author: BORDEN, J. MCDONALD, C. J., KATZ, J.,

text:
    TOWN OF GROTON v. UNITED STEELWORKERS OF AMERICA
    (SC 16164)
    McDonald, G. J., and Borden, Norcott, Katz, Palmer, Sullivan and Vertefeuille, Js.

      {One justice concurring separately; three justices dissenting in one dissenting opinion)
    Argued November 4, 1999
    officially released August 8, 2000

      Thomas W. Meiklejohn, for the appellant (defendant).

      Susan M. Phillips, with whom was Harry E. Calmar, for the appellee (plaintiff).
   Opinion

BORDEN, J.

The dispositive issue in this appeal is whether an arbitral award, which reinstated to employment an employee who had been convicted of embezzlement of his employer’s funds following a plea of nolo contendere, violates public policy. The defendant union, United Steelworkers of America, appeals from the judgment of the trial court in favor of the plaintiff, the town of Groton, vacating on public policy grounds an arbitration award that had reinstated the employment of David Warren, whom the plaintiff had discharged following his conviction of embezzlement based upon his plea of nolo contendere. The defendant claims that the trial court improperly applied the “public policy” exception to the general rule of deference to arbitration awards. We disagree and, accordingly, we affirm the trial court’s judgment.

Pursuant to an unrestricted submission, the arbitrator ruled that Warren had been discharged from his employment without just cause in violation of the governing collective bargaining agreement, and ordered him reinstated with limited back pay. The plaintiff filed an application in the trial court to vacate the award, and the defendant filed a cross application to confirm the award. The trial court determined that the award was in violation of public policy, and rendered judgment granting the plaintiffs application to vacate and denying the defendant’s application to confirm. This appeal followed.

The facts and procedural histoiy, as disclosed by the detailed award of the arbitrator, are undisputed. Warren was employed by the plaintiff as a weighmaster at the town landfill until April 14, 1997, when he was discharged. His duties included selling daily landfill permits to town residents, who would pay him for the permits. He was responsible for accounting for the permits that he sold and turning the money received over to the plaintiff.

On November 20, 1996, Warren was charged by the Groton police with two counts of larceny by embezzlement in the sixth degree in violation of General Statutes § 53a-119 (l), and General Statutes § 53a-125b, and one count of violating a Groton town ordinance. These charges arose out of allegations that Warren had taken money for permits and kept it for himself, rather than turning it in to the plaintiff. On November 22, 1996, the police notified Warren’s supervisor of his arrest and, in response, the supervisor transferred Warren temporarily to the highway division and notified him that “[o]nce court action is final, we will review its findings and take any disciplinary action, as appropriate, which may include action up to and including employment termination.”

On December 4, 1996, Warren’s criminal defense attorney and the state’s attorney reached a plea bargain pursuant to which the state would drop one of the larceny counts and the municipal ordinance count, Warren would plead nolo contendere to the remaining larceny count, and the state would recommend a fine of $85 plus $15 in court costs. Warren agreed to this plea bargain because contesting the charges at trial would cost him $5000 in legal fees, representing a significant percentage of his gross annual salary of approximately $35,000 and a larger percentage of his net annual salary. Warren thereupon entered a plea of nolo contendere to the larceny count, and the trial court rendered a judgment of conviction thereon and sentenced him according to the plea bargain.

The next day, Warren’s supervisor contacted the clerk of the court and learned of Warren’s conviction. There then ensued a lengthy series of meetings among the supervisor, Warren and his union representative. Ultimately, on April 14, 1997, the plaintiff terminated Warren’s employment.

The defendant filed a grievance on Warren’s behalf challenging the termination. Upon the plaintiffs denial of the grievance, it was submitted to arbitration pursuant to the collective bargaining agreement between the plaintiff and the defendant. The collective bargaining agreement provided in relevant part: “All discharges, demotions, and/or suspensions will be for just cause only . . . .” The plaintiff’s personnel mies provided for possible disciplinary action for “employee misconduct,” two examples of which provided as follows: “(a) Conviction of a felony or misdemeanor arising out of the performance of duty or within the scope of employment which may affect the performance of duty”; and “(h) Misappropriation, destruction, theft or conversion of municipal property or equipment.” Because the parties were unable to agree on how to state the issues submitted to the arbitrator, he framed the relevant issue as follows: “Whether the [plaintiff] had just cause under Article XVIII of the collective bargaining agreement in terminating David Warren for the following reasons: (1) his conviction of a crime arising out of his employment .... If not, what shall the remedy be?” The plaintiff relied exclusively on subsection (a) of § 1 of personnel rule 10, namely, the fact of Warren’s conviction of larceny in the sixth degree by embezzlement following charges that he had stolen funds that he was obligated to turn in to the plaintiff. The plaintiff, however, did not rely on subsection (h) of § 1 of personnel rule 10. In other words, the plaintiff did not seek to establish by independent evidence that Warren had in fad engaged in the larcenous conduct.

The arbitrator determined that, under the circumstances of the case, the fact of the conviction did not establish just cause for Warren’s termination. The arbitrator first noted his agreement with the proposition that “[i]f Warren in fact sold daily landfill permits and intentionally pocketed the money instead of turning it over to the [plaintiff], there would be just cause to discharge Warren from his employment. Discharge would be justified even if Warren had done so on only a single occasion. Any theft of [t] own funds for which an employee is responsible constitutes such an egregious breach of trust that summary discharge clearly would be justified. There would be no need or requirement to apply principles of progressive discipline.”

The arbitrator noted, however, that the plaintiff had relied, not on any independent proof that Warren had in fact stolen such funds, but solely on the fact of conviction under the circumstances disclosed by the record. Those circumstances were that Warren had neither pleaded guilty to the crime charged nor been found guilty after a trial. Instead, he had been convicted after a plea of nolo contendere pursuant to the plea bargain.

The arbitrator then turned to the legal effect of a plea of nolo contendere. In this regard, the arbitrator read this court’s decision in Lawrence v. Kozlowski, 171 Conn. 705, 711-12 n.4, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977), to hold that neither a plea of nolo contendere, nor a conviction based upon such a plea, can be used in a subsequent proceeding to establish (1) an admission of guilt, or (2) a res judicata effect regarding guilt. The arbitrator also noted this court’s statements in Lawrence v. Kozlowski, supra, 711-12 n.4, citing C. McCormick, Evidence (2d Ed. 1972) § 265, p. 633, that pleas of nolo contendere may be entered for reasons of convenience and without much regard to guilt and collateral consequences, and are often entered with the expectation that they will not be used against the accused in subsequent proceedings. Thus, the arbitrator, quoting from Lawrence v. Kozlowski, supra, 711-12 n.4, concluded that, although such a plea might be regarded as a tacit admission of guilt, because of their inconclusive and ambiguous nature, the plea and conviction “ ‘should be given no currency beyond the particular case in which it was entered.’ ”

Applying these principles to the facts before him, the arbitrator noted that Warren had entered his plea with the expectation that it would not be used against him in subsequent proceedings. The arbitrator also noted that Warren had compelling reasons of convenience to enter such a plea, namely, the significant portion of his gross and net annual income that it would have cost him to go to trial, balanced against the modest fine and the advice of his attorney that he was not admitting any guilt. On the basis of these reasons, the arbitrator concluded that Warren’s conviction of a crime arising out of his employment did not constitute just cause to terminate him under the collective bargaining agreement.

The plaintiff applied to the trial court to vacate the award, and the defendant cross applied to confirm the award. In its application to vacate, the plaintiff claimed that the award violated clear public policy. The trial court determined that the arbitrator’s award violated public policy. Accordingly, the court rendered judgment vacating the award.

