author: Callahan, J.

text:
    Dine Out Tonight Club, Inc. v. Department of Revenue Services
    (13572)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 31
    decision released April 4, 1989

      George C. Hastings, with whom were Richard W. Torneo and Raymond T. DeMeo, for the appellant (plaintiff).

      Edward T. Blair, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (defendant).
   Callahan, J.

This is a declaratory judgment action brought by the plaintiff Dine Out Tonight Club, Inc., to determine whether it is liable for Connecticut sales taxes on the sale of its membership privileges to Connecticut residents. The facts are either stipulated or undisputed. The plaintiff is a Rhode Island corporation with its sole office and place of business in that state. The plaintiff solicits memberships in its club from Connecticut residents by newspaper and direct mail advertising. In consideration of the payment of a membership fee an applicant receives a membership card that entitles such person to one free meal with the purchase of a second meal of equal or greater value at restaurants that participate in the plaintiffs plan. A member also receives a directory of participating restaurants and supplements to the directory as new restaurants enroll in the plan. At the time this matter was heard in the trial court, approximately 175 restaurants in Connecticut had agreed to participate in the plaintiffs plan and honored its membership card. A participating restaurant receives no remuneration from the plaintiff for furnishing free meals to its members. Restaurants apparently agree to participate in the plan for the exposure it provides them to the dining public.

All a member has to do to obtain the free meal available to club members is to present a membership card where dining. The card is then punched by the restaurateur to whom the card is presented in order to indicate that the club member has exhausted the privilege at that particular restaurant. Memberships in the plaintiffs club are generally for a period of one year, are not transferable, and may be renewed upon the payment of an additional fee.

Prior to January 15,1985, the defendant department of revenue services did not tax the sale of dining club cards. It did, however, require a restaurant serving a free meal to a club member to collect the sales tax on the value of that meal. On December 20, 1984, the defendant issued Bulletin No. 24 that effectively eliminated the sales tax on free meals as of January 15, 1985. Thereafter, on February 20, 1985, the defendant informed the plaintiff that “the sale of the Dine Out Tonight Club Card [was] a sale of tangible personal property under Chapter 219, [General Statutes § 12-407 (2) (a)].” On January 13, 1986, the defendant in a letter to plaintiffs counsel affirmed its position that the sale of the plaintiff’s membership card constituted “the sale of tangible personal property and as such is subject to the Connecticut Sales and Use Tax.”

On February 7,1986, the plaintiff brought this action in the Superior Court wherein it contended that it was not engaged in the sale of tangible personal property and asked the court to render a declaratory judgment to that effect. Subsequently, on September 22, 1986, the defendant issued a revised Bulletin No. 24 that reiterated its position that the value of free meals provided by restaurants involved in plans such as the plaintiff’s were not taxable but that sales of dining out cards were taxable. The trial court deferred “to the commissioner’s interpretation of ‘dining out’ cards as tangible personal property” and ruled that the sale of the cards constituted “a sale of tangible personal property within the meaning of Conn. Gen. Stat. § 12-407 (13) and § 12-408.” We disagree.

Only the sale of tangible personal property at retail is subject to the imposition of the Connecticut sales tax. General Statutes §§ 12-407 (3) and 12-408; Interna tional Business Machines Corporation v. Brown, 167 Conn. 123, 130, 355 A.2d 236 (1974). Tangible personal property is defined as “personal property which may be seen, weighed, measured, felt or touched or which is in any other manner perceptible to the senses.” General Statutes § 12-407 (13). Therefore, if what the plaintiff sells, and what its members purchase, is a membership card and a restaurant directory, the plaintiff is engaged in the retail sale of tangible personal property and its transactions are subject to the imposition of a sales tax. General Statutes § 12-408 (1). The Connecticut sales tax does not, however, extend to the sale of intangible rights. General Statutes §§ 12-407 (3) and 12-408; International Business Machines Corporation v. Brown, supra. If, therefore, what the plaintiff sells, and what its members purchase, is the intangible right to free meals and knowledge of the restaurants that provide them, the club membership fees are not subject to the imposition of the Connecticut sales tax.

A conclusion as to whether the sales tax is applicable to the plaintiff’s membership fees requires a determination of the true object of the transaction between the club and its members. American Totalisator Co. v. Dubno, 210 Conn. 401, 406, 555 A.2d 414 (1989); Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 609-10, 410 A.2d 457 (1979); United Aircraft Corporation v. Connelly, 145 Conn. 176, 184-85, 140 A.2d 486 (1958); United Aircraft Corporation v. O’Connor, 141 Conn. 530, 537-38, 107 A.2d 398 (1954); Culligan Water Conditioning v. State Board of Equalization, 17 Cal. 3d 86, 96, 550 P.2d 593, 130 Cal. Rptr. 321 (1976); Federated Department Stores, Inc. v. Lindley, 8 Ohio St. 3d 35, 37, 456 N.E.2d 1209 (1983); Accountant’s Computer Services, Inc. v. Kosydar, 35 Ohio St. 2d 120, 131-32, 298 N.E.2d 519 (1973). We must therefore ascertain whether the true object of that transaction is to provide club members with a card and a directory or to bestow upon them the intangible right to free meals under specified conditions. See Columbia Pictures Industries, Inc. v. Tax Commissioner, supra, 607. The determinant is the intention of the parties. United Aircraft Corporation v. O’Connor, supra. We think that intention is evident. Obviously, prospective club members are not enticed to pay the plaintiff for the prospect of obtaining a card and a directory, items that would be of little or no value without the concomitant right to receive free meals. Conversely, the plaintiff could not expect to stay in business by offering for sale only a card and a directory. Manifestly, the sine qua non of the transaction between the club and its members is the intangible right to receive free meals and access to the knowledge of an expanding list of restaurants that provide them. United Aircraft Corporation v. O’Connor, supra, 539. The membership card and directory are merely indicia of that intangible right and incidental aids to its exercise. See White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 422, 503 A.2d 582 (1986); United Aircraft Corporation v. O’Connor, supra; Comptroller v. Washington National Arena, 66 Md. App. 416, 426, 504 A.2d 666 (1986); Spencer Gifts, Inc. v. Taxation Division Direc tor, 182 N.J. Super. 179, 200-205, 440 A.2d 104 (1981); Commerce Union Bank v. Tidwell, 538 S.W.2d 405, 408 (Tenn. 1976). Because the transaction between the plaintiff club and its members is essentially the conveyance of an intangible right to free meals, the plaintiffs membership fees are not subject to the imposition of the Connecticut sales tax.

There is error, the judgment is set aside and the case is remanded to the trial court with direction that judgment be rendered for the plaintiff.

In this opinion the other justices concurred.

       General Statutes § 12-407 (2) (a) provides in pertinent part: “definitions. Whenever used in this chapter ....
      “(2) ‘Sale’ and ‘selling’ mean and include: (a) Any transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration . . . .”

       The letter mistakenly referred to “coupon books” rather than membership cards.

       This issue had not previously been subjected to judicial scrutiny, was not the subject of a legislatively approved regulation and was not a time tested interpretation of the statute. Therefore, the defendant’s interpretation of the statute as evidenced by revised Bulletin No. 24 was not entitled to special deference. See Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 129-30, 527 A.2d 672 (1987); Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987).

       General Statutes § 12-407 (13) provides: “definitions. Whenever used in this chapter:
      * * *
      “(13) ‘Tangible personal property’ means personal property which may be seen, weighed, measured, felt or touched or which is in any other manner perceptible to the senses.”

       The trial court was relying on General Statutes § 12-408 (1) which states in part: “the sales tax. (1) imposition and rate of sales tax. For the privilege of making any sales as defined in subsection (2) of section 12-407, at retail, in this state for a consideration, a tax is hereby imposed on all retailers a the rate of seven and one-half per cent of the gross receipts of any retailer from the sale of all tangible personal property sold at retail or from the rendering of any services constituting a sale in accordance with subdivision (i) of subsection (2) of section 12-407 . . . .”

       General Statutes § 12-407 (3) provides in pertinent part: “definitions. Whenever used in this chapter ....
      “(3) ‘Retail sale’ or ‘sale at retail’ means and includes a sale for any purpose other than resale in the regular course of business of tangible personal property or a transfer for a consideration of the occupancy of any room or rooms in a hotel or lodging house for a period of thirty consecufive calendar days or less, or the rendering of any service described in any of the subdivisions of subsection (2) of this section. The delivery in this state of tangible personal property by an owner or former owner thereof or by a factor, if the delivery is to a consumer pursuant to a retail sale made by a retailer not engaged in business in this state, is a retail sale in this state by the person making the delivery. He shall include the retail selling price of the property in Ms gross receipts.”

