source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Eklof Marine Corporation v. American National Bank et al.
    (15058)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.
    Argued January 6
    decision released February 7, 1995

      Carol S. Ljungquist, with whom were Patricia E. Rosenberg and, on the brief, Mitchell J. Rosenfeld, for the appellant (plaintiff).

      Matthew B. Woods, for the appellee (named defendant).
   Per Curiam.

The sole issue in this commercial appeal is whether, after a judgment creditor has served a payor bank with an execution order garnishing funds in a depositor’s account, General Statutes § 52-367a permits the bank to exercise its right of setoff against these same funds, if the bank acts within the midnight deadline established by that statute. The plaintiff, Eklof Marine Corporation, a judgment creditor of National Oil Service, Inc. (National Oil), filed a two count complaint against the defendant American National Bank (bank), alleging that the bank had violated § 52-367a and the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110b; by refusing to pay funds properly garnished by the plaintiff. Both parties filed motions for summary judgment. After denying the plaintiffs motion, the trial court rendered summary judgment in favor of the bank. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts are undisputed. The plaintiff recovered a valid judgment for $32,471.21 against National Oil in the United States District Court for the Southern District of New York. After this judgment had been registered with the United States District Court for the District of Connecticut, a clerk of that court issued a “bank execution order” for the collection of the amount of the judgment from any Connecticut banking institution. National Oil maintained a deposit account with the bank. On June 18,1992, when the execution order was served on the bank, the National Oil account had a balance of $21,556.09.

On August 8, 1986, National Oil had borrowed $100,000 from the bank. This debt was in the form of a demand note. On June 18, 1992, the note was in default. Within an hour of receipt of the execution order, the bank exercised a right of setoff in accordance with express terms in its deposit account agreement with National Oil. The bank thereafter responded to the execution order by informing the sheriff that there were no funds in the National Oil account.

On the basis of this factual record, the trial court denied the plaintiffs motion for summary judgment and granted the bank’s motion for summary judgment. The court ruled that the bank had exercised its right of setoff within the time frame established by § 52-367a and, accordingly, that the bank’s setoff took priority over the plaintiff’s execution order. In this appeal from the trial court’s judgment in favor of the bank, the plaintiff renews its claim that service of its execution notice on the bank established the plaintiff’s legal right to the funds in the National Oil account and that thereafter the bank could no longer exercise any right of setoff. We disagree.

The plaintiff’s claim cannot succeed in light of the reasoning of our decision, during the pendency of the plaintiff’s appeal, in Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 646 A.2d 1289 (1994). In that case, we concluded that “§ 52-367a imposes a midnight deadline on a bank served with an execution. The midnight deadline arguably was intended by the legislature to apply directly even in transactions not governed by [General Statutes] § 42a-4-303. Alternatively, if § 52-367a has no express time limitation for transactions that are not governed by § 42a-4-303, the bank must act within a reasonable time, and that reasonable time period is, by analogy, defined as the midnight deadline that is the baseline generally . . . governing payouts by banks.” Id., 503. The term “midnight deadline” is defined by General Statutes § 42a-4-104 (a) (10) as “midnight on [a bank’s] next banking day following the banking day on which it receives the relevant . . . notice . . . .” General Statutes §§ 42a-4-301 and 42a-4-302 establish the midnight deadline as the standard time frame within which a payor bank must act on demands for payment. Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 502-503.

In Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 507-508, we held that, once a bank has been served with a valid execution order, the bank violates § 52-367a if it fails to execute its right of setoff within the applicable midnight deadline. A fortiori, we hold today that a bank does not violate § 52-367a if, as in this case, it executes its right of setoff before the expiration of its midnight, deadline.

Because the plaintiff’s CUTPA claim was predicated on the bank’s alleged violation of § 52-367a, the plaintiff cannot succeed on either count of its complaint. The trial court, therefore, correctly granted the bank’s motion for summary judgment.

The judgment is affirmed.

