory construction. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation. ... In order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation.” (Citations omitted; internal quotation marks omitted.) Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A.2d 850 (1995); Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights & Opportunities, 204 Conn. 287, 294-95, 528 A.2d 352 (1987).

“As with any issue of statutory interpretation, our initial guide is the language of the statute itself.” (Internal quotation marks omitted.) Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 756, 674 A.2d 1313 (1996); see Bridgeport Hospital v. Commission on Human Rights & Opportunities, supra, 232 Conn. 98. Section 46a-86 (b) provides that a hearing officer, upon a finding of discriminatory employment practices, “may order the hiring or reinstatement of employees, with or without back pay . . . .” (Emphasis added.) We have consistently held that “may” is directory rather than mandatory. See, e.g., Seals v. Hickey, 186 Conn. 337, 345-17, 441 A.2d 604 (1982). The word “may,” unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion. See id., 345; Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980); see also A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 611, 577 A.2d 709 (1990).

The conclusion that, in § 46a-86 (b), “may” has its ordinary directory meaning is supported by the fact that “shall,” which is often interpreted as mandatory, is also used several times in the same sentence and elsewhere in § 46a-86 (b). “The use of the word ‘shall’ in conjunction with the word ‘may’ confirms that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings.” (Citation omitted; internal quotation marks omitted.) Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 694, 674 A.2d 1300 (1996).

The interpretation of “may” in § 46a-86 (b) as directory rather than mandatory is, furthermore, consistent with the policy that the statute is designed to implement. Under our laws prohibiting discrimination in the workplace, a hearing officer must construct a remedy for discriminatory employment practices in order to render a decree that will, “so far as possible, ehminate the discriminatory effects of the past as well as bar like discrimination in the future.” (Internal quotation marks omitted.) State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 478, 559 A.2d 1120 (1989); see Bridgeport Hospital v. Commission on Human Rights & Opportunities, supra, 232 Conn. 111; Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230-31, 487 A.2d 201 (1985). This remedial goal is furthered by vesting in a hearing officer broad discretion to award reinstatement, back pay or other appropriate remedies specifically tailored to the particular discriminatory practices at issue.

Thus, guided by the plain language of the statute and by the purpose the statute was intended to further, we conclude that § 46a-86 (b) does not mandate that a hearing officer award reinstatement and back pay to a victim of discriminatory employment practices. Rather, the statute vests discretion in a hearing officer to grant such relief under the proper circumstances.

B

We agree with the trial court that the hearing officer’s refusal to award the claimant reinstatement and back pay was not an abuse of discretion. “[T]he factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts . . . .” (Internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights & Opportunities, supra, 232 Conn. 109. The administrative record indicates that the hearing officer contemplated, but ultimately rejected, awarding reinstatement and back pay to the claimant. The hearing officer found that the claimant had never sought to return to her full-time position or to apply for any other position with the defendant, although she had the opportunity to do so. The hearing officer also found that the claimant had sought only part-time employment following the birth of her child and that the defendant had not been shown, in the record, to have available part-time employment for anyone. Under these circumstances, we conclude that the hearing officer’s decision not to award reinstatement and back pay pursuant to § 46a-86 (b) did not constitute an abuse of discretion.

Ill

The claimant also contends that the trial court improperly concurred in the hearing officer’s determination that the defendant had not violated § 46a-60 (a) (7) (D). We agree with the trial court.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . This ‘substantial evidence rule’ is embodied in General Statutes § 4-183 (j) (5) and (6). . . .” (Citations omitted; internal quotation marks omitted.) Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259-60, 673 A.2d 101 (1996); Dolgner v. Alander, 237 Conn. 272, 280-81, 676 A.2d 865 (1996).

Under § 46a-60 (a) (7) (D), it is a discriminatory practice for an employer “to fail or refuse to reinstate [an] employee [who had been pregnant] to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so . . . .” (Emphasis added.) Substantial evidence supports the hearing officer’s finding that the claimant never adequately signified her intent to resume employment with the defendant, a necessary predicate for a violation of § 46a-60 (a) (7) (D). Although prior to the birth of her child the claimant had expressed to the defendant’s personnel manager her desire to resume her employment with the defendant after her pregnancy, she never thereafter signified her intent to return. To the contrary, after the claimant left the defendant’s employ, she never sought either reinstatement or reemployment with the defendant, but rather sought part-time employment elsewhere upon her return to the workforce.

Moreover, the facts found by the hearing officer, which the claimant and the commission have not challenged as unsupported by substantial evidence, do not indicate that it would have been futile for the claimant to have reapplied for a position with the defendant. The defendant offered the claimant the opportunity to reapply for her former position, and encouraged her to do so. The claimant, however, never availed herself of that opportunity. The hearing officer found that the claimant had not offered “a satisfactory explanation for her not reapplying.”

Section 46a-60 (a) (7) (D) expressly provides, as a condition precedent to establishing a violation thereof, that a claimant must “[signify] her intent to return” to employment with the employer. Our review of the administrative record reveals that substantial evidence supported the hearing officer’s finding that this condition precedent had not been established in this case. Accordingly, we agree with the trial court that the hearing officer properly determined that the defendant had not violated § 46a-60 (a) (7) (D).

IV

The claimant next contends that in reaching its decision the trial court improperly relied on evidence not contained in the administrative record. Although this claim is ambiguously stated, we will construe it as an allegation that the trial court considered evidence not contained in the administrative record regarding the claimant’s employment history subsequent to the birth of her child. This claim is meritless. There is nothing in the trial court’s memorandum of decision that indicates that the trial court, in reaching its decision, looked beyond the information contained in the administrative record. To the contrary, our review of the record reveals that the trial court relied solely on facts found by the hearing officer, which in turn had been based on the claimant’s own testimony at the public hearing. This claim of impropriety has no evidentiary basis.

The judgment is affirmed.

In this opinion CALLAHAN, NORCOTT and KATZ, Js., concurred.

BERDON, J.,

dissenting. The court continues to read narrowly the legislative grant of jurisdiction to the commission on human rights and opportunities (CHRO). See Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 653 A.2d 782 (1995); Fenn Mfg. Co. v. Commission on Human Rights & Opportunities, 232 Conn. 117, 652 A.2d 1011 (1995). Not only am I unable to agree with the result reached by the court today, but I cannot accept its reasoning or its implicit rejection of the public policy concerns underlying today’s decision that the CHRO does not have jurisdiction to award compensatory damages in this case.