       Because the question posed by this case concerns the imposition of a tax, the taxing statute must be strictly construed against the taxing authority and in favor of the taxpayer. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588, 522 A.2d 771 (1987). Further, any ambiguity should be resolved in favor of the taxpayer and against the taxing authority. Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Joseph Mattioli
    (13501)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued February 7
    decision released April 4, 1989

      Norton P. Feinstein, with whom was Lionel A. DeSilva, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Steven Weiss, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

General Statutes § 14-227a (h) (3), provides enhanced penalties for a third conviction of driving under the influence of alcohol “within five years after a prior conviction.” The dispositive issue in this appeal is whether these enhanced penalties apply to the third conviction of a defendant when only one of his two prior convictions occurred “within five years” of his present conviction. We conclude that they do.

The defendant was arrested on November 27, 1987, and charged with driving under the influence of alcohol pursuant to General Statutes § 14-227a. The defendant pleaded not guilty. On March 14, 1988, the state filed a second part to the information, charging the defendant with being a third offender pursuant to § 14-227a (h) (3). The defendant had previously been convicted of violating § 14-227a on March 14,1983, and on October 11, 1983. On March 17, 1988, the defendant filed a motion to dismiss the state’s allegation of a third offense, which the trial court denied. The defendant subsequently entered a plea of nolo contendere to both parts of the information, conditioned on his right to appeal from the denial of his motion to dismiss the second part of the information. He was sentenced to a term of one year imprisonment, suspended after 120 days, and three years probation, was ordered to participate in an alcohol treatment program and was fined $1000. From this judgment, the defendant appeals.

The underlying facts are not at issue. The defendant contends that he could not be charged as a third offender pursuant to § 14-227a (h) (3) because his third conviction for violating § 14-227a did not occur within five years of his first conviction for violating the statute. The trial court held, however, in support of the state’s position to the contrary, that the language of § 14-227a (h) (3), which speaks of a third conviction “within five years of a prior conviction” (emphasis added), does not require that the third conviction be within five years of all prior convictions. We agree with the trial court.

Our interpretation of the requirements of § 14-227a (h) (3) is informed by “well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); see Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988); State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986) (interpreting effect of amendment of § 14-227a); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. To determine the intent of the legislature, we first consider whether the statutory language “yields a plain and unambiguous resolution.” State v. Champagne, supra; Rhodes v. Hartford, supra; see State v. Kozlowski, supra, 673-74. “If the words are clear and unambiguous, ‘it is assumed that [they] express the intention of the legislature’; Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); and we need inquire no further. Hayes v. Smith, [194 Conn. 52, 58, 480 A.2d 425 (1984)]; Doe v. Manson, [183 Conn. 183, 186, 438 A.2d 859 (1981)].” State v. Kozlowski, supra, 674; see also 2A J. Sutherland, supra, § 48.01. The words of a statute must be “interpreted according to their ordinary meaning unless their context dictates otherwise.” Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988); State v. Burney, 189 Conn. 321, 326, 455 A.2d 1335 (1983). If the language is ambiguous, the ambiguity is “normally resolved by turning for guidance to the legislative history and the purpose the statute is to serve.” State v. Champagne, supra; see also Capalbo v. Planning & Zoning Board of Appeals, supra; State v. Kozlowski, supra, 673.

The language of § 14-227a (h) (3), interpreted according to the ordinary meaning of its words, plainly states that it applies to a “conviction of a third violation within five years after a prior conviction . . . .’’There is no dispute that this is the defendant’s third conviction for violating § 14-227a. It is also undisputed that this third conviction occurred within five years of a previous conviction, on October 11, 1983, for violating § 14-227a. The most recent conviction is, therefore, a “conviction of a third violation within five years after a prior conviction” that subjects the defendant to the enhanced penalties provided by § 14-227a (h) (3).

This interpretation of § 14-227a (h) (3) finds further support in the final sentence of § 14-227a (h), which defines the prior offenses that may give rise to enhanced penalties. The final sentence states that conviction for violating the “provisions of subsection (a) of section 14-227a in effect on October 1, 1981, or as amended thereafter . . . shall constitute a prior offense” for the purposes of § 14-227a. (Emphasis added.) The defendant’s 1983 conviction for violation of § 14-227a clearly falls within this statutory definition of a “prior offense” for the purposes of § 14-227a (h) (3).

We note, furthermore, that to the extent that the scope of § 14-227a (h) could be considered ambiguous, our interpretation is consistent with the statute’s legislative history and purpose. To determine legislative intent, “it is often useful to examine the title of a proposed bill; Cairns v. Shugrue, [186 Conn. 300, 308, 441 A.2d 185 (1982)]; and the purpose the legislature intended to accomplish by its enactment. Dukes v. Durante, [192 Conn. 207, 214, 471 A.2d 1368 (1984)] . . . .” State v. Kozlowski, supra, 678. Significantly, Public Acts 1985, No. 85-387, which amended § 14-227a in 1985 to incorporate the language at issue in this case, was entitled “An Act Increasing Imprisonment Penalties for Drunk Driving to Meet the Federal Standards.” Although the legislative history does not expressly address the statute’s five year period, this provision was part of a statutory package that enhanced mandatory minimum sentences for both first and multiple offenders and increased penalties for each successive offense. In enacting Public Acts 1985, No. 85-387 so as to amend § 14-227a, the legislature clearly intended to provide harsher penalties for offenders with a history of driving while under the influence.

The defendant’s principal response to this straightforward interpretation of § 14-227a (h) is that such an interpretation would allow the “irrational and bizarre result that a person can be a ‘third’ offender without ever being a ‘second’ offender.” We recognize that, under our interpretation, an enhanced penalty might follow despite a lengthy interval between a first and second conviction, if a third conviction came on the heels of the second. We are unpersuaded that this result is either irrational or bizarre. As written, § 14-227a (h) (3) allows a person to be adjudged a third offender only after three convictions for violation of the statute. The statute makes the fact of a prior second conviction, rather than the status of being a prior second offender, the touchstone for an enhanced penalty. The legislature was free to make such a choice.

The defendant also contends that the statute is ambiguous and vague. A statute must be sufficiently clear to give fair notice of the conduct that it forbids. State v. Tyson, 195 Conn. 326, 332, 487 A.2d 1091 (1985); see United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954). Honest disagreement about the interpretation of a statutory provision does not, however, make the statute ambiguous or vague. Because § 14-227a (h) clearly provides an enhanced penalty for a violation of § 14-227a within five years of a second conviction for violation of that section, this argument is without merit.

The defendant’s final attack on our interpretation of § 14-227a (h) relies on the principle that penal statutes must be strictly construed against the state and liberally construed in favor of the accused. While we agree with this principle; State v. Champagne, supra, 430; State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983); under any reasonable rule of construction, we conclude that the legislature could and did provide for an enhanced penalty for repeated violations of § 14-227a. The legislature was not obligated to limit the time period during which a first offense might be considered relevant to the sanctions imposed for a third violation of the statute. In the related case of enhanced penalties for persistent dangerous felony offenders, the legislature likewise authorized increased sanctions for prior misconduct without a time limitation for the earlier conviction. General Statutes § 53a-40 (a). Accordingly, we hold that this defendant’s conduct fell within the ambit of § 14-227a (h) (3) and his motion to dismiss the third offender charge against him was properly denied.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 14-227a (h) provides in part: “penalties FOR OPERATION WHILE UNDER THE influence. Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within five years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years .... For purposes of the imposition of penalties for a second, third or fourth and subsequent offense pursuant to this subsection, a conviction under the provisions of subsection (a) of section 14-227a in effect on October 1, 1981, or as amended thereafter, and a conviction under the provisions of either subdivision (1) or (2) of subsection (a) of this section shall constitute a prior offense.”
      General Statutes (Rev. to 1987) § 14-227a (a) provides: “operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       We note that General Statutes § 14-227a (h) (3) deals only with the enhancement of penalties and does not affect the statute of limitations for violations of § 14-227a.