       General Statutes § 52-367a provides in relevant part: “execution AGAINST DEBTS DUE FROM BANKING INSTITUTION. DEBTOR OTHER THAN NATURAL person. As used in this section and section 52-367b, the term ‘banking institution’ means a state bank and trust company, national banking association, savings bank, industrial bank, credit union, federal credit union, savings and loan association and federal savings and loan association. Execution may be granted pursuant to this section against any debts due from any banking institution to a judgment debtor which is not a natural person. If execution is desired against any such debt, the plaintiff requesting the execution shall so notify the clerk, and the clerk shall issue such execution containing a direction that the officer serving the same shall make demand (1) upon the main office of any banking institution having its main office within the county of such officer ... for the payment of any debt due to the judgment debtor, and, after having made such demand, shall serve a true and attested copy thereof, with his actions thereon endorsed, with the banking institution officer upon whom such demand is made. If any such banking institution upon which such execution is served and upon which such demand is made is indebted to the judgment debtor, it shall pay to such officer, in the manner and at the time hereinafter described, the amount of such indebtedness not exceeding the amount due on such execution, to be received and applied on such execution by such officer. Such banking institution shall act upon such execution according to section 42a-4-303 before its midnight deadline, as defined in section 42a-4-104. If such banking institution fails or refuses to pay over to such officer the amount of such debt, not exceeding the amount due on such execution, such banking institution shall be liable in an action therefor to the judgment creditor named in such execution, and the amount so recovered by such judgment creditor shall be applied toward the payment of the amount due on such execution.”

       General Statutes § 42-110b (a) provides, in relevant part, that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       General Statutes § 42a-4-104 provides in relevant part: “definitions and index of definitions, (a) In this article, unless the context otherwise requires . . . (10)‘midnight deadline’with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later . . . .”

       General Statutes § 42a-4-301 provides in relevant part: “deferred POSTING. RECOVERY OF PAYMENTS BY RETURN OF ITEMS. TIME OF DISHONOR. return of items by payor bank, (a) If a payor bank settled for a demand item other than a documentary draft presented otherwise than for immediate payment over the counter before midnight of the banking day of receipt, the payor bank may revoke the settlement and recover the settlement if, before it has made final payment and before its midnight deadline, it (1) returns the item; or (2) sends written notice of dishonor or nonpayment if the item is unavailable for return.
      “(b) If a demand item is received by a payor bank for credit on its books, it may return the item or send notice of dishonor and may revoke any credit given or recover the amount thereof withdrawn by its customer, if it acts within the time limit and in the manner specified in subsection (a).”
      General Statutes § 42a-4-302 provides in relevant part: “payor bank’s responsibility for late return of item, (a) If an item is presented to and received by a payor bank, the bank is accountable for the amount of: (1) A demand item, other than a documentary draft, whether properly payable or not, if the bank, in any case in which it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, whether or not it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline . . . .”

       “See also General Statutes § 42a-4-303 (incorporating General Statutes § 42a-4-302 into its provisions regarding acting upon an item); General Statutes § 42a-4-202 (b) (specifying midnight deadline as general standard for timely action by collecting bank); General Statutes § 42a-4-213 (c) (specifying midnight deadline as default rule for final settlement of cashier’s or teller’s check that has not been presented or forwarded for collection); and General Statutes § 42a-4-214 (a) (midnight deadline used as usual time frame to determine collecting bank liability for item after settlement has been revoked and where neither item has been returned nor notification sent).
      “The midnight deadline serves as a safe harbor provision for a payor bank because it does not become accountable for the amount of an item until after the midnight deadline has passed, unless, before that deadline has passed, it already has made final payment pursuant to General Statutes § 42a-4-215.” Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 502-503 n.14.


text:
    Elizabeth C. Masotti v. Bristol Savings Bank
    (15097)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.
    Argued January 6
    decision released February 7, 1995

      Alfred F. Morrocco, Jr., with whom was Thomas W. Conlin, for the appellant (plaintiff).

      Jo-Ann L. Bowen, with whom were Bruce M. Lutsk and, on the brief, Lawrence H. Lissitzyn, for the appellee (defendant).
   Per Curiam.