The defendant claims that the trial court misapplied the public policy exception to the general rule of deference to an arbitrator’s award made pursuant to an unrestricted submission. The defendant argues that, because Warren’s conviction was based on a plea of nolo contendere, the conviction: (1) cannot be used to establish that he in fact embezzled town funds; and (2) cannot be given any other legal effect. Thus, the defendant contends that “[tjhere is no conflict with public policy unless the award approves some conduct which offends public policy. The award cannot be read to approve of theft unless [Warren] is actually guilty of theft. There has been no finding of guilt which can be relied upon in this proceeding. Therefore, the award does not conflict with public policy.” (Emphasis in original.) We disagree.

The well established general rule is that “[w]hen the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987). When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). Furthermore, in applying this general rule of deference to an arbitrator’s award, “[e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings.” (Internal quotation marks omitted.) Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 119, 676 A.2d 825 (1996).

In Garrity v. McCaskey, supra, 223 Conn. 6, however, we also recognized two narrow common-law bases, as opposed to statutory bases under General Statutes § 52-418, for vacating an award rendered pursuant to an unrestricted submission: (1) the award rules on the constitutionality of a statute; and (2) the award violates clear public policy. Only the second ground is involved in the present case.

We recently held that, when a challenge to a voluntary arbitration award rendered pursuant to an unrestricted submission raises a legitimate and colorable claim of violation of public policy, the question of whether the award violates public policy requires de novo judicial review. Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000). This challenge raises such a claim. We therefore undertake de novo review of the award.

“The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy.” Garrity v. McCaskey, supra, 223 Conn. 7. A challenge that an award is in contravention of public policy “is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. Stamford v. Stamford Police Assn., [14 Conn. App. 257, 259, 540 A.2d 400 (1988)]; Board of Trustees v. Federation of Technical College Teachers, [179 Conn. 184, 195, 425 A.2d 1247 (1979)]. When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. Board of Trustees v. Federation of Technical College Teachers, supra [195]. Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. [United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 43, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987)]; see W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) .... New Haven v. AFSCME, Council 15, Local 530, supra, [208 Conn.] 417. The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. Id. Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the [arbitrator’s] award clearly violates an established public policy mandate.” (Internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339-40, 555 A.2d 406 (1989). Applying the appropriate scope of review, we conclude that, based upon the undisputed facts of the present case, the award violated the clear public policy against embezzlement, and that this policy encompasses the policy that an employer may not be required to reinstate the employment of one who has been convicted of embezzlement of his employer’s funds, whether that conviction follows a trial, a guilty plea, or a plea of nolo contendere.

We agree with the arbitrator, and the defendant does not dispute, that if Warren’s conviction for embezzlement of his employer’s funds had followed either a guilty plea or a trial, the employer would have been justified in imposing appropriate discipline, including termination, and an arbitral award requiring his reinstatement to employment would have violated clear public policy. See, e.g., Board of Education v. Local 566, Council 4, AFSCME, 43 Conn. App. 499, 500-501, 683 A.2d 1036 (1996), cert. denied, 239 Conn. 957, 688 A.2d 327 (1997) (where grievant had pleaded guilty to and been convicted of fraudulently diverting union funds, award reinstating him to job with responsibility for publicly owned property violated public policy); see also State v. Council 4, AFSCME, 27 Conn. App. 635, 641, 608 A.2d 718 (1992) (where grievant admittedly had misused state funds by cashing falsely generated public assistance checks, award of reinstatement to employment violated public policy). In either instance, the record would be sufficient to establish that the employee had in fact stolen from his employer. The guilty plea would constitute an admission of guilt; see Lawrence v. Kozlowski, supra, 171 Conn. 711 n.4; and the conviction after trial would be sufficient to establish the fact of the theft, under established principles of issue preclusion. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296-307, 596 A.2d 414 (1991). In either of those instances, the public policy against theft also would include the policy that an employer should not be required to retain in a position of financial trust an employee who has been established to have stolen.

The question posed by this appeal is whether that calculus is altered by the fact that the conviction is based, not upon a plea of guilty or a trial, but upon a plea of nolo contendere. We conclude that an arbitral award that requires the employer to reinstate an employee who has been terminated following his conviction, upon the basis of such a plea, of embezzling the employer’s funds, violates public policy.

We agree with the plaintiff that the public policy against embezzlement encompasses the policy that an employer should not be compelled to reinstate an employee who has been convicted of embezzling the employer’s funds, irrespective of whether the conviction followed a trial, a guilty plea or a nolo contendere plea. The employment context ordinarily involves a number of legitimate expectations on the part of the employer that such a conviction is likely to undermine, irrespective of the legal underpinning of the conviction. For example, the employer is entitled to expect that he be able to trust an employee who is in a position of financial responsibility. The employer is also entitled to expect that his other employees will be able to trust their coemployees, and that those other employees will feel sufficiently deterred from engaging in embezzlement. Finally, the employer is entitled to expect that members of the public who are required to deal with his employees will feel that they are being served in an honest and trustworthy manner. All of these legitimate expectations are severely threatened by a requirement that the employer reinstate an employee who has been convicted of embezzling the employer’s funds. That severe threat, moreover, is not removed or significantly ameliorated by the fact that the conviction rests upon a plea of nolo contendere, as opposed to a plea of guilty or a trial.

Although we have stated in the context of litigation and administrative rulings that a prior conviction based upon a nolo contendere plea may have no currency beyond the case in which it was rendered; Lawrence v. Kozlowski, supra, 171 Conn. 711-12 n.4; such a conviction does have the weight of a final adjudication of guilt and does share at least some characteristics of a guilty plea. “A plea of nolo contendere has the same legal effect as a plea of guilty on all further proceedings within the indictment. North Carolina v. Alford, 400 U.S. 25, 35-36 n.8, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); Lawrence v. Kozlowski, [supra, 705]; see State v. Godek, 182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case. 4 Wigmore, Evidence (Chadboum Rev. 1972) § 1066 (2), p. 81; Lenvin & Meyers, ‘Nolo Contendere: Its Nature and Implications,’ 51 Yale L.J. 1255 (1942). State v. Martin, 197 Conn. 17, 20-21 n.7, 495 A.2d 1028 (1985). It is clear, however, that a nolo contendere plea also constitutes a waiver of all nonjurisdictional defects in a manner equivalent to a guilty plea. Lott v. United States, 367 U.S. 421, 81 S. Ct. 1563, 6 L. Ed. 2d 940 (1961); United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980).” (Internal quotation marks omitted.) State v. Madera, 198 Conn. 92, 97 n.5, 503 A.2d 136 (1985). Thus, it is simply too much to expect of the employer that it be required to set aside its legitimate expectations, solely because of the differences, which the law recognizes in contexts other than that of employment, between a conviction based upon a guilty plea or trial and a conviction based upon a nolo contendere plea.

Lawrence v. Kozlowski, supra, 171 Conn. 705, upon which the defendant relies, does not require a different conclusion. In Lawrence, the plaintiff challenged, by way of an appeal under the Uniform Administrative Procedure Act, the suspension of his driver’s license by the defendant commissioner, who had admitted into evidence at the administrative hearing a certified record of the plaintiffs prior plea of nolo contendere to and ensuing conviction of negligent homicide. Id., 710. In concluding that the commissioner should not have admitted that record, we reiterated that “in a judicial proceeding the plaintiffs nolo contendere plea and arrest would be inadmissible. Furthermore, despite the broad latitude given the commissioner with respect to the admission of evidence, we are also of the opinion that the nolo contendere plea should have been excluded from the administrative hearing as well, not only because it was of marginal probative value, but also because such pleas are often entered with the expectation that they will not be used against an accused in subsequent proceedings. See McCormick, [supra] § 265.” Lawrence v. Kozlowski, supra, 711-12. In an explanatory footnote regarding the differences between a guilty plea and a nolo contendere plea, with respect to the latter, we stated: “Nor is it admissible ... as res judicata establishing that the plaintiff was engaged in a criminal act.” Id., 711 n.4. For this proposition, we cited Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 714, 8 A.2d 5 (1939), in which, in the context of an action for damages, we had held that the record of a prior police court conviction of the plaintiff for breach of peace, based upon a nolo contendere plea, “was not admissible as res judicata.”