       It is unnecessary to determine whether the language means that the period runs from conviction to conviction or from conviction to violation. Both the violation and the conviction for the third violation occurred within five years of the second conviction.

       See footnote 1, supra.

       The only reference to the five year time limit occurred during the House of Representatives proceedings. Representative Richard D. Tulisano referred to the five year limit in response to a comment voicing concern regarding prison overcrowding. See 28 H.R. Proc., Pt. 19,1985 Sess., pp. 7039-40.

       General Statutes § 53a-40 (a) provides in relevant part: “A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping . . . and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes . . . (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72 ... or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9 ... or any predecessor statutes in this state, or an attempt to commit any of said crimes . . . .” (Emphasis added.)


author: Per Curiam.

text:
    Charles McGowan v. General Dynamics Corporation/Electric Boat Division et al. Sebastian Semataro v. General Dynamics Corporation/Electric Boat Division et al.
    (13520)
    (13519)
    Peters, C. J., Callahan, Covello, Hull and Ment, Js.
    Argued March 8
    decision released April 4, 1989

      Stephen C. Embry, for the appellant (plaintiff in the first case).

      Matthew Shafner, with whom, on the brief, were Carolyn P. Kelly and Mark Oberlatz, for the appellant (plaintiff in the second case).

      Lucas D. Strunk, with whom, on the brief, was James L. Pomeranz, for the appellees (defendants in both cases).
   Per Curiam.

These joint appeals involve the relationship of disability benefits under two overlapping statutes, the federal Longshore and Harbor Workers’ Compensation Act (LHWCA) and the Connecticut Workers’ Compensation Act. The plaintiffs, Charles McGowan and Sebastian Semataro, were each injured while working for the defendant, General Dynamics Corporation/Electric Boat Division. Each plaintiff collected benefits under LHWCA relating to his injury that exceeded, in their totality, the amount to which each plaintiff was entitled under workers’ compensation. Each then claimed an entitlement to recover additional scarring benefits, pursuant to General Statutes § 31-308 (d), despite the general rule that payments under one compensation scheme are to be credited against benefits collectible under the other. Because LHWCA’s compensation scheme does not include awards for scarring, the workers’ compensation commission held additional benefits for this separate category to be separately compensable. The defendants were unsuccessful in their appeal of these scarring awards to the compensation review division.

On further appeal to the Appellate Court, the defendants prevailed in their contention that the awards for scarring were improper because a category by category credit scheme would result in impermissible double recovery in violation of federal law. McGowan v. Gen eral Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615, 618-25, 546 A.2d 893 (1988). We granted certification limited, in each appeal, to the following issue: “Did the Appellate Court correctly conclude, in the circumstances of this case, that disability benefits paid under LHWCA should be credited against the plaintiff’s Connecticut disability benefits?” McGowan v. General Dynamics Corporation/Electric Boat Division, 209 Conn. 813, 550 A.2d 1083 (1988); Semataro v. General Dynamics Corporation/Electric Boat Division, 209 Conn. 814, 550 A.2d 1083 (1988).

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgments of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained.

Affirmed.

       The defendant’s insurer, Aetna Life and Casualty, is a codefendant in each appeal.


author: Covello, J.

text:
    State of Connecticut v. Stephen B. Zwirn
    (13216)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued December 13, 1988
    decision released April 4, 1989

      Donald R. Holtman, for the appellant (defendant).

      Robert J. Enright, special assistant state’s attorney, for the appellee (state).
   Covello, J.

On September 9, 1985, the defendant, Stephen Zwirn, was charged with two counts of the crime of sexual assault in the fourth degree, in violation of General Statutes § SSa-TSa, and two counts of the crime of risk of injury or impairing the morals of children, in violation of General Statutes § 53-21. On January 28, 1986, the trial court granted the state’s motion to videotape the alleged victims’ testimony outside the presence of the defendant. Each child so testified. On May 9, 1986, the defendant was convicted by a jury of two counts of risk of injury to children, and acquitted of two counts of sexual assault. The trial court, Brennan, J., sentenced the defendant to two and one-half years on each count, execution suspended, and three years probation on each count to run concurrently. The defendant appealed his conviction to the Appellate Court. We thereafter transferred the appeal to ourselves pursuant to Practice Book § 4023.

While this appeal was pending we remanded the matter to the trial court and ordered an evidentiary hearing addressing the criteria set forth in State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 932 (1988). Pursuant to this order the trial court, Schimelman, J., concluded that the state had not met its burden of proving that the defendant’s presence would have had an adverse effect on the children’s ability to testify truthfully.

On appeal, the defendant claims that the trial court erred: (1) in failing to instruct the jury that sexual impropriety or indecency was a requisite element of the predicate act that formed the basis for the charge of risk of injury to a child; (2) in denying the defendant’s motion for a judgment of acquittal which claimed that the evidence was insufficient to support a finding that any act of the defendant exposed the alleged victims to any risk of injury; and (3) in granting the state’s motion to videotape the children’s testimony. We agree with the defendant that the trial court erred in granting the state’s motion to videotape the alleged victims’ testimony. Accordingly, we remand for a new trial.

The jury could reasonably have found the following. The defendant was a former friend and lover of the victims’ mother. At the time of the alleged incidents, the children were eight and nine years old respectively. Between September, 1984, and April, 1985, the defendant occasionally picked up the children from school and took them shopping, out to eat or to his home. On more than one occasion the defendant put his hand down the victims’ “underpants in the back and moved his fingers around.” This activity took place in his car, in his house, and sometimes in the victims’ house. The defendant admits to the substantial accuracy of these facts, but claims that the acts were committed in a playful manner, not in a sexual or indecent manner as the state charges.

I

The defendant’s first claim is that the trial court erred in granting the state’s motion to videotape the testimony of the two victims. After the defendant’s brief had been filed and before oral argument, this court remanded the case to afford the trial court an opportunity to supplement the record addressing the criteria set forth in the recently decided State v. Jarzbek, supra. In Jarzbek we held that, in appropriate circumstances, it was constitutionally permissible to videotape the testimony of a minor victim outside the presence of the defendant. The state, however, must prove by clear and convincing evidence that the defendant’s presence would have an adverse effect on the child’s ability to testify truthfully. Id., 704. We also stated that “[i]f the court concludes [on remand] that the state has not met its burden of proving such a need by clear and convincing evidence, the defendant is entitled to a new trial from which the videotaped testimony of [the victims] must be excluded.” Id., 708.

At the evidentiary hearing in this case, the trial court, Schimelman, J., found that the state had not met “its burden of proof with respect to either child that the trustworthiness of his or her testimony would be seriously called into question by the physical presence of the defendant.” The state argues, however, that by admitting to the substantial veracity of the children’s testimony, the defendant waived his Jarzbek claim. We disagree.

The focus in State v. Jarzbek, supra, was on the trustworthiness of the minor victim’s testimony in the physical presence of the defendant. It was not, as the state’s argument implies, on the truthfulness of the videotaped testimony. Admission by the defendant of the veracity of the minor victims’ videotaped testimony is not equivalent to an admission that the testimony of the minor victims would not be trustworthy if given in the defendant’s presence. We find, therefore, the state’s argument to be without merit. Accordingly, there is error. See id., 708.

II

Because it is likely to arise at the defendant’s new trial we will address the defendant’s further claim of error. He argues that the trial court erred in its charge to the jury. The trial court instructed the jury that in order to find the defendant guilty of risk of injury to a child the state had to prove the following three elements: “Number one, that at the time of the incident, the alleged victims, and here we have two children . . . were under the age of 16. That’s the first one. And on the second one, the defendant did an act which was likely to impair the health or morals of the children, [and the third one, that] the defendant had the general intent to perform such an act.” The defendant contends that the charge failed to state that this crime requires an element of sexual impropriety or indecency in the predicate act which the state claims was allegedly committed by the defendant. We agree.

State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), “established] the governing standard for prosecutions involving likely moral impairment of a minor.” State v. Schriver, 207 Conn. 456, 465, 542 A.2d 686 (1988). Pickering made “ ‘it clear that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of ’ ” General Statutes § 53-21. (Emphasis added.) State v. Schriver, supra, 463, quoting State v. Pickering, supra, 64. Without the requirement that the act be done in a sexual and indecent manner, there would be no legal distinction between touching a child’s private parts in an innocent manner, e.g., for necessary medicinal or hygenic purposes, and touching a child’s private parts in a manner that violates the statute. It is not the act itself that is likely to impair the morals of a child, but the manner in which the act is performed.