To begin, a review of the CHRO’s statutory scheme must consider its beneficent purposes. By enacting the statutes under title 46a, Connecticut’s human rights laws, the legislature set out not only to prevent impermissible discrimination, but also to compensate, as nearly as possible, the victims of discrimination. As part of title 46a, the Connecticut Fair Employment Practices Act (act); General Statutes § 46a-51 et seq.; was enacted to eliminate discriminatory practices from the workplace. As such, the act is composed of remedial statutes, which are to “be construed liberally to effectuate their beneficent purposes.” Civil Service Commission v. Trainor, 39 Conn. Sup. 528, 532, 466 A.2d 1203 (1983); see also Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995) (remedial statutes are to “be liberally construed in favor of those whom the legislature intended to benefit”). Indeed, the court in this case has failed to abide by this canon of statutory construction.

“[T]he victim of a discriminatory practice is to be accorded his [or her] rightful place in the employment scheme, that is, he [or she] has a right to be restored to the position he [or she] would have attained absent the unlawful discrimination. . . . Where prohibited discrimination is involved, the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” (Citation omitted; internal quotation marks omitted.) State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 478, 559 A.2d 1120 (1989).

“Read in its entirety, the [act] not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO.” Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985). “It is the CHRO that is charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be.” Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488, 503 A.2d 1151 (1986).

In this case, the CHRO awarded compensatory damages in the amount of $5000 for emotional distress suffered by the claimant, Kristine A. Jennings, as a result of the defendant Truelove and Maclean, Inc.’s discriminatory employment practices. Specifically, Jennings was found to have been constructively discharged because of her pregnancy. The majority’s reversal of the CHRO’s award of compensatory damages, holding that the CHRO did not have jurisdiction to award such relief, is predicated on the assumption that General Statutes § 46a-58 (a) “does not encompass claims of discriminatory employment practices that fall within the purview of [General Statutes] § 46a-60.”

This conclusion, however, ignores the plain language of § 46a-58 (a), which provides in relevant part: “It shall be a discriminatory practice in violation of this section for any person to subject . . . any other person to the deprivation of any rights . . . protected by the consti tution or laws of this state ... on account of religion, national origin, alienage, color, race, sex, blindness or physical disability.” (Emphasis added.) Section 46a-58 (a) prohibits, as an illegal discriminatory practice, the deprivation of any right provided by statute or the constitution due to one of the factors enumerated above. Consequently, § 46a-58 (a) requires, by its own terms, another provision, be it statutory or constitutional, before it becomes operative. In other words, § 46a-58 (a) is triggered by a violation of an individual’s rights, as provided for in another statutory or constitutional provision, on the basis of one or more of the following factors: religion, national origin, alienage, color, race, sex, blindness or physical disability.

In this case, the statute that triggered the protection of § 46a-58 (a) was § 46a-60. Pursuant to § 46a-60, individuals are guaranteed a workplace and terms, conditions and privileges of employment that are free of impermissible discrimination due to, inter alia, their sex. Because § 46a-60 prohibits employment discrimination on the basis of sex, and sex is one of the factors enumerated under § 46a-58 (a), the CHRO has jurisdiction to award remedies that are available under either statute. I note that there are some forms of discrimination that are prohibited under § 46a-60, such as discrimination due to age or marital status, that are not within the purview of § 46a-58 (a) and that, therefore, § 46a-58 would be inapplicable.

The majority asserts that General Statutes § 46a-86, which sets forth the remedies available to a victim of discrimination, supports its interpretation of § 46a-58.1 disagree. By its own terms, § 46a-86 (b), which provides the remedies for violations of § 46a-60, is not exclusive. Similarly, § 46a-86 (c), which provides the remedies for a violation of § 46a-58, is not exclusive.

The majority also rests its opinion upon a partially quoted canon of statutory construction set forth in Gaynor v. Union Trust Co., 216 Conn. 458, 476-77, 582 A.2d 190 (1990). The complete canon stated in Gaynor is as follows: “It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id. It is fundamental that “when two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is areasonable field of operation for each statute [that] does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect.” (Internal quotation marks omitted.) Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988). In other words, only if a specific statutory provision is inconsistent with a general provision will the specific provision be given exclusivity. Sections 46a-58 (a) and 46a-60, however, are not inconsistent and both can be applied harmoniously. In this case, the claimant has suffered an injury for which both provisions provide remedies that complement each other and that together provide comprehensive relief.

Moreover, the legislative history supports the CHRO’s position that it has jurisdiction to award compensatory damages for emotional distress caused by discriminatory employment practices on the basis of sex. This history indicates that § 46a-58 (a) (formerly § 53-34) was intended to have broad application. Originally, the CHRO did not have jurisdiction to enforce § 46a-58 (a). 18 H.R. Proc., Pt. 10, 1975 Sess., pp. 4808-4810. In 1971, the General Assembly attempted to give the CHRO investigative and enforcement powers over § 46a-58 (a) complaints by passing Senate Bill No. 1772, but then Governor Thomas J. Meskill vetoed that attempt and stated that “[t]he subject matter of [§ 46a-58 (a)] is so broad and general as to provide imprecise direction for an executive commission. Such broad subject matter is more properly relegated to the courts who now have authority in this area.” Conn. Senate Journal, Pt. 3, Spec. Sess., August 1971, p. 74. In 1973, a similar bill, House Bill No. 8400, was passed and was again vetoed by Governor Meskill.

In 1975, however, No. 75-462 of the 1975 Public Acts was adopted to allow the CHRO to investigate and enforce complaints raised under § 46a-58 (a). Representative Thomas C. Clark stated that the “[b]ill . . . would extend the powers of the Human Rights and Opportunities Commission to enforce [§ 46a-58 (a)] of the Connecticut General Statutes, which is the Civil Rights Statute of the State of Connecticut . . . which prohibits discrimination or deprivation of rights on account of alienage, color, race or sex. . . . [Presently] the Commission has a right to receive complaints . . . for [a] violation of [§ 46a-58 (a)], but it does not have the right to prosecute those [complaints] to completion under its own laws. This Bill will enable them to do so.” 18 H.R. Proc., supra, pp. 4808-4809.

Finally, “it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 372, 627 A.2d 1296 (1993). As Judge Maloney of the Superior Court noted in a 1994 memorandum of decision in which he addressed this issue: “The CHRO . . . cites an unbroken string of (its administrative) decisions going back 14 years in which it has awarded damages for emotional distress in employment discrimination cases . . . .” (Emphasis added; internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights & Opportunities, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV920299985 (January 31, 1994).