As these authorities state, under our law a prior plea of nolo contendere and a conviction based thereon may not be admitted into evidence in a subsequent civil action or administrative proceeding to establish either an admission of guilt or the fact of criminal conduct. Civil actions and administrative proceedings, however, ordinarily do not involve the kind of legitimate expectations of the employer that are inherent in the employment context and that would be severely undermined by requiring the reinstatement of an employee convicted of embezzling his employer’s funds. The absence of these considerations in the ordinary civil or administrative context, and the compelling nature of their presence in the employment context, differentiate these authorities from the present case.

This differentiation, moreover, is premised on the notion that, because arbitration is essentially a private ordering scheme for resolving disputes, those authorities should not be extended to that private scheme. Voluntary arbitration is a method by which parties freely determine that their disputes will be resolved, at least in the first instance, not by public officials such as judges or administrators, but by arbitrators. Our legal system encourages that determination by ordinarily giving great deference to the initial decision to arbitrate; State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473, 747 A.2d 480 (2000); and to both the factual and legal determinations of the arbitrators. Garrity v. McCaskey, supra, 223 Conn. 7. Indeed, the arbitral process only becomes part of the public process of civil litigation if either party seeks judicial review of the arbitrator’s decision, and even then it is the exception, as in the present case, rather than the rule, that the scope of review of that decision requires a de novo determination by the court; and even in the present case, we give deference to the arbitrator’s factual determinations.

Therefore, although our jurisprudence traditionally has imposed limitations on the collateral effects to be given, in the civil and administrative litigation contexts, to a conviction based on a nolo plea, the private nature of voluntary arbitration strongly counsels against extending those limitations to the employment sphere governed by a voluntary arbitration clause. Put another way, our law is willing, for reasons of policy, to endorse the notion that a conviction based on a nolo plea is somehow different from and less than a criminal conviction based on a trial or guilty plea, to the extent that it may not be used for all purposes for which such convictions may be used in other public legal proceedings, such as civil trials and administrative proceedings. That does not mean, however, that the same notion must or should be extended to the private realm of arbitration governing employment. In that realm, a conviction based on a plea of nolo contendere does not, in our view, necessarily carry the same set of limitations with it. Thus, it may be viewed, as in the present case, as a conviction for embezzlement of the employer’s funds.

The judgment is affirmed.

In this opinion MCDONALD, C. J., and SULLIVAN and VERTEFEUILLE, Js., concurred.

MCDONALD, C. J.,

concurring. I agree with the majority opinion. I only wish to add that I do so as well for the reasons set forth in my dissent in Groton v. United Steelworkers of America, 252 Conn. 508, 526-27, 747 A.2d 1045 (2000).

KATZ, J.,

with whom NORCOTT and PALMER, Js., joined, dissenting. I agree that, when a challenge to a voluntary arbitration award rendered pursuant to an unrestricted submission raises a legitimate and color-able public policy claim, the question of whether the award violates public policy requires de novo judicial review; see Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000); and that because the challenge in the present case raises such a claim, we should undertake de novo review of the award. I also agree that “the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 340, 555 A.2d 406 (1989). Applying the appropriate scope of review, I would conclude, however, that, based upon the undisputed facts of the present case, the award did no t violate the clear public policy against embezzlement because it was premised solely upon a conviction that followed a plea of nolo contendere.

The employment context ordinarily involves a number of legitimate expectations on the part of the employer that a conviction of embezzlement is likely to undermine. Therefore, as the majority states in its opinion, “if [David] Warren’s conviction for embezzlement of his employer’s funds had followed either a guilty plea or a trial, the employer would have been justified in imposing appropriate discipline, including termination, and an arbitral award requiring his reinstatement to employment would have violated clear public policy. See, e.g., Board of Education v. Local 566, Council 4, AFSCME, 43 Conn. App. 499, 500-501, 683 A.2d 1036 (1996), cert. denied, 239 Conn. 957, 688 A.2d 327 (1997) (where grievant had pleaded guilty to and been convicted of fraudulently diverting union funds, award reinstating him to job with responsibility for publicly owned property violated public policy); see also State v. Council 4, AFSCME, 27 Conn. App. 635, 641, 608 A.2d 718 (1992) (where grievant admittedly had misused state funds by cashing falsely generated public assistance checks, award of reinstatement to employment violated public policy). In either instance, the record would be sufficient to establish that the employee had in fact stolen from his employer. The guilty plea would constitute an admission of guilt; see Lawrence v. Kozlowski, [171 Conn. 705, 711 n.4, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]; and the conviction after trial would be sufficient to establish the fact of the theft, under established principles of issue preclusion. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296-307, 596 A.2d 414 (1991). In either of those instances, the public policy against theft also would include the policy that an employer should not be required to retain in a position of financial trust an employee who has been established to have stolen.”

The question posed by this appeal, however, is whether the arbitrator, as a matter of law, was required to determine that a conviction after a plea of nolo con tendere, as opposed to a plea of guilty or a conviction after atrial, established just cause for Warren’s termination. The majority concludes that an arbitral award requiring an employer to reinstate an employee who has been terminated following a conviction of embezzling the employer’s funds violates public pohcy irrespective of whether his conviction followed a trial, a guilty plea or a nolo contendere plea. The decision in this case does not turn, however, simply on whether the threat to the employer’s legitimate expectations are removed or significantly ameliorated by the fact that the conviction of embezzlement rests upon a plea of nolo contendere, as opposed to a plea of guilty or a trial. Indeed, the public policy against embezzlement encompasses the policy that an employer should not be compelled to reinstate an employee who has embezzled the employer’s funds, regardless of whether the employee even has been charged with, let alone convicted of, such an offense. Rather, the decision in this case turned on the arbitrator’s finding that, because the employer had not sought to prove independently that Warren had embezzled its funds, relying exclusively on his nolo plea, the employer established “little or nothing about [Warren’s] guilt or innocence . . . .”

Although a conviction following a plea of nolo contendere has the weight of a final adjudication of guilt, and shares some characteristics of a guilty plea, its limited evidentiary value is undisputed. As this court has stated, unlike a plea of guilty, “a plea of nolo contendere is merely a declaration by the accused that he will not contest the charge, and even though followed by a finding of guilty and the imposition of a fine or other penalty, is not admissible, either as a verbal admission or an admission by conduct. Casalo v. Claro, 147 Conn. 625, 632, 165 A.2d 153 [1960]. Nor is it admissible to affect a party’s credibility, as evidence of an arrest, or as res judicata establishing that the plaintiff was engaged in a criminal act. Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 713, 8 A.2d 5 [1939]; see also Holden & Daly, Connecticut Evidence § 103f. Pleas of nolo contendere may be entered for reasons of convenience and without much regard to guilt and collateral consequences. McCormick, Evidence (2d Ed.) § 265, p. 636. Even though the plea may be regarded as a tacit admission, its inconclusive and ambiguous nature dictates that it should be given no currency beyond the particular case in which it was entered. A. B. Dick Co. v. Marr, 95 F. Sup. 83, 101 (S.D.N.Y. [1950]); State v. Thrower, 272 Ala. 344, 346, 131 So. 2d 420 [1961]; Federal Deposit Ins. Corporation v. Cloonan, 165 Kan. 68, 90, 193 P.2d 656 [1948]; State v. Fitzgerald, 140 Me. 314, 318, 37 A.2d 799 [1944]; State v. LaRose, 71 N.H. 435, 439, 52 A. 943 [1902]; Honaker v. Howe, 60 Va. (19 Gratt.) 50, 53 [1869]; see 4 Wigmore (3d Ed.) § 1066; annot., 18 A.L.R.2d 1287, 1314 § 5; annot., 152 A.L.R. 253; Fed. R. Crim. Procedure 11 (e) (6).” (Internal quotation marks omitted.) Lawrence v. Kozlowski, supra, 171 Conn. 711-12 n.4.