The trial court erred, therefore, in failing to instruct the jury that, in order to convict the defendant of violating § 53-21, it must find proven beyond a reasonable doubt that the defendant touched the children’s private parts in a sexual and indecent manner. The further question remains as to whether this error was harmless.

“[T]he due process clause requires that every fact necessary to constitute the crime of which an accused stands charged must be proven beyond a reasonable doubt before a conviction.” State v. Haddad, 189 Conn. 383, 388-89, 456 A.2d 316 (1983).

“The court’s instructions on the offense charged must include every element of that offense.” State v. Griffin, 175 Conn. 155, 163, 397 A.2d 89 (1978). In order to charge the jury correctly with the elements necessary to constitute the offense of risk of injury to a child, the trial court should have stated that in order to convict the defendant, the jury had to find that the act committed was done in a sexual and indecent manner. This it did not do.

“When an error is of constitutional dimension, the state has the burden of proving it harmless beyond a reasonable doubt.” State v. Plourde, 208 Conn. 455, 468, 545 A.2d 1071 (1988), cert. denied, U.S. , 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989). The state did not address this issue in its brief or in oral argument. An examination of the record discloses, however, that this error was not harmless beyond a reasonable doubt.

“The defendant was entitled to have the jury correctly and adequately instructed on the pertinent principles of substantive law.” State v. Cooper, 182 Conn. 207, 210, 438 A.2d 418 (1980). “It cannot be considered harmless error for a jury ‘to find an accused guilty without even knowing what are the essential elements of the crimes charged.’ ” State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984), quoting State v. Griffin, supra, 162-63. Even if the Jarzbek issue were not present, a new trial would be necessary because of the deficiencies in the jury instructions. See State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985); State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982).

Ill

The defendant further claims that the trial court erred in denying his motion for acquittal because the evidence was insufficient to support a finding that any of his acts subjected the alleged victims to any risk of injury. He argues that the state failed to prove that his acts were done in a sexual and indecent manner. Since a new trial would be barred on grounds of double jeopardy if the state had not produced sufficient evidence at this trial, we will also consider this claim of error.

As previously noted, the defendant had contact with the alleged victims on a number of occasions in a number of different circumstances and had placed his hand down their pants and “moved his fingers around.” The defendant claimed this to be a form of horseplay. On the basis of its assessment of what was done, the number of times it was done and the acccompanying circumstances, a jury could have found that these acts at some point rose to the level of the sexual and indecent conduct prohibited by the statute. We therefore conclude that a factual basis existed within the evidence offered to have found the defendant guilty of violating § 53-21.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other justices concurred.

       General Statutes § 53a-73a provides: “SEXUAL ASSULT in the fourth degree: class a misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent, or (3) such person engages in sexual contact with an animal or dead body.
      “(b) Sexual assault in the fourth degree is a class A misdemeanor.”

       General Statutes § 53-21 provides: “injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant argues in addition that the trial court erred: (1) by permitting the older sister of the alleged victims to be present at the videotaping of their testimony without any showing of justifying circumstances; (2) in excluding the testimony of third persons as to conversations they had had with the defendant regarding the children as tending to show that the defendant’s attitude toward the children was inconsistent with guilt; (3) in overruling the defendant’s objection to a proffer of evidence by the state tending to show possible prior inconsistent statements on wholly collateral matters not inquired into on direct examination of the defendant; (4) in permitting the state to amend the information after both the state and the defendant had rested their cases-in-chief; and (5) in allowing hearsay testimony under the constancy of accusation exception to the hearsay rule when the defendant was not contesting the substantial accuracy of the facts testified to by the minor witnesses. As these remaining claims may not arise in the course of a new trial, we decline to consider them at this juncture.

       Our opinion on this issue is simply a reaffirmation of our position in State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), i.e., that in order to convict a defendant of violating General Statutes § 53-21 the state must prove that the predicate act was committed in a sexual and indecent manner. We are not suggesting, however, that the state must prove that the defendant committed the act with the specific intent to impair the morals of a child. This position, therefore, is consistent with our holding in State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988), and the cases cited therein.


author: Coyello, J.

text:
    Board of Education of the Town of Somers et al. v. Freedom of Information Commission et al.
    (13546)
    (13547)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued January 10
    decision released April 4, 1989

      William R. Connon, for the appellants in both cases (plaintiffs).

      Mitchell W. Pearlman, general counsel, with whom were Constance L. Chambers, assistant general counsel, and, on the brief, Marianne D. Smith, former assistant general counsel, for the appellee in both cases (named defendant).
   Coyello, J.

The dispositive issue in these appeals is whether documents that (1) describe the goals and objectives of Somers school administrators, and (2) evaluate and otherwise comment on the job performance of Somers public school employees must be disclosed to the public at large under General Statutes § 1-19. On May 11, 1983, The Journal Inquirer requested access to all the documents in the possession of the school superintendent of the town of Somers that describe the goals and objectives of Somers school administrators. These goals and objectives are part of an evaluation procedure used to promote professional growth in the Somers school system. On August 12, 1983, The Journal Inquirer submitted a second request, this time for access to all documents in the possession of the school superintendent relating to evaluations of the school system’s employees. After both requests were denied, The Journal Inquirer filed complaints with the Freedom of Information Commission (FOIC) alleging that the board of education of the town of Somers (board) violated the Freedom of Information Act by refusing to disclose the requested documents. The board disputed this contention and argued that the requested documents were exempt from disclosure under § 1-19 (b) (2). In two separate decisions the FOIC ordered the board to release all of the requested documents.

Pursuant to General Statutes § 1-2 li (d), the plaintiffs appealed the FOIC’s orders to the Superior Court. During the pendency of those appeals, the General Assembly enacted legislation addressing part of the specific dispute now before us. Public Acts 1984, No. 84-276, § 1 (codified at General Statutes § 10-151c), made it clear that records of teacher performance and evaluations are not public records and therefore are not subject to disclosure under § 1-19.

On April 14,1988, the trial court affirmed the FOIC’s decisions and rendered judgment in each case dismissing these appeals. On May 5, 1988, the plaintiffs appealed the trial court’s decisions to the Appellate Court and the two cases were consolidated. We thereafter transferred the appeals to ourselves pursuant to Practice Book § 4023.

On appeal the plaintiffs argue that the trial court erred: (1) in failing to conclude that the requested documents that evaluate or otherwise comment on teacher performance fall within the exemption created by § 10-151c; and (2) in concluding that all of the documents that comment on or evaluate the job performance of any and all employees are not exempt from disclosure under § 1-19 (b) (2).

I

The plaintiffs first argue that the trial court erred in failing to apply retroactively § 10-151c which specifically exempts from disclosure teacher evaluations and records. We agree.

“In determining the intended effect of a later enactment on earlier legislation, two questions must be asked. ‘First, was the act intended to clarify existing law or to change it? Second, if the act was intended to make a change [in existing law], was the change intended to operate retroactively?” (Emphasis added.) Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985).” State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987). In light of its legislative history we are persuaded that General Statutes § 10-151c was intended to clarify,, not change, existing law. For example, Representative Michael Helfgott stated: “In my opinion, the FOI commission exceeded its authority in rendering the decision that it recently rendered saying that the public has access to teacher evaluation files. . . . [I]t’s my understanding that all evaluations are private documents, they’re privileged, and that in fact the public should not have access to that. I would say again that in my opinion the FOI exceeded its authority. . . . [TJhis Bill simply does not break new ground, but merely keeps us on the ground in which we always were.” (Emphasis added.) 27 H.R. Proc., Pt. 7, 1984 Sess., pp. 2547-48. This history reveals that the purpose of Public Acts 1984, No. 84-276 was to clarify the earlier legislative intent of § 1-19 (b) (2). In light of this conclusion we do not reach the second question posed above, i.e., whether the act was intended to apply retroactively.

“[A] clarifying act, which ‘in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.’ ” State v. Blasko, 202 Conn. 541, 557, 522 A.2d 753 (1987); see also Darak v. Darak, 210 Conn. 462, 471, 556 A.2d 145 (1989). “Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect.” State v. Magnano, supra, 284.