Therefore, I would hold that the CHRO has jurisdiction to award compensatory damages, pursuant to §§ 46a-58 (a) and 46a-86 (c), for emotional distress in order to compensate the claimant for her emotional injury.

Accordingly, I dissent.

       Robert J. Haggerty, the commission’s hearing officer, who was also named as a defendant, is not involved in this appeal. References to the defendant are to Truelove and Maclean, Inc.

       Although the defendant maintained a disability insurance policy that provided for maternity and pregnancy disability benefits, no representative of the defendant explained to the claimant whether such benefits were available to her.

       General Statutes § 46a-58 provides in relevant part: “Deprivation of rights. Desecration of property. Cross burning. Penalty, (a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability. ...”
      General Statutes § 46a-60 provides in relevant part: “Discriminatory employment practices prohibited, (a) It shall be a discriminatory practice in violation of this section:
      “(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness ....
      “(7) For an employer, by himself or his agent: (A) To terminate a woman’s employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so ... .”

       General Statutes § 46a-86 provides in relevant part: “Complaint: Determination; orders; dismissal, (a) If, upon all the evidence presented at the hearing conducted pursuant to section 46a-84, the presiding officer finds that a respondent has engaged in any discriminatory practice, the presiding officer shall state his findings of fact and shall issue and file with the commission and cause to be served on the respondent an order requiring the respondent to cease and desist from the discriminatory practice and further requiring the respondent to take such affirmative action as in the judgment of the presiding officer will effectuate the purpose of this chapter.
      “(b) In addition to any other action taken hereunder, upon a finding of a discriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, provided, liability for back pay shall not accrue from a date more than two years prior to the filing or issuance of the complaint and, provided further, interim earnings, including unemployment compensation and welfare assistance or amounts which could have been earned with reasonable diligence on the part of the person to whom back pay is awarded shall be deducted from the amount of back pay to which such person is otherwise entitled. The amount of any such deduction for interim unemployment compensation or welfare assistance shall be paid by the respondent to the commission which shall transfer such amount to the appropriate state or local agency.
      “(c) In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58, 46a-59, 46a-64, 46a-64c, 46a-81b, 46a-81d or 46a-81e, the presiding officer shall determine the damage suffered by the complainant, which damage shall include, but not be limited to, the expense incurred by the complainant for obtaining alternate housing or space, storage of goods and effects, moving costs and other costs actually incurred by him as a result of such discriminatory practice and shall allow reasonable attorney’s fees and costs. . . .”

       General Statutes § 4-183 provides in relevant part: “Appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .”
      General Statutes § 46a-94a provides in relevant part: “Appeal to superior court from order of presiding officer, (a) The Commission on Human Rights and Opportunities, any respondent or any complainant aggrieved by a final order of a presiding officer . . . may appeal therefrom in accordance with section 4-183, except venue for such appeal shall be in the judicial district in which the discriminatory practice is alleged to have occurred or in the judicial district in which such person resides or transacts business. . . .”

       In response to the defendant’s motion, the trial court modified the hearing officer’s award by vacating the award of damages for emotional distress in light of this court’s decisions in Fenn Mfg. Co. v. Commission on Human Rights & Opportunities, 232 Conn. 117, 652 A.2d 1011 (1995), and Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 653 A.2d 782 (1995). These decisions postdated the conclusion of the administrative proceedings in this case.
      Although the defendant appealed from the decision of the hearing officer on its merits, the trial court dismissed that appeal as untimely.

       The commission raises the first claim, and the claimant raises the remaining three claims.

       In Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 116, 653 A.2d 782 (1995), we expressly left undecided whether a violation of employment laws is also a violation of § 46a-58 (a).

       See footnote 3.

       See footnote 4.

       The commission also contends that the trial court improperly refused to consider whether the claimant was entitled to interest on the award she received. We disagree. The trial court concluded that the issue of an award of interest was so inadequately briefed by the commission that the issue had been abandoned. Our review of the commission’s brief to the trial court discloses that it offered no meaningful argument or accompanying analysis as to the issue of an award of interest. “Where an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived.” Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995). Although the commission provided a relatively more complete discussion of the issue in its reply brief, discussion of an issue in a reply brief does not cure the inadequacy of the original brief. Cf. Commissioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991) (“[a]lthough the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error” [internal quotation marks omitted]). We thus conclude that the trial court properly declined to address the issue of an award of interest.

       See footnote 3.

       According to our research, the legislative history of §§ 46a-58 and 46a-60 sheds no light on the issue of whether claims of discriminatory employment practices that fall within the scope of § 46a-60 may be brought under § 46a-68 (a).

       See footnote 4.

       In light of our resolution of the commission’s claim, we need not decide in this case whether damages for emotional distress may be awarded for a violation of § 46a-58 (a). See General Statutes § 46a-86 (c).

       See footnote 4.

       Our review of the applicable legislative history fails to inform the issue of whether the legislature intended to mandate awards of reinstatement and back pay in § 46a-86 (b).

       The claimant contends that the trial court improperly shifted the burden of proof to her and the commission on the issue of whether the hearing officer should have granted an award of reinstatement and back pay. We disagree. The claimant offers no evidence to support her claim, and our review of the record discloses no impropriety on the part of the trial court in this respect. As the plaintiffs in the administrative appeal from the hearing officer’s decision, the commission and the claimant had the burden of establishing that the hearing officer’s refusal to award reinstatement and back pay was improper. See General Statutes § 4-183 (j). The trial court, acting in an appellate capacity, properly reviewed each of the claims raised by the commission and the claimant in light of this governing principle.

       The claimant contends that § 46a-86 (b) requires the hearing officer to order reimbursement to the department of labor for unemployment compensation benefits received by her for the period during which she was unemployed. Because any order of reimbursement pursuant to § 46a-86 (b) is premised on an award of back pay; see General Statutes § 46a-86 (b); and because the hearing officer’s denial of back pay was not improper, he was not required to order reimbursement to the department of labor.

       I was not a member of the panels of Supreme Court justices that decided these cases.

       Discrimination on the basis of sex “includes but is not limited to discrimination related to pregnancy . . . .” General Statutes § 46a-51 (17).

       Jennings alleged a violation of § 46a-58 (a) in her complaint to the CHRO.

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . .

       General Statutes § 46a-86 (b) expressly provides in relevant part: “In addition to any other action taken hereunder, upon afinding of adiscriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization . . . .” (Emphasis added.)