In reviewing an arbitration award, even on a claim of a public policy violation, neither the trial court nor this court has authority to make findings of fact that the arbitrator did not make. See, e.g. United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36-38, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987); New York State Correctional Officers & Police Benevolent Assn., Inc. v. New York, 94 N.Y.2d 321, 704 N.Y.S.2d 910, 726 N.E.2d 462 (1999). Notably, the arbitrator made a factual finding that Warren, the employee in the present case, had consulted an attorney, who, in reliance on Lawrence, had advised him that a plea of nolo contendere was not an admission of guilt.

In the present case, there is, therefore, no factual foundation whatsoever for the assertion that Warren embezzled even one penny from his employer. As the arbitrator observed, for all anyone knows, Warren may have been accused falsely by a disgruntled landfill user or by someone else who harbored unfounded suspicions of misconduct. The arbitrator made a factual finding, which is binding on this court, that Warren, pursuant to the advice of counsel and “under the Lawrence decision” that his plea could not be used against him, pleaded nolo contendere because, for financial reasons, he had deemed such a plea a more convenient and cleaner way to resolve the charges against him.

Our case law does not permit the inference that a nolo contendere plea automatically fills in this gap in the factual findings made by the arbitrator. Lawrence v. Kozlowski, supra, 171 Conn. 711-12 n.4. The holding in Lawrence has not been questioned until now. Nor has that holding been limited until now. The majority in this case concludes that, although a plea of nolo contendere and a conviction based thereon may not be admitted into evidence in a subsequent civil action or administrative proceeding to establish either an admission of guilt or the occurrence of criminal conduct, it is unfair to expect an employer to set aside its legitimate expectations, solely because of the differences between a conviction based upon a guilty plea or a trial and a conviction based upon a nolo contendere plea. The employer, however, need not set aside these expectations by reinstating an employee convicted of embezzling its funds. The employer may vindicate these expectations by demonstrating the misconduct that undermines its interests. A conclusion that the award conflicted with public policy therefore requires a determination that Warren embezzled, a finding that, because of the employer’s reliance on his nolo plea, was not made. In the absence of this finding, the majority’s decision distills to what is essentially a determination that the arbitrator’s adherence to our well established jurisprudence that a nolo plea is of limited precedential value was itself a violation of public policy.

As the majority acknowledges, when a challenge to an arbitrator’s award is made on public policy grounds, the reviewing court is not concerned with the correctness of the arbitrator’s decision, but, rather, with the lawfulness of the award. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). That evaluation “is to be ascertained by reference to the laws and legal precedents . . . .” (Internal quotation marks omitted.) New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 417, 544 A.2d 186 (1988). In the present case, the arbitrator adhered to our laws and legal precedents. I therefore fail to understand how, by following that law, and by failing to recognize the employment context exception announced today for the first time by the majority, the arbitrator violated any clear public policy.

Finally, other than relying on the legitimate expectations of the employer, the majority does not explain adequately why we now should treat a conviction following a nolo plea in the employment context differently from the way we traditionally have treated it in the civil and administrative arenas where other equally important interests are at stake. The majority states in its opinion that the employment context is different because it is premised on the notion that “arbitration is essentially a private ordering scheme for resolving disputes . . . .” Although that is true, the arbitral process quite often becomes part of the public process of civil litigation. Additionally, not all arbitrations are unrestricted. Furthermore, not all employment cases are decided by arbitration. Nevertheless, according to the majority, Warren’s nolo plea properly should have constituted substantive evidence in the arbitration proceeding, while, under Lawrence v. Koslowski, supra, 171 Conn. 712, his nolo plea could not have been used for substantive purposes had he been required to bring a civil action under his employment contract. Only if we were to overrule Lawrence in that context, a remedy that has not been sought, could the treatment be consistent. If it is, in fact, the employment context that is so significant, I fail to understand the disparate treatment of the evidence. There is certainly no indication in this case to even suggest that the expectations of the employer concerning the evidence upon which it could rely depended upon the forum in which Warren’s termination could be litigated.

In conclusion, in deciding to treat a conviction following a nolo plea differently from a conviction resulting from a trial or a guilty plea, we have engaged in a balancing test and have determined that facilitating resolution of criminal cases is paramount. By relying on the private nature of arbitration as a basis upon which to create an exception to our jurisprudence regarding the limited use of the nolo plea, the majority, in essence, takes the first step toward the elimination of the nolo plea. While that step is certainly within its purview, I do not see its necessity.

Accordingly, I respectfully dissent.

       The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). Initially, a majority of a five member panel of this court consisting of Chief Justice McDonald and Justices Borden, Norcott, Katz and Peters reversed the judgment of the trial court. Groton v. United Steelworkers of America, 252 Conn. 508, 747 A.2d 1045 (2000). Justice Peters subsequently reached her seventieth birthday on March 21, 2000, and is no longer a member of this court. On April 28, 2000, the court granted the plaintiffs motion for reconsideration en banc. Thereafter, Justices Palmer, Sullivan and Vertefeuille were added to the panel. They subsequently reviewed the record, briefs and transcript of the original oral argument before this court and participated in the resolution of this case. This opinion supersedes our prior decision; id.; in all respects.

       This conclusion renders it unnecessary to consider the plaintiffs alternate ground for affirmance of the judgment, namely, that the award was rendered in manifest disregard of law.

       General Statutes § 53a-119 provides in relevant part: “Larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully taires, obtains or withholds such property from an owner. Larceny includes, but is not limited to:
      “(1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody. ...”

       General Statutes § 53a-125b provides: “Larceny in the sixth degree: Class C misdemeanor, (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.
      “(b) Larceny in the sixth degree is a class C misdemeanor.”

       Rule 10 of the plaintiffs personnel rules provides: “EMPLOYEE DISCIPLINE
      “SCOPE: This rule governs the imposition of disciplinary action for employee misconduct. Section 1 contains examples of employee misconduct, while Section 2 contains procedures governing the imposition of disciplinary action.
      “Section 1. EXAMPLES OF EMPLOYEE MISCONDUCT
      “The following are examples of employee conduct for which disciplinary action may be instituted. This list is not all inclusive and disciplinary action may be imposed for other forms of employee conduct which are detrimental to the Town of Groton:
      “(a) Conviction of a felony or misdemeanor arising out of the performance of duty or within the scope of employment which may affect the performance of duty.
      “(b) Non-performance of job duties or job performance below the established requirements of the position.
      “(c) Absence without leave.
      “(d) Disobedience of orders from a superior or other acts of insubordination or disrespect.
      “(e) Negligence resulting in damage to municipal property or equipment or constituting a threat to the safety of the employee or fellow employees.
      “(f) Violation of established rules and procedures governing employee behavior or conduct.
      “(g) Habitual tardiness and/or absenteeism; the abuse of sick or annual leave.
      “(h) Misappropriation, destruction, theft or conversion of municipal property or equipment.

        “(i) Falsification of information on an application for employment, insurance records or other employee records maintained by the Town.
      “(j) Failure to properly report accidents or personal injuries.
      “(k) Use, consumption or being under the influence of intoxicating liquors, narcotics, or other controlled substances while using municipal equipment or during working hours. The use of prescription drugs which may impair employee actions so as to be dangerous to the employee or other fellow employees or cause said employee to be unable to perform the duties and responsibilities of his/her position.
      “(J) Unauthorized disclosure of confidential employee records or information.
      “(m) Harassment of other employees.
      “Section 2. IMPOSITION OF DISCIPLINARY ACTION
      “(A) Authority to Impose Disciplinary Action
      “Disciplinary action for employee misconduct may be initiated or recommended by employees having supervisory responsibilities over the person involved. However, only Department Heads or appointing authorities may impose disciplinary action involving suspension, demotion or discharge.
      “(B) Forms of Corrective Action
      “The forms of corrective action which may be imposed are listed in progressive order of severity as follows:
      “(1) Oral reprimand (warning)
      “(2) Written reprimand
      “(3) Temporary reduction in pay
      “(4) Suspension
      “(5) Demotion
      “(6) Discharge
      “Corrective action shall be, whenever possible, of an increasingly progressive nature in accordance with the above paragraph. The supervisor or appointing authority, however, retains the right to skip steps depending on the severity of the offense or upon the past work record of the employee involved.”