Accordingly, we conclude that General Statutes § 10-151c, which specifically exempts from disclosure teacher evaluations and records, is to be applied to affect the FOIC’s decisions in this case. Therefore, we vacate the trial court’s judgments and remand with direction to sustain the plaintiffs’ appeals with respect to the teacher evaluations and records as well as the requested goals and objectives.

II

The plaintiffs next claim that the trial court erred in concluding that the remainder of the requested documents are public records not exempt from disclosure under § 1-19 (b) (2). These remaining documents include personnel files of all of the noncertified employees as well as the personnel files of the superintendent and board members.

“The plaintiffs must meet a twofold burden of proof to establish the applicability of the § 1-19 (b) (2) exclusion. First, they must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or ‘similar’ files. Second, they must show that disclosure of the records ‘would constitute an invasion of personal privacy.’ ” Hartford v. Freedom of Information Commission, 201 Conn. 421, 431-32, 518 A.2d 49 (1986). Both parties agree that the requested documents are “personnel” files within the meaning of § 1-19 (b) (2), They disagree, however, over whether disclosure of the requested documents would constitute an invasion of personal privacy.

Although the act does not specifically define “invasion of personal privacy,” “the propriety of disclosing information in a personnel file is governed by balancing the need for disclosure ‘against the public policy in favor of the confidentiality of private and personal information.’ ” Id., 433 n.14, quoting State v. Januszewski, 182 Conn. 142, 172, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). In its findings the FOIC stated that it had balanced the employees’ right of privacy against the public’s interest in the performance of its employees and concluded that disclosure of the requested documents would not constitute an invasion of personal privacy. In issuing the blanket order that the board was to release the requested documents along with “any other type of document” that evaluates the employees’ job performance, the FOIC failed to analyze any specific document with respect to any individual employee or even any category of employee.

By failing to examine and analyze properly the competing interests to determine whether the documents in question would constitute an invasion of personal privacy, the FOIC has attempted to have the general rule of disclosure consume its legislatively enacted exceptions. There is a clear difference between the public’s interest in a superintendent’s evaluation and the evaluation of a school cafeteria worker. Arguably there is also a difference between an individual’s privacy interest in a formal evaluation by a supervisor and a person’s interest in an unsubstantiated complaint made by an angry coworker. Yet in resolving this case there is nothing in the record to indicate that the FOIC made these distinctions as the plaintiffs requested.-

There is error, the judgments are set aside and the case is remanded to the trial court with direction to order the FOIC to carry out the balancing test through an in camera inspection of each of the requested records as well as for consideration of any further evidence the parties may submit.

In this opinion the other justices concurred.

       General Statutes § 1-19 provides in part: “access to public records, exempt records, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.”

       General Statutes § 1-19 (b) (2) provides: “Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

       The FOIC, however, exempted from this order records that might have contained references to persons other than the employees.

       General Statutes § 10-151c provides: “RECORDS OF TEACHER performance and evaluation not public records. Any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-19, provided that any teacher may consent in writing to the release of his records by a board of education. Such consent shall be required for each request for a release of such records. For the purposes of this section the term ‘teacher’ shall include each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the state board of education.”

       Further, Representative Dorothy Goodwin stated: “We are not interested in the gossipy concern of newspaper reporters who sometimes seek to do a lot of destructive things in the kinds of reporting they engage [in]. This is a personnel record. It should be protected on the same basis as any personnel record.” 27 H.R. Proc., Pt. 8, 1984 Sess., pp. 2943-44.


author: Shea, J. Peters, C. J.,

text:
    City of New Haven v. New Haven Police Union Local 530 et al. City of New Haven v. Board of Labor Relations et al.
    (13462)
    (13463)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued January 10
    decision released April 4, 1989

      MartinS. Echter, deputy corporation counsel, for the appellant in both cases (plaintiff).

      Jackson T. King, with whom, on the brief, was Susan King Shaw, for the appellees in both cases (defendant New Haven Police Local 530 et al.).

      Joseph M. Celentano, assistant counsel, for the appellee in both cases (defendant state board of labor relations).
   Shea, J.

Both of these appeals arise out of a dispute between the plaintiff city of New Haven and the defendant police union, concerning a decision of the city to cease the use of full-time policemen performing extra duty for the purpose of providing security at elderly housing sites operated by the city housing authority. In the first appeal, No. 13462, the city seeks review of a claimed interlocutory ruling by the Superior Court, Hon. Joseph W. Bogdanski, state trial referee, affirming a decision of the state board of labor relations (board) that the city, on February 25, 1981, had committed an unfair labor practice by failing to bargain collectively with the union before unilaterally using part-time policemen rather than full-time officers, who are represented by the union, as security personnel for elderly housing. In the second case, No. 13463, the city has appealed from a judgment of the Superior Court, Fracasse, J., upholding the March 11,1985 decision of the board concerning compliance with its orders that were the subject of the first appeal. With respect to the first appeal, we conclude that the city is barred from further review of the 1981 board decision and, therefore, dismiss that appeal. With respect to the second appeal, we find error in the trial court’s conclusion that the 1985 board decision was a proper implementation of the 1981 decision and remand for further proceedings before the agency.

The findings of the board as set forth in its 1981 decision are not disputed. In August, 1979, the city began to use full-time policemen as extra duty officers to provide security at thirteen elderly housing sites operated by the New Haven Housing Authority, a separate municipal entity. This change from the preceding security arrangement at these locations occurred when $250,000 of a federal community development grant became available for that purpose. Only full-time officers were used to provide these services until June 30, 1980, when the city ceased that practice and began to use part-time policemen for that purpose. During the negotiations between the city and the union for the collective bargaining agreement executed on June 6,1980, the amount of premium pay for extra duty assignments was one of the subjects discussed.

In May, 1980, after the city learned that the federal grant for the fiscal year beginning July 1,1980, would be reduced, its board of aldermen decided that none of the community development funds should be used to provide security personnel for elderly housing. The board of aldermen voted, nevertheless, to appropriate $125,000 from other city funds to help pay for such personnel. This sum was about half the amount that had been paid for the services of full-time policemen at the elderly housing sites in the fiscal year ending June 30, 1980. In order to provide as many security people as possible with the limited money available, the city began to use part-time police officers, who were not members of the bargaining unit represented by the defendant union, for protection of the elderly housing sites. These officers were not entitled to receive premium pay for this service, unlike the full-time policemen who had been used for this purpose from August, 1979, to July, 1980. This change became effective on July 1,1980, and from that date until September, 1983, none of the full-time policemen represented by the union were assigned to elderly housing as extra duty.

On July 7,1980, the union filed a complaint with the board alleging that the city had engaged in an unfair labor practice by assigning to others the work that had previously been performed by members of the bargaining unit without first negotiating with the union. After a hearing the board concluded that the practice for the prior eleven months of using full-time police officers to provide security services for elderly housing had become a condition of the employment of full-time officers, and that the city had violated its duty to bargain in good faith concerning a change in such a condition prior to implementing it. The board, however, recognized that the decisions of the board of aldermen to allocate none of the federal funds received by the city to the protection of elderly housing and to limit the appropriation for this purpose to $125,000 from general city funds were “political and managerial,” and that the city was entitled to make such decisions unilaterally without prior bargaining with the union. Nevertheless, it was held that, although the city could have limited the bargaining to the $125,000 that had been appropriated, it had breached its statutory duty to bargain collectively by failing to negotiate with the union before ceasing entirely to use bargaining unit members for this employment. See General Statutes §§ 7-469, 7-470 (a) (4) and (c). The board issued a cease and desist order and also specified several affirmative acts to be performed by the city ancillary to that order, including the obligation to compensate the policemen who had been deprived of the elderly housing extra duty assignments. Jurisdiction over the matter was retained by the board for the purpose of determining the amount of compensation due these officers in the event that the parties should fail to reach an agreement on that issue.

The city appealed the 1981 board decision to the Superior Court, which court, Hon. Joseph W. Bogdanski, state trial referee, on July 26, 1983, affirmed the conclusion reached by the board that the city had breached its statutory duty to bargain with the union before making the elderly housing assignments unavailable as extra duty for full-time policemen. No appeal was taken from this judgment.

The parties returned to the board for further proceedings relating to compliance with the portion of the 1981 decision ordering the city to compensate those policemen who had been deprived of the opportunity to perform extra duty work at the elderly housing sites “for the loss they suffered.” On March 11,1985, the board issued its “decision on compliance,” which upheld the union’s position on most of the disputed issues.