The dispositive issue in this appeal is the validity of a bank’s exercise of its right of setoff against funds held in joint accounts for which the signatories were the bank’s debtor and the debtor’s spouse. The plaintiff, Elizabeth C. Masotti, filed a complaint alleging that the defendant, Bristol Savings Bank (bank), had wrongfully withdrawn funds from joint accounts of the plaintiff and her husband, Vito Masotti. In six counts, the plaintiff claimed that these withdrawals constituted a conversion, a breach of contract, negligence, a breach of the duty of good faith and fair dealing, and an unfair trade practice, and that the bank fraudulently had failed to give the plaintiff notice of its authority to make such a withdrawal. The bank filed a motion for summary judgment that the trial court granted. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The underlying facts are undisputed. The plaintiff and her husband opened three joint accounts with the bank over a period of years beginning in 1986. Substantially all of the money in these accounts was deposited by the husband. On May 4, 1990, the bank notified the plaintiff’s husband that, because he was in default on a $15,000,000 loan to Village Gate Partnership for which he had agreed to act as guarantor, the bank had put a hold on his bank accounts. On May 7, 1990, the bank exercised its right of setoff and withdrew the remaining balance in the three joint accounts. Although the bank sent certified notices of the closing of these bank accounts to both the plaintiff and her husband, the plaintiff was not shown to have received any such notification. The funds subsequently were restored by the bank in conjunction with a workout arrangement pursuant to which the husband agreed to pledge the funds as security for a new loan transaction. The plaintiff learned of the new pledge on November 1, 1990.

The trial court granted the bank’s motion for summary judgment with respect to each count of the plaintiff’s complaint. The court concluded that the bank had had a right of setoff that it had been entitled to exercise with respect to the funds in the plaintiff’s joint accounts with her husband because those accounts had not been special purpose fund accounts. Accordingly, the court held that the plaintiff could not prevail on the first five counts of her complaint. The court further held that the plaintiff could not prevail on the sixth count of her complaint because she had failed to submit any proof to support the allegation that the bank had “deceptively induced [her] into making the Depositor’s contract.” The thoughtful and comprehensive memorandum of decision filed by the trial court thoroughly canvassed the applicable legal principles in a manner consistent with the statute governing joint accounts; General Statutes § 36-3; and with our intervening case law upholding the validity of bank setoffs. See, e.g., Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 646 A.2d 1289 (1994). Because that memorandum of decision fully states and meets the relevant arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law on these issues. Masotti v. Bristol Savings Bank, 43 Conn. Sup. 360, 653 A.2d 836 (1994). No useful purpose would be served by a repetition of the discussion contained therein. See Advanced Business Systems, Inc. v. Crystal, 231 Conn. 378, 381, 650 A.2d 540 (1994); Van Dyck Printing Co. v. DiNicola, 231 Conn. 272, 273-74, 648 A.2d 877 (1994); Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 229 Conn. 455, 458-59, 642 A.2d 697 (1994).

The judgment is affirmed.

       General Statutes § 36-3 provides in relevant part: “JOINT deposits and accounts, (a) When a deposit has been made in this state in any state bank and trust company, national banking association or savings bank or an account has been issued in this state by any savings and loan association or federal savings and loan association or credit union, in the names of two or more persons and in form to be paid to any one or the survivor, or survivors, of them, such deposit or account and any additions thereto made by any of such persons after the making or issuance thereof, together with all dividends or interest or increases credited thereon, shall be held for the exclusive use of such persons and may be paid to any of them during the lifetime of all of them or to the survivor or survivors after the death of one or more of them, and such payment and the receipt or acquittance of the person or persons to whom such payment is made shall be a valid and sufficient release and discharge for all payments so made.”
      In Grodzicki v. Grodzicki, 154 Conn. 456, 461-62, 226 A.2d 656 (1967), we rejected the contention that, under this statute, the creation of a joint account conferred on each of the codepositors, inter vivos, an undivided one-half pro rata interest in the account.

       On appeal to this court, the plaintiff additionally challenges the constitutionality of § 36-3. The plaintiff’s constitutional claim cannot succeed. The plaintiff made no such claim in the trial court. Furthermore, the plaintiff’s claim depends upon a showing that the constitutional requirements of due process apply to bank setoffs, a proposition for which the plaintiff has provided no persuasive authority.


author: Callahan, J.

text:
    Steven Goodson et al. v. State of Connecticut
    (15055)
    Callahan, Norcott, Palmer, F. X. Hennessy and M. Hennessey, Js.
    Argued November 29, 1994
    decision released February 7, 1995

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Over end, assistant attorney general, for the appellant (state).

      Bruce M. Grimm, with whom, on the brief, were Albert J. McGrail and Robert McNamee, legal intern, for the appellees (plaintiffs).
   Callahan, J.

The dispositive issue in this appeal is whether the trial court lacked subject matter jurisdiction to have considered a petition, pursuant to General Statutes § 52-422 of chapter 909, entitled “Arbitration Proceedings,” requesting an order reinstating the named plaintiff, Steven Goodson, to his position as a state correction officer pending the resolution of the

grievance procedure established by a collective bargaining agreement for terminated employees. We conclude that the trial court lacked jurisdiction to have considered the petition.