       General Statutes § 46a-86 (c) provides in relevant part: “In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58 . . . the presiding officer shad determine the damage suffered by the complainant . . . and shall allow reasonable attorney’s fees.” (Emphasis added.) Accordingly, an individual, such as Jennings, who is discriminated against in violation of § 46a-58 and who suffers emotional distress, may be awarded compensatory damages pursuant to § 46a-86 (c).


source: Caselaw Access Project

author: PALMER, J. BERDON, J.,

license: Public Domain

text:
    TOWN OF FAIRFIELD ET AL. v. CONNECTICUT SITING COUNCIL ET AL.
    (15286)
    (15287)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued March 19
    decision released July 30, 1996

      Mark F. Kohler, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant in Docket No. 15286 (named defendant).

      Anthony M. Fitzgerald, for the appellants in Docket No. 15287 (defendant Connecticut Light and Power Company et al.).

      Linda M. Guliuzza, for the appellees (plaintiff Alliance to Limit Electromagnetic Radiation Today et al.).
   PALMER, J.

The sole issue raised by this administrative appeal is whether the plaintiffs have a right of appeal from a decision of the named defendant, Connecticut Siting Council (council), denying their motions for a modification pursuant to General Statutes § 4-181a (b) of the council’s prior final decision granting to the defendants Connecticut Light and Power Company and United Illuminating Company (utilities) a certificate of environmental compatibility and public need (certificate) for the construction of a power line. The trial court, Fuller, J., dismissed the plaintiffs’ appeal, concluding that because the council’s decision on the plaintiffs’ motions under § 4-181a (b) was not a final decision within the meaning of General Statutes § 4-166 (3), it was not appealable under General Statutes § 4-183 (a). The plaintiffs appealed to the Appellate Court, which reversed the judgment of the trial court. Fairfield v. Connecticut Siting Council, 37 Conn. App. 653, 656 A.2d 1067 (1995). We granted the utilities’ petition for certification, and now reverse the judgment of the Appellate Court.

The relevant facts are set forth in the opinion of the Appellate Court. “In January, 1991, the [utilities] applied to the defendant council for a certificate . . . for the construction of an electric transmission line that would be 15.3 miles in length and extend from Bridgeport to Norwalk within an existing railroad right-of-way. The application was served on all appropriate local and state officials and the hearing date was noticed in the local newspapers. A six hour contested hearing was held in the Westport town hall on April 29,1991. On September 18,1991, the council approved the application pursuant to General Statutes § 16-50k and limited conditions of construction and operation of the proposed transmission line. No appeal was taken from this decision. The utilities have already completed a substantial portion of the project in reliance on the certificate granted by the council.

“Subsequent to September 18,1991, and prior to May 6,1993, numerous motions and requests seeking to open the granting of the certificate and concerning stop work orders and investigations into alternatives to the proposed construction were submitted to the council. Without holding a hearing, the council denied the motions and requests in a written decision dated May 6, 1993.

“The council found that ‘the subject matter of all motions, requests, and contentions to reevaluate this case and reinvestigate issues, has already been carefully considered by the Council in deciding this application . . . on September 18, 1991. No one has introduced new information or facts that were not available at that time.

“ ‘Because of a legal expectation of finality of a decision, we must find a compelling reason to reverse our decision or reopen this proceeding. After considering each and every motion, request and contention, we find no such compelling reason.’

“Subsequent to the May 6,1993 decision, new motions for modification under General Statutes § 4-181a (b) were filed with the council. These motions claimed that changed conditions, new information, and new technology have occurred since the council’s September 18, 1991 decision.

“On June 29, 1993, the council announced that it would conduct public hearings on July 13, 1993, on the motions to open and reconsider the construction of the facility. Prior to the hearing, the council solicited written comments and consultation from the state departments of the environmental protection, health services, public utility control, economic development and transportation, and the state council on environmental quality and the state office of policy and management. The hearing on July 13, 1993, was limited to the taking of oral statements from the public and parties. The council permitted the submission of evidence and briefs, which were to be filed at the council’s office on or before July 20, 1993. On July 30, 1993, the council issued a written opinion.

“It stated in part: ‘In deciding these motions and requests to reopen, we acted under General Statutes § 4-181a (b) which allows us to reverse or modify a final decision on a showing of changed conditions. . . . In conclusion, we find that the subject matter of all motions, requests, and contentions to re-evaluate this case and reinvestigate issues, has already been carefully considered by the Council in deciding this application two years ago, on September 18, 1991. We know of no new information or facts that were not available at that time that would compel us to reopen this case. We have not identified any unknown or unforeseen events or any relevant circumstances that would compel us to reopen this case. There have been no scientific or technological breakthroughs that would have altered our analysis. Our analysis remains valid today and consistent with State law and State policy, including policy from the State Department of Public Health and Addiction Services and the Department of Environmental Protection.

“ ‘Because of a legal expectation of finality of a decision, we must find a showing of changed conditions or a compelling reason to reopen this proceeding. After considering each and every motion, request, and contention, we find no such changed conditions or compelling reasons.’

“Commissioner Paulann H. Sheets filed a six page dissenting opinion concluding that there were changed conditions and that a rehearing should take place. That rehearing she felt should reexamine the decision in light of the changed conditions and modify it appropriately if the evidence warranted.

“From the July 30 decision, the town of Fairfield, the Alliance to Limit Electromagnetic Radiation Today (A.L.E.R.T.), Ann Graney, Santo Piro, Christine Piro, Jennifer Lindine, Spencer Stout and David S. Parker appealed to the Superior Court alleging that the council, ‘[i]n denying the motions for revocation, reconsideration, amendment and/or modification, acted illegally, arbitrarily and in abuse of the discretion vested in it in that: a. its decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; b. it failed to adequately notice the public hearing held July 13, 1993, in violation of the federal and state constitutions and state statutory provisions; c. it failed to employ the procedures for contested cases, in violation of General Statutes § 4-181a (b); d. it considered the effect of ‘changed conditions’ in the absence of a full evidentiary hearing; e. it relied, in error, upon the comments of the department of public health and addiction services in rendering its decision; f. it failed to consider the project’s effects upon historic resources, aesthetics, the environment, property values and health; and g. it erred in denying party status to the plaintiffs, A.L.E.R.T., David S. Parker and Town of Fairfield, in violation of State Statutory provisions.’

“The council and the utilities then each filed a motion to dismiss. Each motion was based on the trial court’s lack of jurisdiction. The trial court granted each motion ruling that, in a hearing held under § 4-181a (b), there is no automatic right to an appeal and that, even though the council had held a hearing, it had not been required to do so under the statute and could have denied the motions without one. It further found that since no hearing was required by the statute, denial of the motions did not create the right to appeal and cited Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 629 A.2d 367 (1993).