The city appealed the 1985 decision to the Superior Court on the ground that the board had ruled erroneously on issues involved in the calculation of the back pay to be awarded to those policemen claiming to have suffered losses because of the termination of elderly housing extra duty assignments after July 1,1980. The court, Mancini, J., on October 25, 1985, granted motions of the defendants to dismiss this appeal on the ground that the city should have raised the issues forming the basis for the appeal at the time it had appealed from the 1981 board decision and that the city was barred by the principle of res judicata from seeking further review of those issues after the court had affirmed the 1981 decision and no appeal from that judgment had been filed. The city appealed this judgment of dismissal to the Appellate Court, which set aside the judgment and remanded the case for further proceedings. New Haven v. Board of Labor Relations, 9 Conn. App. 546, 548, 520 A.2d 245 (1987). The Appellate Court held that “[t]he reservation by the board, in its initial decision, of the determination of the amounts due under that decision operated to exempt that aspect of this litigation from the doctrine of res judicata.” Id., 547-48.

On remand, the trial court, Fracasse, J., considered the appeal on its merits and on March 3,1988, affirmed the 1985 board decision, concluding that the board had not exceeded its authority to fashion an appropriate remedy for the city’s violation of its duty to bargain. The court specifically rejected the contentions of the city that the total compensation award should be limited to the $125,000 appropriation concerning which the duty to bargain had been found, that the records of prior employment at the elderly housing sites for the individual officers claiming compensation should have been considered in determining the amounts they had lost, and that a deduction should be made for the earnings of each claimant from other extra duty work performed after July 1, 1980, in calculating his loss from the unavailability of the elderly housing assignments. From this judgment the city appealed to the Appellate Court claiming that: (1) the 1981 board decision establishing its liability was erroneously affirmed by the trial court; and (2) the trial court erred in affirming the 1985 board decision on compliance because the board had failed to take into account several highly significant factors for determination of the appropriate compensation for each claimant. The appeal has been transferred to this court pursuant to General Statutes § 51-199 (c).

I

In seeking at this time review of the 1981 board decision, which not only found that the city had failed to perform its statutory duty to bargain but also ordered various relief, including a direction to compensate the officers affected, the city claims that the decision was interlocutory because of the provision retaining jurisdiction in the board to determine later the amounts of compensation due. The city relies upon several cases, not involving administrative appeals, in which we have held that a judgment resolving the issue of liability but leaving the issue of damages or other relief undecided is not a final judgment from which an appeal lies. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84-85, 495 A.2d 1063 (1985); Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980); Palmer v. Hartford National Bank & Trust Co., 157 Conn. 597, 253 A.2d 28 (1968). These authorities are readily distinguishable from the present case, however, because the 1981 board decision includes various forms of relief related to the violation of the duty to bargain, as well as a declaration of the manner in which the policemen affected by that breach of duty are to be compensated.

The considerations underlying the requirement of finality of an agency decision as a prerequisite to judicial review are akin to those involved in the ripeness doctrine as applied to administrative rulings. “[I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). “The cases dealing with judicial review of administrative actions have interpreted the ‘finality’ element in a pragmatic way.” Id., 149. “[T]he relevant considerations in determining finality are whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 27 L. Ed. 2d 203 (1970).

The 1981 board decision satisfies these criteria for a final decision of an agency. No further administrative proceedings were contemplated except with respect to implementation of the compensation provision of the order, in the event that the parties were unable to reach agreement. The cease and desist provision, directing that elderly housing security assignments be given to full-time officers, the requirement that notice of the decision and order be posted and the mandate that the board be notified within thirty days of the steps taken to comply with the order would have become effective immediately in the absence of an appeal. Implicitly the city, by appealing from the 1981 order, and the board, by not seeking to dismiss that appeal as premature, recognized that it would not “disrupt the orderly process of adjudication,” that “rights or obligations [had] been determined” and that “legal consequences [would] flow from the agency action.” Id., 71.

Furthermore, appeals from decisions of the board are governed by the Uniform Administrative Procedure Act, General Statutes §§ 4-166 through 4-189. General Statutes § 4-180 of the act requires that an agency “in all contested cases shall render a final decision within ninety days following the close of evidence or the due date for filing of briefs in such proceedings.” (Emphasis added.) No claim has been made that this provision has not been satisfied in the present case. It is only when a person is “aggrieved by a final decision in a contested case” that he may appeal to the Superior Court. (Emphasis added.) General Statutes § 4-183 (a). Such an appeal must be brought “within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice thereon.” (Emphasis added.) General Statutes § 4-183 (b).

We view our statutes as giving an agency discretion to limit in a practical way the scope of an administrative proceeding in a contested case, upon which a final decision must be rendered within the prescribed ninety day period, and, when appropriate, to reserve for further proceedings certain issues whose resolution may depend upon the outcome of those to be adjudicated initially. So long as the agency intends to render a final decision and the person taking the appeal is aggrieved by the decision rendered, the fact that other related issues are reserved for later adjudication does not necessarily detract from its finality. The reservation by the board of the issue of compensation of the individual officers, upon which no evidence had been presented at the hearing, therefore, did not render its decision interlocutory. Such a reservation was appropriate in this instance because the time required for adjudication of the numerous claims of the individual officers might well have delayed enforcement of the cease and desist order.

From our determination that the board decision was final and thus appealable, it follows that the judgment of the Superior Court in 1983 affirming that decision was also final and that the city could have appealed from that judgment. General Statutes § 4-184. Its failure to do so, or to exercise the option under Practice Book § 4002 to reserve its appeal until all of the issues had been disposed of by filing a notice of such reservation, precludes it from now challenging the basis for the 1981 board decision. Accordingly, the appeal in No. 13462 is dismissed.

II

The city claims that the 1985 board decision on compliance is erroneous because: (1) the total amount of compensation to be paid by the city should have been limited to $125,000, the amount of the appropriation for elderly housing security; and (2) the proposed award of compensation, based solely on whether a particular officer had signed up for extra duty on a date after July 1,1980, when he knew such work was unavailable, was wholly unreasonable. We agree with the city that the 1985 decision is erroneous in these respects.

A

In its 1981 decision the board concluded that, although the city was faced with the need to cut in half the amount spent for elderly housing security, its duty to bargain remained, but the city could have controlled its parameters. “It could in this case, for instance, have insisted that all bargaining be conducted within the $125,000 limit set by the appropriation.” In a footnote referenced to this sentence, the board declared as follows: “The seeking of additional appropriation may be a permissive subject of bargaining but it is not mandatory under the circumstances of this case.” The basis for this limitation on the scope of the city’s duty to bargain was the board’s conclusion that the decision of the board of aldermen to appropriate $125,000 for security at elderly housing sites was “political and managerial.”

Although the 1981 decision in ordering relief does not expressly limit the city’s liability to $125,000, the order relating to compensation directed the city only to “make whole those officers who requested the work after July 1, 1980 . . . and who were denied the opportunity to perform such work for the loss they suffered because of such denial.” (Emphasis added.) We construe this directive to “make whole” as intended to compensate the affected policemen for the loss they suffered from the breach of the city’s duty to bargain, which the board in 1981 concluded was limited to the $125,000 appropriation for elderly housing security. Since the city had no duty to bargain except within the amount of that appropriation, it follows that the losses suffered from the breach of that duty must reasonably be limited to that amount. The contrary view is wholly illogical and inconsistent with the 1981 board decision that the measure of compensation to the policemen should be the loss they suffered from the breach of the city’s duty to bargain over the manner in which the $125,000 appropriation should be expended.

We need not address the contention of the union that the authority of the board under General Statutes § 7-471 (4) (B), after finding an unfair labor practice has been committed, to “take such further affirmative action as well as effectuate the policies” of the statutes pertaining to collective bargaining, would have justified a compensation award exceeding the $125,000 limit of the city’s duty to bargain, as found in the 1981 board decision. If the board at that time had intended to impose such an extraordinary remedy, we presume it would have said so expressly. We have construed the order to “make whole” the policemen who suffered losses from the city’s breach of its obligation to bargain as intended to give them only the same compensation they would have received if the city had fulfilled its duty, which was limited to the amount of the appropriation. The 1985 board “decision on compliance,” which found that “there has been no failure to comply” with the cease and desist provision of the 1981 decision, did not purport to impose any additional remedy for the city’s breach, but attempted merely to clarify the compensation part of the order. There is no reason for this court to give special deference to the board’s 1985 interpretation of its 1981 decision, because the construction of an administrative determination finalized by a judgment of this court on appeal, as in this case, is uniquely a question of law for the court.