       A second issue, involving whether the plaintiff improperly had denied Warren credit for certain unused personal and vacation days he had accumulated prior to his termination, is not involved in this appeal.

         The plaintiff also claimed that, and the arbitrator considered whether, Warren had been insubordinate during one of the various meetings by refusing to answer questions about his conduct regarding the allegedly mishandied funds in violation of a different subsection of the personnel rules. According to the arbitrator, Warren had not answered those questions because of confusion on the part of both the plaintiff and the defendant over the appropriate warnings required to have been given to Warren. Consequently, the arbitrator exonerated Warren of the insubordination charge.
      Although the plaintiff did not raise this issue in its application to vacate, the trial court addressed it. Moreover, although the court appeared to endorse the plaintiffs position on this issue, the court rested its decision to vacate the award, not on this basis, but on the basis of the conviction. The defendant claims on appeal that the trial court improperly addressed this issue because it was not within the scope of the pleadings. We need not address this claim, however, because we do not read the trial court’s decision as resting on this ground, and the plaintiff has not renewed on appeal its claim on this issue as an alternate ground on which to affirm the trial court’s judgment.

       The plaintiff also claimed that the award was in manifest disregard of the law. In light of its conclusion that the award violated public policy, the trial court did not address that claim. It is unnecessary for us to reach that claim as well. See footnote 7 of this opinion.

       Both parties agree that the submission to the arbitrator was unrestricted.

       General Statutes § 52-418 provides: “Vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators. Notwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing unless either party affirmatively pleads and the court or judge determines that there is no issue in dispute.
      “(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the State Board of Mediation and Arbitration shall notify said board and the Attorney General, in writing, of such filing within five days of the date of filing.”
      In Garrity v. McCaskey, supra, 223 Conn. 10, we also recognized that § 52-418 (a) (4) includes the instance in which “an award that manifests an egregious or patently irrational application of the law . . . .”

       We emphasize that we do not hold that, in imposing discipline on an employee who has been established to have embezzled his employer’s funds, the employer is required by law to terminate the employee. The degree of discipline that the employer imposes is, in the first instance, within the discretion of the employer, subject to those standards set forth in the applicable personnel rules, collective bargaining agreement, and any other relevant materials. Indeed, in Board of Education v. Local 566, Council 4, AFSCME, 43 Conn. App. 499, 501, 683 A.2d 1036 (1996), cert. denied, 239 Conn. 957, 688 A.2d 327 (1997), in which the employee had pleaded guilty to stealing union funds, the discipline imposed was not termination but demotion to a lesser position. The arbitral award that was held to violate public policy was to reinstate him to his prior position. Id., 504.

       We acknowledge that there may be circumstances attending such a plea that are so extreme that a conviction based upon it should be given no credence whatsoever for purposes of an employment discipline decision. Suffice it to say that, although in the present case the circumstances attending Warren’s plea generate understanding of his dilemma in deciding whether to plead nolo contendere or go to trial, they are not so extreme as to require that his conviction be wholly disregarded in the subsequent employment discipline decision.

       As the plaintiff suggests, however, this is not the universally held view. See, e.g., Sokoloff v. Saxbe, 501 F.2d 571, 574-75 (2d Cir. 1974), in which the court sustained the revocation of a physician’s license pursuant to a federal statute providing for such revocation upon the conviction of a drug-related felony, where the physician had been convicted of such a felony upon the basis of his nolo contendere plea. The court stated that “[w]here ... a statute (or judicial rule) attaches legal consequences to the fact of a conviction, the majority of courts have held that there is no valid distinction between a conviction upon a plea of nolo contendere and a conviction after a guilty plea or trial.” Id., 574.

       See North Carolina v. Alford, 400 U.S. 25, 35-36 n.8, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (plea of nolo contendere has same legal effect as plea of guilty on all further proceedings); Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (nolo contendere plea constitutes waiver of all nonjurisdictional defects).

       recognize that the town’s personnel rules provide that conviction of an offense involving the employee’s duties may serve as a basis for discharge from employment. See footnote 5 of the majority opinion. To conclude, however, as the majority does, that the arbitrator violated public policy by reinstating Warren would require a finding that he had in fact stolen from the town, a finding that the arbitrator did not malee.

       The majority focuses on the legitimate expectations of the employer, leaving no room for consideration of the legitimate expectations of the employee. To assure a criminal defendant that his plea of nolo contendere will not be used against him, as in this case, and then to allow it to be the basis for his termination, particularly when the arbitrator has recognized the financial circumstances at play that induced the plea, is both unfair and, arguably, a violation of the plea agreement.


source: Caselaw Access Project

author:
      Opinion
     BORDEN, J.

license: Public Domain

text:
    ANGELO PIETRAROIA v. NORTHEAST UTILITIES ET AL.
    (SC 16278)
    McDonald, C. J., and Borden, Norcott, Palmer and Sullivan, Js.
    Argued May 30
    officially released August 8, 2000

      Amy M. Stone, with whom was Carolyn P. Kelly, for the appellant (plaintiff).

      Robert J. Enright, with whom were Douglas L. Dray-ton, Theodore M. Pappas and Nancy S. Rosenbaum, for the appellee (named defendant).
   Opinion

BORDEN, J.

The dispositive issue in this appeal is whether the workers’ compensation commissioner (commissioner) abused his discretion in dismissing with prejudice the claim of the plaintiff, Angelo Pietraroia, a resident of Australia, because he failed to appear for the formal hearing before the commissioner in Connecticut. The plaintiff appeals from the decision of the compensation review board (board) affirming the decision of the commissioner dismissing the plaintiffs claim. The plaintiff contends that: (1) the commissioner had no power to dismiss the claim without adjudicating the case on the merits; and (2) in the alternative, the commissioner abused his discretion in dismissing the claim. We conclude that: (1) the commissioner had the power to dismiss the claim; but (2) he abused his discretion in doing so. Accordingly, we reverse the board’s decision.

The plaintiff, on August 8,1994, through his Connecticut attorney, filed a claim for workers’ compensation against his former employer, the defendant Northeast Utilities, alleging that, while employed by the defendant from 1956 through 1972, he suffered “[p]ulmonary impairment caused by exposure to lung irritants . . . .” The notice of claim indicated that the plaintiff lived in Australia. The defendant filed a timely notice of contest of liability. Ultimately, on June 5, 1998, the commissioner granted the defendant’s motion to dismiss the claim with prejudice. The plaintiff appealed from that decision to the board, which affirmed the decision. This appeal followed.

Certain facts and the procedural history are undisputed. Following the filing of the plaintiffs claim and the defendant’s notice of contest, the matter was scheduled for a formal hearing on January 28, 1997. On January 2,1997, however, the plaintiff moved for permission to present his testimony electronically. In support thereof, the plaintiff represented that he was sixty-four years old, he had lived in Australia since 1972, and he resided in McLaren Flat, South Australia, which is near the city of Adelaide. He also represented that he was unable to testify in person because of illness, as indicated in a medical report attached to the motion. He represented further that he “could . . . present his case by way of deposition,” which he acknowledged would, however, “be an inconvenience for both [the plaintiff] and [the defendant] in that counsel for each party would either have to travel to Australia at considerable cost or procure Australian attorneys to conduct a deposition in Australia.” The plaintiff submitted that “another alternative would be to present his testimony telephonically before the Commissioner at a continued formal hearing scheduled for a time which would take into account the 14 1/2 hour time difference between Middletown, Connecticut and South Australia.” He submitted that a telephone with speaker phone capabilities at the site of the hearing would be used, that the oath would be administered by an appropriate official provided in Practice Book § 13-28, formerly § 245, and that he would bear the cost of the telephone time. The commissioner denied this request on January 6, 1997.