“The trial court further found that motions for reconsideration, reversal or modification of any final decision are governed by the requirements for contested cases. General Statutes § 4-181a (b). The agency’s consideration of the motions was not a ‘contested case’ under § 4-166 (2) and, since no hearing was required, it was not an ‘agency determination in a contested case’ and not a ‘final decision’ under § 4-166 (3). As previously stated, the definition of ‘final decision’ includes ‘an agency decision made after reconsideration.’ (Emphasis added.) The ruling of an agency granting or denying a petition for reconsideration is, however, expressly excluded from the definition of ‘final decision’ in § 4-166 (3).” Fairfield v. Connecticut Siting Council, supra, 37 Conn. App. 655-59.

On appeal, the Appellate Court concluded, contrary to the determination of the trial court, that the council, in denying the plaintiffs’ request for a modification of its original decision, had considered the merits of the plaintiffs’ motions, thereby giving rise to a proceeding in which the council was required, under § 4-181a (b), to follow the procedure mandated by the Uniform Administrative Procedure Act (UAPA); General Statutes § 4-166 et seq.; for contested cases. The Appellate Court further concluded that the council’s denial of the plaintiffs’ motions constituted an appealable final decision under § 4-166 (3) (A) because the council had conducted a properly noticed hearing on the motions under § 4-181a (b). This certified appeal followed.

The defendants contend that the trial court properly dismissed the plaintiffs’ appeal. The defendants argue that the council’s decision following the July 13, 1993 hearing was not an appealable final decision under the UAPA because the scope of the council’s review of the plaintiffs’ § 4-181a (b) motions was limited to a determination of whether to open and reconsider its earlier final decision. The plaintiffs, on the other hand, contend that the Appellate Court properly concluded that the council had considered the merits of their request under § 4-181a (b) and, therefore, that the decision of the council constituted an “agency determination in a contested case” within the meaning of § 4-166 (3) (A). We agree with the defendants.

“There is no absolute right of appeal to the courts from a decision of an administrative agency.” Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993); see also Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 799; Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 154, 520 A.2d 186 (1987). “The appealability of an agency decision is governed by § 4-183 (a) of the UAPA, which provides [in part] that ‘[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section.’ . . . Accordingly, we have consistently held that the Superior Court has jurisdiction only over appeals from a ‘final decision’ of an administrative agency. See, e.g., State v. State Employees’ Review Board, 231 Conn. 391, 400 n.13, 650 A.2d 158 (1994); Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 811-12.” (Emphasis in original.) Derwin v. State Employees Retirement Commission, 234 Conn. 411, 418, 661 A.2d 1025 (1995). Under § 4-166 (3), the term “ ‘[f]inal decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration.” Finally, “[t]he test for determining contested case status has been well established and requires an inquiiy into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held.” (Internal quotation marks omitted.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 800-801.

The determination of whether an agency’s decision on a motion filed pursuant to § 4-181a (b) gives rise to a contested case hinges on whether the agency has conducted a proceeding “in which such . . . modification . . . is . . . considered.” General Statutes § 4-181a (b). Thus, as the parties agree, the proper characterization of the proceedings before the council depends upon whether the council actually considered and determined the plaintiffs’ motions on their merits. If the purpose of the hearing conducted by the council was not to decide the substantive issues raised in the plaintiffs’ request but, rather, merely to assist the council in ascertaining whether there was sufficient reason to entertain reconsideration of its prior decision, then the council has not made “an agency determination in a contested case.”

As a matter of statutory construction, the plaintiffs do not dispute the conclusion, predicated on the express language of § 4-181a (b), that a proceeding thereunder does not give rise to a contested case unless the agency decides the merits of the request for modification. It bears emphasis that this reading of the statute is buttressed by the terms of § 4-181a (a), which, in conjunction with § 4-166 (3); see footnote 3; prescribes the procedure to be followed by a party to a contested case who, within fifteen days of the rendering of a final decision by the agency, wishes to seek reconsideration of that decision. Those provisions, like those under § 4-181a (b), contemplate a two-step procedure for reconsideration requests. Under § 4-181a (a), a party may file a petition for reconsideration with the agency on one of three specified grounds. If the agency grants the request for reconsideration, the agency is then required to conduct additional proceedings “as may be necessary to render a decision modifying, affirming or reversing the final decision.” General Statutes § 4-181a (a). The preliminary decision of the agency whether to grant or deny the reconsideration petition is, however, specifically excluded from the definition of “final decision” under the UAPA and, consequently, that initial determination is not appealable to the Superior Court. General Statutes § 4-166 (3). An agency’s preliminary decision whether to entertain a petition under § 4-181a (b) is, for present purposes, in all material respects identical to an agency’s preliminary decision whether to entertain a petition for reconsideration under § 4-181a (a). Thus, as the trial court noted, there is no reason why, for purposes of appeal, a petition filed under subsection (b) of § 4-181a should be treated differently from a petition submitted under § 4-181a (a).

We now turn to the question of whether the hearing conducted by the council was held for the purpose of rendering a preliminary determination of whether to open its prior final decision, as the defendants claim, or, rather, to consider and decide the merits of the request for modification, as the plaintiffs claim. We agree with the defendants’ characterization of the council proceedings.

Our review of the record reveals that the July 13,1993 hearing was limited solely to the question of whether the plaintiffs had made a sufficient allegation of changed circumstances to warrant a further hearing by the council on the merits of the plaintiffs’ motions to open its prior final decision. In his opening statement at the hearing, the council chairman informed all those who were present that “[a]t this hearing, the Council will receive testimony on the technical and legal reasons to reopen this proceeding.” (Emphasis added.) The council, in its memorandum of decision, described the hearing as one in which “the Connecticut Siting Council . . . considered motions and requests to reopen, stop work, reconsider, revoke or amend the Certificate,” and concluded that “[w]e know of no new information or facts that were not available at that time that would compel us to reopen this case. . . . [W]e must find a showing of changed conditions or a compelling reason to reopen this proceeding. . . . [W]e find no such changed conditions or compelling reasons.” (Emphasis added.) The memorandum further stated that “[e]ven if [the council] were to reopen this proceeding at this time, such a reopening would not be productive because there is no new scientific or technical information that would help resolve this global issue.” (Emphasis added.) Even the dissenting council member who voted to grant the plaintiffs’ motions to open and reconsider the council’s prior final decision, stated that “[a]n evidentiary hearing should be convened pursuant to [§] 4-181a (b) to re-examine that decision in light of the changed conditions and to modify it appropriately if the evidence warrants.”