B

The 1981 board order to compensate “those officers who requested the work after July 1, 1980,” referred to an exhibit consisting of the rosters that policemen interested in performing the extra duty work of providing security for elderly housing had signed each day to request an assignment at one of the thirteen locations. The practice of signing up for such work continued after the city had terminated the use of full-time policemen on July 1, 1980, and it was widely known that such assignments were no longer available. From this date of termination until September, 1983, when the city resumed the use of full-time policemen at elderly housing sites, many policemen regularly signed the roster to demonstrate their availability for these extra duty assignments, which they knew were nonexistent, in order to support their claims, which in total exceed $200,000, for losses suffered from the city’s termination of this work opportunity then being pursued before the board. It appears that 82.5 percent of the claims based on these rosters were made by officers who had worked only 18 percent of the total days spent by full-time officers on elderly housing assignments when these had been available from August, 1979, to July, 1980. A large percentage of the claims were those of policemen who were union officers and had seldom, if ever, performed elderly housing work while such extra duty assignments were being offered. For example, a former president of the union, who had worked only twice at elderly housing sites during the period when such work was available, claimed $4725 for 1982 and $5278 for 1983 by virtue of signing up for such extra duty, which he knew he could not be called upon to perform. The same officer earned $4791 from other extra duty assignments in 1982 and $6900 in 1983, approximately the same amounts he had earned from such assignments in 1979,1980 and 1981. Three policemen, who had never taken elderly housing assignments when they were available, nevertheless, filed substantial claims, including one claim for $6091 by the officer in charge of the extra duty lists, for losses suffered after such work had ceased simply because they had signed the rosters for such work.

The board in rendering its “decision on compliance” with its original 1981 decision did not purport to ascertain whether the policemen who had filed claims for losses resulting from the city’s failure to bargain had actually suffered any financial loss. The board made no findings as to whether any of the officers involved would have accepted elderly housing assignments if they had been available on the dates when the officers’ names appeared on the elderly housing duty lists. No determination of the amount due any individual officer was made. Instead of making findings concerning the individual claims of the policemen, the board made rulings upon disputes that had arisen between the city and the union as to the manner in which these individual claims should be resolved, leaving to the parties, with the assistance of an agent of the board, the determination of the actual amount to be awarded each claimant. The board’s “decision on compliance” was an attempt to clarify the part of the original decision ordering compensation for those officers who had sustained losses from the city’s breach of its statutory obligation.

The city contended that the record of extra duty work at elderly housing sites performed by the claimant policemen during the period when such work had been available was relevant in determining the amount of the loss an officer had sustained. The board adopted the union position that such evidence was wholly irrelevant. Accordingly, the board ordered that the calculation of the amounts to be paid to the claimants should be based solely on the records that had been signed by these claimants while aware that the elderly housing security work was unavailable, except that deductions should be made where an officer actually worked elsewhere on a night that he had signed up for elderly housing duty or was unable to work because of sickness or suspension from his job on such date.

The board set forth two reasons to support its ruling that the record of extra duty work that had actually been performed by the claimants at the elderly housing sites was irrelevant to the determination of the amounts of their losses from the unavailability of such work during the period July, 1980, to September, 1983: (1) the 1981 board decision had not expressly indicated that the prior work history of each claimant was to be considered; and (2) “comparison of an officer’s preJuly 1,1980 history of signing up for extra duty work at the elderly housing units with his post-July 1, 1980 record of signing up would be of doubtful probative value of anything.” We conclude that both these grounds for the board’s ruling were erroneous.

The fact that the 1981 board decision does not mention the prior work history of the claimants as a factor to be considered in calculating the losses of those officers who had been deprived of elderly housing security jobs does not indicate that the board at that time viewed such evidence as irrelevant. It is wholly speculative to draw such an inference from the absence of some express reference to such prior work history. The 1981 decision ordered the city to “make whole those officers who requested the work after July 1, 1980 . . . and who were denied the opportunity to perform such work for the loss they suffered because of such denial. ” This order cannot reasonably be construed as intended to preclude the consideration of any evidence relevant to the amount of the loss the claimants had sustained.

It is true that the 1981 order also contained a directive that the amount “should be computed by taking the amount of pay [the policemen] would have received for such assignment and subtracting therefrom the amount of any overtime or extra duty pay they did in fact receive during the period covered by their deprivation of the pay for elderly housing protection.” This provision of the order, however, refers to the amount they “would have received for such assignment,” which implicitly requires that a determination should be made whether each claimant would in fact have taken the elderly housing assignments for which he had signed. Furthermore, this computation provision does not indicate that the board in 1981 had any purpose in mind other than to “make whole” those who had been deprived of a work opportunity that they would have taken if it had been available. We find nothing in the 1981 decision that would bar the use of the records of elderly housing extra duty work performed before July 1, 1980, in deciding whether a particular claimant would have been likely to accept such an assignment and thus had suffered a loss from its unavailability.

Evidence of prior work history at elderly housing sites is relevant to ascertaining the loss sustained by each claimant, although it is not necessarily conclusive. “[A]ny fact may be proved which logically tends to aid the trier in the determination of the issue.” Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). Records of former earnings are commonly admitted into evidence to prove losses sustained from inability to work resulting from wrongful acts. See Silverman v. Springfield Advertising Co., 120 Conn. 55, 59, 179 A. 98 (1935). This practice is so generally accepted that no further refutation is needed of the board’s conclusion that the records of extra duty work at elderly housing sites performed by the claimants prior to July 1, 1980, “would be of doubtful probative value of anything.” Furthermore, these records, as well as the records of earnings for other extra duty employment would be significant in assessing the credibility of each individual claim. The city ought not to be deprived of the use of these records in challenging the good faith of each claimant in the appropriate forum for resolution of the individual claims. The board ruling precluding the use of these records by whatever tribunal may ultimately decide the genuineness of each claim and the amount to be awarded, therefore, was erroneous.

The trial court, in affirming the 1985 board decision, relied largely upon the deference that is ordinarily given to the factual and discretionary decisions of administrative agencies. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140, 509 A.2d 1050 (1986). The issues in this appeal from the 1985 board decision, however, do not involve factual or discretionary determinations based upon the credibility of each claimant but present questions of law properly raised on judicial review of a decision of an administrative board. No special deference, therefore, must be paid to the two rulings of the board, issued as parameters for determining the individual claims, which we find erroneous. “[I]t is for the courts, and not for administrative agencies, to expound and apply governing principles of law.” Id.

In No. 13462 the appeal is dismissed; in No. 13463 there is error, the judgment' is set aside and the case is remanded with direction to render judgment sustaining the appeal and remanding the case for further proceedings before the board in accordance with this opinion.

In this opinion Callahan, Covello, and Hull, Js., concurred.

Peters, C. J.,

dissenting in part. While I agree with part I of the court’s opinion, I respectfully disagree with part II. I would find no error in the trial court’s judgment upholding the propriety of the remedial order fashioned by the state board of labor relations.

The majority concludes, in part I, that the plaintiff can no longer challenge the validity of the underlying 1981 State Board of Labor Relations (board) decision that adjudicated the rights of the parties. In its 1981 decision, the board concluded that, in assigning part-time non-bargaining unit employees to perform work previously performed by bargaining unit employees, the plaintiff had engaged in and was engaged in a prohibited act in violation of General Statutes § 7-470 (a) (4) of the Municipal Employee Relations Act (MERA). To remedy this statutory violation of the plaintiff’s duty to bargain, the 1981 decision ordered the plaintiff to “[t]ake . , . affirmative action which the Board finds will effectuate the purposes of the Act.” Among the steps then mandated was an order, denominated II (b), requiring the plaintiff to “[m]ake whole those officers who requested the work after July 1, 1980 and who were denied the opportunity to perform such work for the loss they suffered because of such denial. This should be computed by taking the amount of pay they would have received for such assignment and subtracting therefrom the amount of any overtime or extra duty pay they did in fact receive during the period covered by their deprivation of the pay for elderly housing protection.” Like the validity of the determination of the existence of a statutory violation, the validity of this remedial order is now a given, because it was part of the final 1981 decision that the plaintiff could have appealed.