Prior to the scheduled January 28 formal hearing, the defendant scheduled a physical examination of the plaintiff with Thomas Godar, a Connecticut physician, and also scheduled a deposition of the plaintiff in Connecticut. These were scheduled for times close to the January 28 formal hearing date. Neither the physical examination nor the deposition took place because the plaintiff did not travel from Australia to Connecticut for the hearing.

At the hearing on January 28, the defendant contended that “the statute of limitations and the statute of non-claim” barred the plaintiffs claim. The defendant also took the position that the hearing could not proceed because the plaintiff had not come to Connecticut to be deposed, to be examined by Godar, or to testify in the matter. The defendant contended that “[i]f the [plaintiff] wants the advantage of the Workers’ Compensation Act, he has to come back to the United States and comply with the rules and regulations and laws under Chapter 568” of the statutes. The defendant also suggested, however, that, based on the medical report, which had indicated that the plaintiffs symptoms were worse in the winter months, “[i]f [the plaintiff were] interested in pursuing his claim, maybe it’s not ripe to be heard in the winter months in [Connecticut],” and that “[m]aybe his condition will be better in the summer months” and that he might be able to travel here for the hearing then.

The plaintiffs counsel responded that the plaintiff was not barred from pursuing his claim “simply because he’s unable to come to Connecticut to either be examined or to testify live at trial.” The counsel suggested that the plaintiff could be examined by a physician of the defendant’s choice in Australia, and that the plaintiffs counsel intended to arrange for his deposition to be taken in Australia.

The plaintiffs counsel had a coworker of the plaintiff, Anthony Yacono, however, available to testify at the hearing. The commissioner ruled that he would hear Yacono’s testimony. Yacono testified to the effect that he and the plaintiff worked on a boiler repair crew for the defendant for approximately fifteen years, that this work involved ongoing and significant exposure to asbestos dust, and that he had retired early in 1986 because he had asbestosis.

Following the hearing, the defendant moved in writing to stay the formal hearing, and to compel the plaintiff to come to Connecticut for a prehearing deposition, for an examination by Godar, and for the hearing itself. The defendant contended that it was not reasonable to require it either: (1) to travel to Australia or to engage Australian counsel for purposes of deposing the plaintiff there; or (2) to engage an Australian physician to examine the plaintiff there. Thus, the defendant maintained, “[t]here are no palatable alternatives, short of [the plaintiffs] return to the state of Connecticut,” and that “these concerns . . . mandate [the plaintiff] to return to the United States, if he intends to pursue his claim against the [defendant] formally.”

In response, the plaintiffs counsel requested that, in lieu of the plaintiffs physical presence at the hearing, his deposition be taken in Australia for use at the hearing. With respect to Godar’s examination, the plaintiffs counsel contended that, although the plaintiff did not contest the appropriateness of an examination by a physician chosen by the defendant, or the defendant’s right to have Godar review the case and testify as an expert, a proper balance of the parties’ interests would be struck by having the defendant obtain an examination in Australia and provide the results to Godar for his review.

On April 14,1997, the commissioner ruled as follows: “The [plaintiff] shall avail himself for a deposition, an [independent medical examination], and testify before the undersigned in Connecticut by 9/1/97. Failure to do so and absent good cause may result in a mistrial.” The plaintiff petitioned for review by the board, which affirmed the ruling.

The plaintiff did not come to Connecticut on or before September 1,1997, and on February 12,1998, the defendant moved for a mistrial and dismissal of the plaintiffs claim. The plaintiffs counsel objected, and indicated that the plaintiff had “advised counsel that he will travel to the United States in May of 1998 . . . .” Accordingly, the plaintiffs counsel requested that the formal hearing be continued “to a date certain in May of 1998.” Attached to the plaintiffs counsel’s objection and request for a continuance, as the basis for the plaintiffs contention of “ ‘good cause’ ” for his earlier failure to appear by September 1, 1997, was a letter dated April 28, 1997, from Ann Matthews, a physician in Australia, stating that “[i]t is highly undesirable that [the plaintiff] travels overseas because of a very probable risk of exacerbation of his respiratory tract diseases.”

The commissioner scheduled the formal hearing for May 8, 1998. On that date, the defendant and the plaintiffs counsel appeared. The plaintiffs counsel explained that, although the plaintiff had planned to come to Connecticut to pursue his claim and had made travel arrangements, he had not been feeling well for more than one month and that “shortly before he was to leave” he “finally decided that he did not feel well enough to travel. And, his doctor has confirmed that was an appropriate decision.” In support of that assertion, the plaintiffs counsel produced a letter from Peter Leonello, the plaintiffs physician, dated April 26, 1998, stating that the plaintiff “is at high risk of developing respiratory problems when travelling in confined spaces such as aeroplanes, and when coming in contact with new viruses in the northern hemisphere. His decision not to travel to the USA, I think, is reasonable on medical grounds.”

The defendant responded by filing a written motion to dismiss. The stated ground was “[the plaintiffs] failure to appear for trial.” The defendant indicated that it had scheduled an examination by Godar and a deposition of the plaintiff on dates close to the scheduled hearing date, that the plaintiffs counsel had informed the defendant that the plaintiff would not be appearing for the deposition, examination or hearing for the “ostensible reason . . . [of] ill health,” that as of May 7,1998, the defendant had “seen nothing in writing that supports this assertion,” and that “[n]either the [t]rial [commissioner, nor the [defendant] should accept the bare assertion that poor health prevents [the plaintiff] from appearing for trial.”

On June 5,1998, the commissioner granted the defendant’s motion to dismiss “with prejudice.” The plaintiff appealed to the board, which affirmed the commissioner’s decision. This appeal followed.

I

The plaintiff first claims that the commissioner had no authority to dismiss his claim without adjudicating it on the merits. The plaintiff argues that, unlike trial judges, who undoubtedly have the power to dismiss or otherwise deny a claim for failure to comply with discovery orders; see, e.g., Practice Book § 13-14; or for failure to appear for trial; see, e.g., Practice Book § 17-19; a workers’ compensation commissioner has no statutory or regulatory authority to dismiss a claim, except on jurisdictional grounds, without adjudicating its merits, irrespective of the reasons for such a dismissal. We disagree.

General Statutes § 31-298 provides in relevant part: “In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. . . .” This statutory language is capacious enough to include the power to dismiss a claim in an appropriate case.

There is no doubt that a court may, under its inherent equitable powers, dismiss a claim in an appropriate case of unjustifiable disobedience of its orders, or for an unjustifiable failure to appear for trial. See Jaconski v. AMF, Inc., 208 Conn. 230, 232-33, 543 A.2d 728 (1988). Thus, a commissioner has an analogous power to dismiss a claim “in accordance with the rules of equity.” General Statutes § 31-298. Furthermore, the statutory grant to the commissioner “to ascertain the substantial rights of the parties and carry out the provisions and intent of’ the workers’ compensation laws; General Statutes § 31-298; necessarily carries with it the power to dismiss a claim in an appropriate case. The “substantial rights of the parties” include the right of the employer, in an appropriate case, independently to examine the claimant, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing.

Indeed, the plaintiffs argument would mean that, despite the reasonableness of the commissioner’s orders, and despite the lack of justification for his failure to comply with them or to appear for a duly scheduled formal hearing, the commissioner could not dismiss the claim. The result would be that the claim would remain in a procedural limbo. We decline to read the broad statutory grant of authority to the commissioner in such a cramped and bizarre way.

The plaintiffs reliance on Gonirenki v. American Steel & Wire Co., 106 Conn. 1, 137 A.2d 26 (1927), is misplaced. In that case, the commissioner denied, without a hearing on its merits, an application by the employer to reopen and modify a finding and award in favor of the employee on the basis of newly discovered evidence. Id., 3. This court ruled that the rights of the employer had been prejudiced by the commissioner’s ruling because the employer had not been afforded a hearing on the merits of its motion to reopen and modify the award. Id., 9. That case cannot be read as standing for the proposition that the commissioner has no statutory power to dismiss a claim irrespective of the merits of the motion to dismiss.