In light of these clear and consistent expressions of intent by the members of the council, we are persuaded, as was the trial court, that the hearing held by the council was conducted solely to determine whether reconsideration of its prior final decision was warranted. Once the council resolved that question against the plaintiffs, no further hearing was necessary. Accordingly, we conclude that the proceeding on the plaintiffs’ motions under § 4-181a (b) did not give rise to a contested case within the meaning of the UAPA and, therefore, that the council’s denial of the plaintiffs’ motions was not appealable to the Superior Court.

The Appellate Court found support for its contrary conclusion in the fact that the council had caused notice of the hearing to be served on interested parties and, in addition, had solicited comments from other agencies. That the agency conducted a hearing to consider the question of whether to open its prior final decision does not transform its review of the matter into a contested case. Indeed, as we have stated in a similar context; see, e.g., Derwin v. State Employees Retirement Commission, supra, 234 Conn. 423-24 n.14; to hold otherwise would discourage agencies from voluntarily holding hearings on petitions for modification under § 4-181a (b) lest the agency’s preliminary determination be deemed to create an appealable contested case.

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

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

BERDON, J.,

concurring. I agree with the majority that the Superior Court lacks jurisdiction to entertain an appeal by the plaintiff Alliance to Limit Electromagnetic Radiation Today (A.L.E.R.T.) from the decision of the defendant Connecticut Siting Council (council) not to reconsider its prior final decision. The council had previously issued a certificate of need and environmental compatibility to the defendants United Illuminating Company and Connecticut Light and Power Company (utilities) to construct a new 115kv transmission line between Bridgeport and Norwalk, notwithstanding concerns that exposure to electromagnetic frequency (EMF) could be a health hazard. I write separately, however, to highlight the significant consequences of the failure to grant courts jurisdiction in cases such as this where sensitive environmental issues are raised. Presently, the law furnishes no remedy to plaintiffs, such as A.L.E.R.T., to challenge an agency’s determination that there is insufficient evidence to reconsider a decision due to a change in circumstances that could substantially affect the health and welfare of the public.

In this case, the dissenting opinion filed by Paulann Sheets, one of the council commissioners, underscores the serious health and environmental issues involved in this question. Sheets observed that since the council’s original decision in 1991 authorizing the two utilities to construct electric power lines, evidence has come to light that EMF exposure could “pose a real [and] potentially lethal hazard” to the public, including a risk of cancer to children. In her opinion, Sheets noted that numerous reports had recently circulated regarding the dangers posed by electric power lines, and that concern surrounding this issue has prompted Congress to appropriate $65 million over the next five years to research the effects of EMFs. Sheets also cited a report issued by the Connecticut Interagency Task Force on EMF Exposures in March, 1993, that provided: “ ‘Based on the results from the Swedish studies linking childhood cancers to proximity of high voltage transmission lines, the Swedish government has acknowledged the link between cancer and EMF as real. Policy is currently under consideration that may result in the movement of electrical lines, schools, and daycare centers.’ ” Furthermore, Sheets noted that “[a] substantial perception by the public exists in the Bridgeport to Norwalk area along the new power line that hundreds of people are exposed to and are powerless to shield themselves or their children from a potentially lethal health hazard. This fearful perception can be in and of itself a hazard to health, with substantial adverse effects. This, too, is a ‘changed condition’ from September 18, 1991, [that] we can ameliorate by reopening [the case] . . . .”

Nevertheless, under the current state of the law, I am compelled to agree that the Superior Court does not have jurisdiction and that we must dismiss the appeal.

       The plaintiffs are Anne Graney, Jennifer Lindine, Santo Piro, Christine S. Piro, Stephen Stout, David S. Parker and the Alliance to Limit Electromagnetic Radiation Today. The town of Fairfield, a plaintiff in the trial court, did not appeal from the judgment rendered by that court and, accordingly, it is not a party to this appeal.

       General Statutes § 4-181a (b) provides: “On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency’s own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.”

       General Statutes § 4-166 provides in relevant part: “Definitions. As used in this chapter . . .
      “(2) ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168;
      “(3) ‘Final decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . .

       General Statutes § 4-183 provides in relevant part: “Appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal. . .

       We granted the defendants’ petitions for certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the decision of the Connecticut Siting Council was a final decision in a contested case under the Uniform Administrative Procedure Act?” Fairfield v. Connecticut Siting Council, 234 Conn. 911, 660 A.2d 355, 356 (1995).

       General Statutes § 16-50k provides in relevant part: “(a) Except as provided in subsection (b) of section 16-50z, no person shall exercise any right of eminent domain in contemplation of, commence the preparation of the site for, or commence the construction or supplying of a facility, or any modification of a facility, that may, as determined by the council, have a substantial adverse environmental effect, in the state without first having obtained a certificate of environmental compatibility and public need . . . issued with respect to such facility or modification by the council. Any facility with respect to which a certificate is required shall thereafter be built, maintained and operated in conformity with such certificate and any terms, limitations or conditions contained therein.”

       It is undisputed that the council conducted a hearing on the plaintiffs’ motions under § 4-181a (b). As we have previously stated, however, the hearing does not give rise to a contested case unless the holding of a hearing was statutorily required. See Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 811. The plaintiffs have not identified any statutory provision mandating a hearing on their motions. They claim, rather, that the matter is entitled to contested case status because, under § 4-181a (b), the council considered the merits of their motions in rejecting them.

       General Statutes § 4-181a provides in relevant part: “Contested cases. Reconsideration. Modification, (a) (1) Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition. (2) Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision. (3) If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming, or reversing the final decision. . . .”

       The mere fact that the councE heard testimony concerning changed conditions does not alter the fundamental purpose of the hearing as expressed by its members.

       There were also six individual plaintiffs involved in the appeal from the Superior Court. See footnote 1 of the majority opinion.

       See footnote 3.