Once the validity of the underlying remedial order is established, the only issue that remains is whether the board exceeded its authority in its 1985 decision concerning the plaintiffs alleged noncompliance with part II (b) of the 1981 order. The majority concludes that the compliance order was erroneous in two respects, in failing to cap the plaintiffs liability at $125,000 and in determining the eligibility of individual union members too expansively. I do not know how I would have resolved these questions if I had been sitting as a member of the board, but that is not the governing standard. Taking account of the board’s established expertise in labor relations, and its broad authority to fashion appropriate remedial orders pursuant to General Statutes § 7-471 (4) (B), I would defer to its judgment in this case.

The majority holds that the board’s rulings involve matters of law, and not matters of fact that warrant the deference we usually afford to an administrative agency’s determination. This court and the federal courts, however, have consistently recognized the nearly unfettered power enjoyed by the labor board in constructing remedies designed to encourage compliance with the act. “ ‘Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.’ Phelps Dodge Corporation v. National Labor Relations Board, 313 U.S. 177, 194, 61 S. Ct. 845, 85 L. Ed. 1271 [1941].” Connecticut State Labor Relations Board v. Connecticut Yankee Greyhound Racing, Inc., 175 Conn. 625, 640, 402 A.2d 777 (1978). Thus, the act empowers the board to fashion remedies aimed not necessarily or exclusively at compensation, but at deterring violations of the act. “The particular means by which the effects of unfair labor practices are to be expunged are matters ‘for the Board not the courts to determine.’ ” Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 539, 63 S. Ct. 1214, 87 L. Ed. 1568 (1943), quotin g International Assn. of Machinists v. National Labor Relations Board, 311 U.S. 72, 82, 61 S. Ct. 83, 85 L. Ed. 50 (1940). The board’s determination should stand “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Co. v. National Labor Relations Board, supra, 540; Fibreboard Paper Products Corporation v. National Labor Relations Board, 379 U.S. 203, 216, 85 S. Ct. 398, 13 L. Ed. 2d 233 (1964); National Labor Relations Board v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S. 344, 346-47, 73 S. Ct. 287, 97 L. Ed. 377 (1953); National Labor Relations Board v. Fugazy Continental Corporation, 817 F.2d 979, 982 (2d Cir. 1987); Connecticut State Labor Relations Board v. Connecticut Yankee Greyhound Racing, Inc., supra, 640.

The compliance order in this case can hardly be characterized as “a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the act.” The plaintiff has advanced no argument that the board, in fashioning its remedy, sought to achieve ends other than the prevention of MERA violations. Neither did it raise, before the board, any question about the union members’ good faith in signing up for extra duty, an issue I should think would require resolution as a matter of fact. General Statutes § 4-183 (g).

I am equally unpersuaded that, as a matter of law, the remedial authority that MERA confers upon the board contains an implicit limitation that such remedial orders must conform to private law notions of compensatory damages. The plaintiff could have limited its exposure by engaging in collective bargaining over the allocation of the $125,000 fund that it had set aside for security personnel for elderly housing. Having instead violated MERA by refusing to bargain collectively, the plaintiff became obligated to pay whatever the board reasonably determined to be required to make whole the defendant union members for the losses actually suffered as a result of the plaintiffs statutory violation. That seems to me the only plausible construction of the board’s statutory authority to fashion appropriate affirmative relief to implement the statutory mandate of § 7-471 (4) (B).

Finally, I can discern no basis for the majority’s suggestion that the absence of a dollar ceiling in the board’s 1981 remedial order necessarily demonstrates that the plaintiffs liability to make whole the members of the defendant union would not exceed $125,000. Without the facts and figures required to calculate the extent of the loss attributable to the plaintiff’s statutory violation, the board could reasonably have thought it inappropriate to set such a ceiling ab initio. In fashioning the 1985 compliance order, the board repeatedly indicated that it viewed that order as entirely consistent with the clear intent of its 1981 remedial order.

In my view, both the board’s underlying remedial order and its subsequent compliance order were therefore well within the board’s authority as a matter of law. The application of the remedial order to the particular circumstances of the employer-employee relationships in this case seems to me to involve only questions of fact. Whether the particular terms of the compliance order are enforceable therefore devolves into a determination that is subject only to the limited judicial review authorized by the substantial evidence rule contained in General Statutes § 4-183 (g). Under the substantial evidence rule, an administrative finding of what constitutes compliance warrants judicial affirmance if the record affords “ ‘a substantial basis of fact from which the fact in issue can be reasonably inferred. . . ” Lawrence v. Kozlowski, 171 Conn. 705, 713, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). As we have recently reiterated, such a standard of review allows less room for appellate review than does a standard looking to the “weight of the evidence” or to “clearly erroneous” factfinding. Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987). Because the majority concludes that the board’s decision is deficient as a matter of law, it does not explore whether the compliance order lacks substantial evidentiary support as a matter of fact. I would hold that the plaintiff has made no showing of such evidentiary insufficiency.

Accordingly, I respectfully dissent from part II of the opinion of the court.

       In the trial court, as well as before the board, the city had contended that the 1988 decision, ordering that the amounts to be awarded to the claimant policemen “should be computed by taking the amount of pay they would have received for such assignment and subtracting therefrom the amount of any overtime or extra duty pay they did in fact receive during the period covered by their deprivation of the pay for elderly housing protection,” required that the earnings of the claimants from extra duty work during the period July 1,1980, to September, 1983, be deducted on an annual basis from the amounts of their claims. The board limited the deduction from such extra duty employment to instances where a policeman had been paid for extra duty work on a date that he claimed to be available for elderly housing work by virtue of signing the roster for such work on the same date. The city has not briefed any claim of error with respect to this determination.

       We recognize that in Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 520 A.2d 186 (1987), this court held that an appeal from an agency order determining that an employer had discriminated against the complainant because of her gender and awarding her back pay was not final because the precise amount of the award was not established until a subsequent agency order was issued two months later. In that case, however, it appears that the agency did not intend its first decision to be final and further proceedings before the agency related to the amount of compensation to be awarded were expressly indicated by the terms of the order. These proceedings, which involved additional evidence, continued after the appeal had been taken and culminated in a revision of the original award. The appeal was plainly premature because it interfered with an ongoing proceeding before the agency for which the parties had been requested to submit additional evidence.

       The parties have stipulated that, if the calculation of the amounts to be awarded the claimants is made on the basis of the 1985 board decision, the total sum to be paid by the city would be $213,887.50.

       The members of the panel who participated in the 1981 board decision did not participate in the 1985 decision. The panel issuing the 1985 decision, therefore, had to rely solely upon the text of the 1981 decision in ascertaining what the board intended at that time.

       General Statutes § 7-471 (4) (B) provides: “Whenever a question arises as to whether a practice prohibited by sections 7-467 to 7-477, inclusive, has been committed by a municipal employer or employee organization, the board shall consider that question in accordance with the following procedure . . . . (B) If, upon all the testimony, the board determines that a prohibited practice has been or is being committed, it shall state its findings of fact and shall issue and cause to be served on the party committing the prohibited practice an order requiring it or Mm to cease and desist from such prohibited practice, and shall take such further affirmative action as will effectuate the policies of sections 7-467 to 7-477, inclusive, including but not limited to: (i) Withdrawal of certification of an employee organization established or assisted by any action defined in said sections as a prohibited practice, (ii) reinstatement of an employee discriminated against in violation of said sections with or without back pay, or (iii) if either party is found to have refused to bargain collectively in good faith, ordering fact finding and directing the party found to have refused to bargain to pay the full costs of fact finding under section 7-473 resulting from the negotiations in which the refusal to bargain occurred.”

       MERA is closely patterned after the National Labor Relations Act and, “[therefore, ‘ “the judicial interpretation frequently accorded the federal act is of great assistance and persuasive force in the interpretation of our own act.” . . .’ " Stratford v. Local 134, IFPTE, 201 Conn. 577, 589, 519 A.2d 1 (1986); Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 354, 402 A.2d 332 (1978).

       The evidentiary rulings of the board on questions of relevance seem to me to fall within the board’s discretionary authority to construe the scope of its remedial order. If, however, the plaintiff had wanted to object to the 1981 order on the ground of overbreadth for failure to take the claimants’ prior work history into account, it should have pursued that question at an earlier stage in these proceedings.