II

The plaintiff next contends that the commissioner abused his discretion in dismissing the plaintiffs claim. We agree. We conclude that, under the particular facts of the present case, there were available procedures, short of dismissal of the claim, that would have sufficiently protected the legitimate interests of both the plaintiff and the defendant.

It is implicit in the discussion in part I of this opinion that a commissioner has the discretion to dismiss a workers’ compensation claim for an unjustified failure of the employee to appear for a formal hearing, to appear for a deposition, and to subject himself to a properly ordered independent medical examination. Just as in a court, “ [decisions on the entry of such sanctions rest within the sound discretion of the [commissioner]. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 39-40, 404 A.2d 889 (1978). In reviewing a claim that this discretion has been abused the unquestioned rule is that great weight is due to the action of the [commissioner] and every reasonable presumption should be given in favor of its correctness. Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 [1926] .... Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 [1954]. Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 [1970]. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972). [T]he ultimate issue is whether the [commissioner] could reasonably conclude as it did. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959). Timm v. Timm, 195 Conn. 202, 207, 487 A.2d 191 (1985).” (Internal quotation marks omitted.) Rullo v. General Motors Corp., 208 Conn. 74, 78-79, 543 A.2d 279 (1988). Just as in a court, however, “[discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 239, 654 A.2d 342 (1995). The commissioner’s discretion, therefore, must be exercised consistently with several fundamental principles applicable to workers’ compensation proceedings.

The Workers’ Compensation Act (act) “provides the sole remedy for employees and their dependents for work-related injuries and death.” Green v. General Dynamics Corp., 245 Conn. 66, 71, 712 A.2d 938 (1998). Its purpose “is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Middletown v. Local 1073, 1 Conn. App. 58, 65, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). Furthermore, the act “is remedial and must be interpreted liberally to achieve its humanitarian purposes.” Gil v. Courthouse One, 239 Conn. 676, 682, 687 A.2d 146 (1997). In addition, inherent in the act is its analog to the judicial “policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.

. . . Rules are a means to justice, and not an end in themselves . . . . In re Dodson, 214 Conn. 344, 363, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L.Ed.2d 205 (1990). Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974).” (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 665-66, 707 A.2d 281 (1998).

These principles lead us to conclude that, before imposing the sanction of dismissal, the commissioner must be satisfied that no other procedures are reasonably available to meet the legitimate interests of both parties. Thus, the sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the employer. That high standard was not met in the present case.

We first note that no testimony regarding any of the underlying assertions was taken. All of the facts concerning the ability or lack thereof of the plaintiff to travel to Connecticut from Australia were reflected in the medical reports from the physicians in Australia. Thus, the deference that we normally would give to the commissioner on issues of credibility is not warranted in the present case, because we are as able as he was to gauge the reliability of those documents.

That documentary record is sufficiently and consistently clear to establish, at least presumptively, that the plaintiff suffers from asbestosis, that he has done so for several years, and that there would have been serious risks to his health created by traveling to Connecticut. The November, 1996 report of Leonello, including the attached X-ray reports, indicated the physician’s diagnosis of pulmonary asbestosis, that the plaintiffs symptoms were worse during the winter months, and that the physician had advised him against traveling to the United States—not only during the winter months, but “particularly now that the winter [was] coming.” The April, 1997 report of Matthews reaffirmed the diagnosis of asbestosis, and stated that it was “highly undesirable” that the plaintiff travel overseas because of a “very probable risk of exacerbation of his respiratory tract diseases.” The April, 1998 report of Leonello asserted, consistent with the previous two reports, that the plaintiff was at “high risk of developing respiratory problems when travelling in confined spaces such as aeroplanes, and when coming in contact with new viruses in the northern hemisphere,” that the plaintiffs decision not to travel here was, therefore, medically reasonable, and that Leonello had advised him, on both physical and emotional grounds, not to travel to Connecticut. Thus, there was a consistent documentary record, from three Australian physicians, that it would have been a serious medical risk for the plaintiff to travel to Connecticut.

Moreover, contrary to the suggestion of the defendant, there was no basis in this record to disregard these written medical opinions. Although it is true that, ordinarily, a commissioner is not required to accept as true the opinion of any medical expert; Daly v. Del-Ponte, 225 Conn. 499, 517, 624 A.2d 876 (1993); when faced, as the commissioner was in the present case, with a consistent set of medical reports from physicians, albeit in Australia, stating their professional opinions that traveling to Connecticut would involve serious risks to the plaintiffs health, there was no basis not to take those reports at face value.

Furthermore, it is only realistic in today’s mobile world to expect that claimants may well no longer live in or near Connecticut by the time they discover that they have contracted asbestosis, and that, as in the present case, by that time they may have moved to other countries thousands of miles away. “Occupational diseases are, from a legal standpoint, peculiar in this— that they arise, not from an accident or event happening at a precise moment, but from a day to day exposure to unhealthful conditions over an extended period; the exact time of their origin is necessarily obscure and their insidious progress is not revealed until, frequently after a long interval, the disability which they create manifests itself.” (Internal quotation marks omitted.) Green v. General Dynamics Corp., supra, 245 Conn. 72-73.

Therefore, as the United States Supreme Court has stated in a related context: “American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. ” Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 546, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987). The same must be said for our workers’ compensation commission.

Finally, there were readily available alternatives to dismissal of the plaintiffs claim. His deposition could have been taken in Australia, with the defendant’s counsel either choosing to travel there for that purpose or engaging qualified Australian counsel. Australia is, obviously, a highly sophisticated, English-speaking nation, with a common-law tradition similar to ours. There is no reason to suppose that, if Australian counsel were engaged, it would have been unduly difficult to familiarize him or her with the legal and medical issues involved in the case. Similarly, an independent medical examination on the defendant’s behalf could have been arranged in Australia, to be performed by a qualified Australian physician, and his findings and reports, as well as any X-ray films, could have been supplied to Godar for his review.

It may well be true that, as the defendant contends, a medical examination by an Australian physician would not be the same as an examination performed personally by Godar. We assume that the defendant’s assertions regarding Godar’s abilities and reputation are accurate/It is also true, however, that not only the defendant’s interests are at stake in this determination. The plaintiff has an equally weighty interest in presenting his claim in the only forum legally available to him, without undue risks to his health. The commissioner’s decision to dismiss the plaintiffs claim gave undue weight to the defendant’s interests and insufficient weight to those of the plaintiff.

The decision of the board is reversed and the case is remanded to the board with direction to reverse the decision of the commissioner dismissing the claim, and to remand the case to the commissioner for further proceedings according to law.

In this opinion the other justices concurred.

       The plaintiff appealed from the decision of the compensation review board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-2 and General Statutes § 51-199 (c).

       The plaintiff also claims that the dismissal denied him his constitutional rights to due process of law, to access to the courts, and to travel. In view of our conclusion that the commissioner abused his discretion in dismissing the claim, we need not reach the plaintiff’s constitutional claims.

       Other defendants are various insurers of Northeast Utilities, namely, Hartford Insurance Group, Travelers Insurance Co., Twin City Fire Insurance Co., and Liberty Mutual Insurance Co., and the second injury fund. Only Northeast Utilities filed a brief in this court. We therefore refer to Northeast Utilities as the defendant.

       It is undisputed that the plaintiff claims that his prolonged exposure to asbestos while in the defendant’s employ caused him to contract asbestosis.