       The full text of Sheets’ dissent provides as follows: “I respectfully dissent from the Council’s decision not to reopen [the council’s final decision granting the joint application of the utilities for a certificate (Docket No. 141)]. Changed conditions have occurred since September 18, 1991, when this Council issued a Certificate of Need and Environmental Compatibility to United Illuminating Company and Connecticut Light and Power Company to construct a new 115kv transmission line between Bridgeport and Norwalk, CT. There [are] sufficient reasons to believe these changes affect the validity of our decision, in particular the necessary finding that the effects of the construction ‘will not pose an undue hazard to persons on property along the area traversed by the line.’ An evidentiary hearing should be convened pursuant to [General Statutes §] 4-181a (b) to re-examine that decision in light of the changed conditions and to modify it appropriately if the evidence warrants. In particular, the evidentiary basis supporting the Council’s Best Management Practices for siting of facilities with electromagnetic frequency (‘EMF’) exposures should be received, subject to cross-examination, together with detailed information about the numbers and location of persons and public gathering facilities along the 115kv route; EMF from the new power line of the nature and extent of the exposure and means of reducing that exposure should be established and carried out under Council oversight. While it may be true, although I reserve judgment, that [General Statutes § 16-50k (d)] limits the scope of the modification of the decision which the Council may direct, a position urged by the Certificate Holders, we need not determine that issue as a precondition to holding the hearing which I envision.
      “Petitioners represented by Alliance to Limit Electro[m]agnetic Radiation (‘A.L.E.R.T.’) and others asked this Council, in effect, to reopen [Docket No. 141] for a complete rehearing. [A footnote to this paragraph provided as follows: ‘Several claim they lacked adequate notice of the project or the public hearing on April 29, 1991. While their determined efforts to be heard well after we granted the Certificate lend credence to this claim, in fact, I am satisfied that the Council complied with existing notice requirements. The unhappy fact, however, is that lawful procedure may not have served justice. As the Attorney General declared to this Council, “[F]aimess dictates that individuals faced with the prospect of a high voltage transmission line so near their properties be allowed to participate in the siting process.” (Letter, June 20,1993) If provision of statutorily required notice is insufficient to bring this prospect to the attention of the well prepared and confident residents of Fairfield, how much less adequate must it be for the hardpressed citizens of Bridgeport living along the railroad. It may be time to change that statute to afford personal or mailed notice to residences and schools that abut a proposed power line construction project. We can only interpret, not amend, a statute, however. Nevertheless, I note that while a hearing may not be reopened for lack of notice when all that is required for notice has been performed, as here, some part of this objection would be addressed if [Docket No. 141] is properly reconvened pursuant to Section 4-181a (b).’] There must be a compelling reason to disturb the finality of a decision like this one. The Intervenors should realize that the principle of finality which protects administrative or judicial decisions from modification for all but the most compelling reasons, e.g., public health and safety, also serves to protect the public against easy changes in decisions unwelcome to powerful vested interests, however rare such decisions may be. I do not believe the petitions before us show sufficient reason to overcome this restraint and revisit the issues of need for this power line or the impact on property, historic, and environmental values. Instead, I would re-open [Docket No. 141] in order to carry out this Council’s own Best Management Practices, adopted in February, 1993, particularly Paragraph 5, and to establish an evidentiary record supporting, implementing, or modifying those practices in light of the developing body of research and emerging governmental policies on electromagnetic field exposures from power lines and substations and adverse human health effects. In particular, we should receive evidence identifying the residences, schools, and other venues where the public, especially children, spend substantial time adjacent to or within a specified distance from the 115kv power line. The Council should direct the Certificate Holders to provide mailed notice to the exposed homes and facilities and establish a procedure, in consultation with the Council and A.L.E.R.T., for measuring current and projected EMF exposures to them, apprising them of these measurements, the factors involved, and the options available for reducing these EMF exposures.
      “The ‘Changed Conditions’ Warranting Re-Opening of [Docket No. 141] pursuant to Section 4-181a (b)
      “The following ‘changed conditions’ have persuaded me there is a need to reopen [Docket No. 141] for the limited purposes outlined here.
      “1) Since September 18, 1991, the date of our final decision in [Docket No. 141], the public has been exposed to a crescendo of reports in the mass and some elite organs of public opinion (print and electronic) that has led a significant part of that public to conclude, not unreasonably, that electric power lines in general and the Bridgeport/Norwalk line in particular pose a real, potentially lethal hazard to themselves and their children, (e.g., See A.L.E.R.T. Video, ‘National News Clíps-EMF’; Brodeur, Paul, 'The Cancer at Slater School,’ The New Yorker, (December 7, 1992); ‘Polarized Debate EMFs and Cancer,’ News & Comment, Science (December 11, 1992);
      “2) Research studies published since [Docket No. 141] on the issue of EMF risks to human health have not laid to rest the issue. If anything, the accumulating evidence, although inconsistent within and between studies, (e.g., the Karlinska Institute Swedish study, September, 1992, and the Danish Cancer Registry study, October, 1992) tends to strengthen, not disprove, the earlier claimed association between EMF exposure and adverse health effects previously identified by less well-designed studies. (See U5 below);
      “3) In October, 1992, Section 2118 of the Energy Policy Act authorized $65 million over the next five years ($6 million of which has already been appropriated) subject to a 50% ‘offset’ from non-federal sources, for EMF research and public communication under the [United States] Department of Energy [DOE] and National Institute for Environmental Health. DOE is mandated to ensure that no contributor of non-federal funds may influence the program. This massive federal initiative corroborates and reflects the trend toward increasing, rather than decreasing, scientific concern about possible EMF adverse health effects;
      “4) In February, 1993, the Council adopted our Best Management Practices to ensure that our decisions did not unnecessarily expose individuals to EMFs while we waited for scientific research and the community of scientists to reach more definitive conclusions about the reality of EMF effects from power lines and substations on health. We were prompted to this by ongoing review of research made available to us inside and outside of our dockets. Little of this material has been entered into the record of a hearing, subj ect to cross-examination. The Council’s position on this issue has thus significantly evolved since [the decision in another case] in 1988 when materials on EMF exposure from powder lines and health concerns were first brought to the Council’s attention and since [Docket No. 141], when the only testimony entered on the record, subject to cross-examination, was presented by the utilities. Regrettably, the evidentiary records of our proceedings to date very incompletely attest to this evolution and the basis for it;