The facts are undisputed. On May 12, 1992, the defendant, the state of Connecticut, terminated Good-son from his employment as a correction officer at the John R. Manson Youth Institution, a state correctional facility. Goodson and his collective bargaining agent, the plaintiff American Federation of State, County and Municipal Employees, Local 387 (union), challenged the termination by filing a grievance pursuant to the collective bargaining agreement then in effect between the union and the defendant.

On July 9, 1992, the plaintiffs brought a petition in the trial court, pursuant to § 52-422, seeking an order reinstating Goodson as an employee pending the disposition of the grievance. At the time the plaintiffs brought their petition, the parties were awaiting a conference with the director of personnel and labor relations provided for by Step III of the grievance procedure; see footnote 2; which was scheduled for August 18, 1992. The parties had not yet begun arbitration, which was to be the next phase of the grievance procedure. See footnote 2. On August 6, 1992, after a hearing on the plaintiffs’ petition, the trial court ordered that Goodson be reinstated temporarily until September 3, 1992, and rendered judgment accordingly.

The defendant appealed from the trial court’s judgment to the Appellate Court, claiming that the trial court’s order was contrary to the provisions of the collective bargaining agreement and to the language and purpose of § 52-422. While the appeal was pending, the Appellate Court ordered the parties to show cause why the appeal should not be dismissed for lack of a final judgment, mootness and the defendant’s failure to comply with Practice Book §§ 4049 and 4053. Thereafter, the Appellate Court dismissed the appeal without articulating the grounds therefor, and this court granted the state’s petition for certification to review that dismissal. Goodson v. State, 224 Conn. 926, 619 A.2d 850 (1993). We reversed the judgment of the Appellate Court, concluding that: (1) the trial court’s order was a final judgment; (2) because the issue was capable of repetition, the controversy was not moot; and (3) the defendant was not required to seek review under §§ 4049 and 4053. We thereafter remanded the case to the Appellate Court for consideration of the defendant’s original claims. Goodson v. State, 228 Conn. 106, 118, 635 A.2d 285 (1993). While the remand was pending, however, we transferred the appeal back to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

In addition to its original claims that the trial court’s order was contrary to the provisions of the collective bargaining agreement and § 52-422, the defendant now contends that the trial court lacked subject matter jurisdiction to have considered the plaintiffs’ petition. Although this claim was raised by the defendant for the first time just prior to oral argument before this court, a challenge to the court’s subject matter jurisdiction may be made at any time. Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987). Because the jurisdictional issue had to be resolved before a decision on the merits could be rendered; Galland v. Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987); we ordered the parties to file supplemental briefs to aid us in deciding the question of jurisdiction. We conclude that the trial court lacked jurisdiction to have considered the plaintiffs’ petition and reverse the judgment of the trial court.

The defendant claims that the trial court lacked subject matter jurisdiction to have considered the plaintiffs’ petition requesting an order reinstating Goodson pursuant to § 52-422 because the statute by its express terms applies only to parties to an arbitration. See footnote 1. The defendant claims that because on August 6, 1992, the date the trial court conducted its hearing and entered its order, Goodson had not filed for arbitration, Goodson could not have been a “party to the arbitration,” and thus the trial court had no authority to act under the statute. We agree.

An application for an order pendente lite pursuant to § 52-422 is a special statutory proceeding. “The statute confers a definite jurisdiction upon a judge and it defines the conditions under which such relief may be given .... In such a situation jurisdiction is only acquired if the essential conditions prescribed by statute are met. If they are not met, the lack of jurisdiction is over the subject-matter and not over the parties.” (Internal quotation marks omitted.) Guilford Yacht Club Assn., Inc. v. Northeast Dredging, Inc., 192 Conn. 10, 13, 468 A.2d 1235 (1984); see also Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988); Dugan v. Milledge, 196 Conn. 591, 595, 494 A.2d 1203 (1985). By its express terms, § 52-422 allows the trial court to issue an order only “upon application of any party to the arbitration . . . .” Thus, a pending arbitration is an essential condition that must exist before § 52-422 may be invoked. It is undisputed that on the date the trial court conducted its hearing and entered its order, there was no pending arbitration. The essential condition prescribed by the statute was not met, therefore, and the trial court lacked jurisdiction to have considered the plaintiffs’ petition pursuant to § 52-422.