       The medical report of Peter Leonello, a physician from Hackney, Australia, was dated November 9, 1996, and provides in relevant part: “[The plaintiff] gave me a copy of the letter that you sent him, dated 16/9/1996 and has requested that I write to you again in relation to his medical condition.
      “Since I last reported to you on 26/5/1996 I have continued to see [the plaintiff]. During this last winter here he has had frequent bouts of bronchitis with coughing and wheezing and has had a number of courses of antibiotics and bronchial dilators and inhaled steroids.
      “In June 1996 he also had an episode of vertigo that lasted about 1 week and this I thought was due to an episode of benign positional vertigo.
      “A chest X-ray was repeated on 30/9/96 and copy of the report is enclosed. It again reveals clear changes in keeping with pulmonary asbestosis with pleural and parenchymal involvement.
      “He is now retired because of increasing difficulty or inability to work in his vineyard. His symptoms are generally worse during the winter months.
      “Given his respiratory problems particularly his tendency for recurrent bouts of bronchitis and asthma and shortness of breath during the winter months I have advised him against traveling to the United States particularly now that the winter is coming there. He is also at risk of developing further episodes of benign positional vertigo. . . .”
      The medical report also enclosed a copy of two X-ray reports, dated May 22 and September 30, 1996. These reports referred to earlier X-ray reports and indicated continuing indications of lung disease “consistent with pulmonary asbestosis.”

       Practice Book § 13-28, formerly § 245, provides: “—Persons before Whom Deposition Taken; Subpoenas
      “(a) Within this state, depositions shall be taken before a judge or clerk of any court, notary public or commissioner of the superior court. In any other state or country, depositions for use in a civil action, probate proceeding or administrative appeal within this state shall be taken before a notary public, of such state or country, a commissioner appointed by the governor of this state, any magistrate having power to administer oaths in such state or country, or a person commissioned by the court before which such action or proceeding is pending, or when such court is not in session, by any judge thereof. Any person so commissioned shall have the power by virtue of his or her commission to administer any necessary oaths and to talce testimony. Additionally, if a deposition is to be taken out of the United States, it may be taken before any foreign minister, secretary of a legation, consul or vice-consul appointed by the United States or any person by him or her appointed for the purpose and having authority under the laws of the country where the deposition is to be taken; and the official character of any such person may be proved by a certificate from the secretary of state of the United States.
      “(b) Each judge or clerk of any court, notary public or commissioner of the superior court, in this state, may issue a subpoena, upon request, for the appearance of any witness before an officer authorized to administer oaths within this state to give testimony at a deposition subject to the provisions of Sections 13-2 through 13-5, if the party seeking to take such person’s deposition has complied with the provisions of Sections 13-26 and 13-27.
      “(c) A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections 13-2 through 13-5.
      “(d) The person to whom a subpoena is directed may, within fifteen days after the service thereof or on or before the time specified in the subpoena for compliance, if that time is less than fifteen days after service, serve upon the issuing authority designated in the subpoena written objection to the inspection or copying of any or all of the designated materials. If objection is made, the party at whose request the subpoena was issued shall not be entitled to inspect and copy the disputed materials except pursuant to an order of the court in which the cause is pending. The party who requested the subpoena may, if objection has been made, move, upon notice to the deponent, for an order at any time before or during the taking of the deposition.
      “(e) The court in which the cause is pending, or, if the cause is pending in a foreign court, the court in the judicial district wherein the subpoenaed person resides, may, upon motion made promptly and, in any event, at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (c) of this section, or (2) condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials being sought.
      “(f) If any person to whom a lawful subpoena is issued under any provision of this section fails without just excuse to comply with any of its terms, the court before which the cause is pending, or any judge thereof, or, if the cause is pending in a foreign court, the court in the judicial district wherein the subpoenaed person resides, may issue a capias and cause the person to be brought before that court or judge, as the case may be, and, if the person subpoenaed refuses to comply with the subpoena, the court or judge may commit the person to jail until he or she signifies a willingness to comply with it.
      “(g) Deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action or probate proceeding pending in any court, of the United States or of any other state of the United States or of any foreign country, on application of any party to such civil action or probate proceeding.”

       In this connection, the defendant asserted that “it is inconceivable that any Australian physician could stand in the shoes of Dr. Thomas Godar for the purpose of a respondents’ examination. Anyone who practices before the Workers’ Compensation Commission in the state of Connecticut knows the extent of Dr. Godar’s training and experience, his familiarity with medical/legal issues in the workers’ compensation forum, and his reputation for fairness and integrity. And while there are undoubtedly trained, experienced, and fair physicians in Australia, in the Connecticut workers’ compensation forum, there is no substitute for Dr. Godar.”

       The defendant also suggested, alternatively, that, if the commissioner did not require the plaintiff’s presence here, there be “a truly ‘independent’ medical examination in Australia, for the limited purpose of ascertaining [the plaintiff’s] medical status” “vis-a-vis a return to the United States.”

       Matthews’ letter provided: “[The plaintiff] is a long standing patient in our practice. His main and active medical problem is severe respiratory tract disease. His major symptoms are due to lung disease secondary to protracted asbestos exposure. In addition, he has hyper-reactive airways/ asthma. He is troubled by daily cough, dyspnoea and a marked reduction in his exercise tolerance. He requires daily medication for the management of his respiratory disease.
      “It is highly undesirable that [the plaintiff travels overseas because of a very probable risk of exacerbation of his respiratory tract diseases.”

       Leonello’s letter, which was addressed to the plaintiffs counsel, provided: “[The plaintiff] has asked me to write to you again regarding his medical condition.
      “As I understand it, he was booked to come to the USA to attend a court hearing early in May this year. He came to see me on 15/4/1998 and stated that he had cancelled his trip to the USA on the basis that the trip was likely to cause an aggravation of his respiratory problems.

        “Judging from his progress over the last lew years, (recurrent asthma and bronchitis requiring the use of bronchodilators, antibiotics and, more recently, cortico steroids) it is also my opinion that he is at high risk of developing respiratory problems when travelling in confined spaces such as aeroplanes, and when coming in contact with new viruses in the northern hemisphere. His decision not to travel to the USA, I think, is reasonable on medical grounds.
      “This whole affair—trying to settle a compensation claim in the USA— has also had a toll on his emotional health. He has been very anxious about tins matter and I feel that he would not be able to (tope emotionally or psychologically with the travel, the medical examinations and the court hearing.
      “I have therefore advised him that it is better for both his physical and also emotional well-being that he does not travel to the USA.”
      In addition, the plaintiffs counsel produced several medical reports and income tax returns of the plaintiff, which were not offered into evidence but were marked for identification. Subsequent to the hearing, the plaintiff moved for admission of the medical reports and the tax returns into evidence. The commissioner did not rule on this motion prior to dismissing the claim. Our decision in this matter does not rest on any of that material.

       We consider the term “with prejudice,” as do the parties, to mean that the plaintiffs claim is dismissed with finality—without the ability in the plaintiff to revive it by, for example, later appearing for trial.

       Practice Book § 13-14 provides: “(a) If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Section 13-13, or has failed to comply with the provisions of Section 13-15, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require.
      “(b) Such orders may include the following:
      “(1) The entry of a nonsuit or default against the party failing to comply;
      “(2) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
      “(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      “(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
      “(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
      “(c) The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Sections 13-6 through 13-11 has been filed.”

       Practice Book § 17-19 provides: “If a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority.”

      General Statutes §31-298 provides: “Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. No fees shall be charged to either party by the commissioner in connection with any hearing or other procedure, but the commissioner shall furnish at cost (1) certified copies of any testimony, award or other matter which may be of record in his office, and (2) duplicates of audio cassette recordings of any formal hearings. Witnesses subpoenaed by the commissioner shall be allowed the fees and traveling expenses that are allowed in civil actions, to be paid by the party in whose interest the witnesses are subpoenaed. When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for oral testimony or deposition testimony rendered on his behalf by a competent physician, surgeon or other medical provider, including the stenographic and videotape recording costs thereof, in connection with the claim, the commissioner to determine the reasonableness of such charges.”

       If, however, the reliability of the opinions expressed by Leonello and Matthews in this regard were truly in question, the remedy would have been for an independent examination by an Australian physician of the defendant’s choosing, rather than for those opinions simply to be disregarded.