      “5) In March, 1993, the Connecticut Interagency Task Force [on EMF Exposures] issued its Final Report following more than one year of investigation commissioned by the Connecticut Legislature in 1991. The Report adopted the conclusion reached in October, 1992, that ‘No definitive cause and effect relationship to EMF and an increase in health risk has been established .... The evidence available to us at this time is not sufficient to say whether or not a risk exists.’ (Letter to Senator Cornelius [P. O’Leary], October 13, 1992, adopted by the [1993] Task Force Report, p. 1-4) At the same time, the 1993 Report specifically dissented from the 1992 report of the Connecticut Academy of Science and Engineering which had ‘implied’ that ‘exposures to EMF may be dismissed as a potentially significant public health issue. Neither [the department of health services] nor the Task Force agree with this implication.’ (1993 Task Report, p. 2-2) Indeed, the Task Force clearly stated: ‘Although there is no scientific consensus either on the existence or the magnitude of health risks from EMF exposure, a growing body of epidemiologic evidence is emerging that confirms this association. Biologists are working concurrently to discover and describe possible mechanisms involved in the interaction between EMF and cells. Physiological changes have been documented; whether they may lead or contribute to pathological changes has yet to be determined.’ (1993 Task Report, p. 1-1)
      “Nevertheless, the Task Force elected not to recommend a public policy of ‘prudent avoidance,’ which provides that cost effective measures be taken by manufacturers of electric appliances and by power companies to reduce EMF exposure for the public. Instead, they adopted a policy of Voluntary Exposure Control. This is described as a ‘proactive program to inform the public of “EMF and factors to consider if concerned individuals decide to reduce their exposure.” ’ (p. 1-4) How these decisions to reduce exposure are to be made effectively in the context of involuntary exposure to EMFs from adjacent power lines or substations was not addressed. (Appendices E and F of the 1993 Task Force Report contain a compendium of summaries of past and current research and the broad range of scientific opinion from unequivocal disbelievers of adverse EMF health effects to convinced espousers of wide spread serious risk);
      “6) This same 1993 Task Force Report noted that, ‘Based on the results from the Swedish studies linking childhood cancers to proximity of high voltage transmission lines, the Swedish government has acknowledged the link between cancer and EMF as real. Policy is currently under consideration that may result in the movement of electrical lines, schools, and daycare centers.’ (1993 Task Force Report, p. 2-7, citing EMF Health and Safety Digest, November-December 1992, Vol. 10, No. 10, p. 5)
      “7) On July 20,1993, the State Department of Public Health and Addiction Services (‘DPHAS’) notified the Council that the Karlinska Institute Swedish study, on which A.L.E.R.T. partly relies to reopen [Docket No. 141], ‘has not established a definitive link between EMF and adverse effects and therefore is not sufficient reason to reopen a hearing on siting of an EMF source.’ The sentence immediately following clarifies this assertion. ‘[T]he DPHAS does not feel that any mandated changes to our electrical distribution system because of EMF are warranted are this time.’ (DPHAS Letter to Connecticut Siting Council dated July 20,1993) [A footnote to this paragraph provided as follows: T do not believe the DPHAS meant by this statement to oppose the Council’s Best Management Practices and our Decision and Order in [Docket No. 141], which call for adjustments in the new 115kv transmission power line that reduce the EMF exposures from 20% — 40% for 80% of the line.’] I do not interpret this letter to oppose a hearing of the type I envision, that is, to receive evidence updating the state of scientific opinion on the issues in question since we decided [Docket No. 141] and to carry out our Best Management Practices with respect to the residences and schools newly subject to EMF exposure as a result of the 115kv line between Bridgeport and Norwalk;
      “8) There is new evidence that dozens of households and a middle school will be exposed to the new EMF radiation who were not informed at the time of the 1991 hearing, whose numbers and location the utilities, although the Council pressed for them, declined to produce. This new evidence, suggesting that hundreds more residences will be affected than was understood at the hearing in 1991, also amounts to a ‘changed condition’ under Section 4-181a (b);
      “9) A substantial perception by the public exists in the Bridgeport to Norwalk area along the new power line that hundreds of people are exposed to and are powerless to shield themselves or their children from a potentially lethal health hazard. This fearful perception can be in and of itself a hazard to health, with substantial adverse effects. This, too, is a ‘changed condition’ from September 18, 1991, which we can ameliorate by reopening [Docket No. 141], for the limited but important practical purposes outlined in this proposal.
      “The Council Has Applied the Wrong Standard of Proof
      “The hardest part for the Council in addressing the petitions to reopen or not [Docket No. 141] is the inconclusive state of scientific opinion about the hazards presented by extremely low level EMF, coupled with two other facts the Interagency Task Force considered and rejected adopting the policy of ‘prudent avoidance’ while this uncertainty persists and this Council’s own Decision and Order [in Docket No. 141], which requires measures that ‘prudently avoid’ unnecessary EMF exposures. Quasi-judicial/quasi-policy bodies such as the Council answer to a lower standard of proof than do scientists. In law, the analogy is to the difference between ‘preponderance of the evidence’ and ‘clear and convincing evidence’ for civil matters and ‘proof-beyond a reasonable doubt’ for criminal convictions. Scientists require evidence to pass something akin to the criminal standard in order to achieve their consensus. This Council is bound by law to act only on the basis of ‘substantial (qualified) evidence’ which, however, generally need not be ‘clear and convincing,’ let alone ‘beyond a reasonable doubt.’ Where, as here, the Council’s decision continues to countenance the uncertain by undisposed of involuntary health and safety risks of the 115kv line without a procedure for further, even minimal abatement, it is adhering to the scientific standard. I respectfully submit it does so in error. The Task Force’s ambivalent position also reflects operation of the scientific standard and therefore should not be dispositive. The Decision and Order in [Docket No. 141] reflected the proper standard in 1991 but in adhering exclusively to it now, under the changed circumstances, the Council has effectively applied the inapplicable scientific standard and in so doing has misinterpreted our statutory mandate to avoid imposing an 'undue hazard’ on the public.
      “In conclusion, I trust [that] the public recognizes the concern of this Council for the health and safety of the public, evinced clearly in the protective constraints of Decision and Order of [Docket No. 141], with which the utilities have cooperated, including mandatory compliance with any new federal or state EMF standards. I voted for the Certificate in September, 1991, despite the troubling preliminary evidence of a link between low level EMF compared with 1988-1989, because of its uncertainty, in reliance on these features of the Decision and Order. Changed conditions as discussed above now require something more. At a minimum they require that the affected residences and schools along the Bridgeport to Norwalk new 115kv line be accorded at least additional informational protections pursuant to our 1993 Best Management Practices and such other measures as may be shown to be needed after a full evidentiary hearing. To the object that this Docket is not the forum to achieve this purpose, which I believe to be shared by all Council members, I must ask, ‘If not now, when?’ Moreover, if reopening [Docket No. 141] has implications for households and schools aijjacent to other electric power lines in the state, then so be it. Associated costs would clearly fall within the scope of prudent expenses and investment by the utilities, includable as such in their rates.” (Emphasis in original.)