The judgment of the trial court is reversed, and the case is remanded to that court with direction that the petition be dismissed.

In this opinion the other justices concurred.

       General Statutes § 52-422 provides: “order pendente lite. At anytime before an award is rendered pursuant to an arbitration under this chapter, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when said court is not in session, any judge thereof, upon application of any party to the arbitration, may make forthwith such order or decree, issue such process and direct such proceedings as may be necessary to protect the rights of the parties pending the rendering of the award and to secure the satisfaction thereof when rendered and confirmed.”

       The relevant portions of the collective bargaining agreement relating to the grievance procedure provide: “ARTICLE 12 GRIEVANCE PROCEDURE ....
      “SECTION SIX. THE GRIEVANCE PROCEDURE. STEP i. A grievance may be submitted within the fifteen (15) day period specified in Section Five to the employee’s first supervisor in the chain of command who is outside the bargaining unit. The institution head, warden, or designee shall meet with the steward or Union Executive Board member and/or the grievant and issue a written response within seven (7) days after such meeting. The meeting shall take place and the written response issued not later than ten (10) days from the date of receipt.
      “step ii. When the answer at Step I does not resolve the grievance, it shall be submitted to the Commissioner of Corrections or his/her designee within five (5) days of the due date of the previous response. Within fourteen (14) days after receipt of the grievance, a meeting will be held with the employee and/or a union representative and a written response issued within five (5) days thereafter. The grievant may be represented by the persons already designated at Step I and the local union president or his/her designee, but in no event more than two (2) representatives.
      “step hi. Director of Personnel and Labor Relations or Designee. An unresolved grievance may be appealed to the Director of Personnel and Labor Relations within seven (7) days of the date that the Step II response is due. Said Director or his/her designated representative shall hold a conference within forty-five (45) days of receipt of the grievance and issue a response within ten (10) days of the conference. The local union president or his/her designee, staff representative and steward may be present at the Step III level.
      * ** *
      “section nine, arbitration, (a) Grievances during the life of this Agreement shall be submitted to the Connecticut Board of Mediation and Arbitration within thirty (30) days from the receipt of the Step III response, or if no response, within thirty (30) days of the due date. . . .”

       Because of our disposition of the appeal, we do not reach the merits of the defendant’s substantive claims.


author: Borden, J. Berdon, J.,

text:
    Commission on Human Rights and Opportunities v. Windsor Hall Rest Home et al.
    (14983)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued October 28, 1994
    decision released February 7, 1995

      Charles Krich, staff attorney, with whom was Philip A. Murphy, Jr., commission counsel, for the appellant (plaintiff).

      Lissa J. Paris, with whom was Hugh F. Murray III, for the appellee (named defendant).
   Borden, J.

The issue in this appeal is whether, under the circumstances of this case, the oral decision of a presiding officer at an administrative hearing of the commission on human rights and opportunities (commission) dismissing a complaint was a “final decision” of the commission within the meaning of General Statutes § 4-183 (c), so as to trigger the forty-five day time period within which a party must appeal. The trial court rendered judgment dismissing the administrative appeal of the plaintiff commission from the decision of its hearing officer for lack of subject matter jurisdiction. On appeal from the judgment of the trial court, the commission claims that the trial court improperly concluded that the presiding officer’s oral decision was a final decision from which an appeal would lie under the Uniform Administrative Procedure Act (UAPA), chapter 54 of the General Statutes. We affirm the judgment of the trial court.

The facts are undisputed. The complainant, Wardine W. Couch, filed a complaint with the commission against her former employer, the defendant Windsor Hall Rest Home, alleging that her discharge had been racially motivated. The commission found reasonable cause and convened a hearing on November 3 and 4,1992, before a presiding officer appointed pursuant to General Statutes § 46a-84 (b).

The commission presented the complaint on behalf of Couch, who was present at all times. Couch and representatives of the defendant testified and submitted documentary evidence. Following the presentation of evidence by the commission, its counsel stated that the commission had no further evidence in support of its prima facie case. The defendant moved that the complaint be dismissed for lack of evidence of racial motivation. The commission objected to the motion, arguing that it was only required to submit evidence raising an inference of discrimination to establish a prima facie case in order to shift to the defendant the burden of articulating a legitimate, nondiscriminatory reason for the discharge.

On November 4,1992, in the presence of Couch and counsel for the parties, the presiding officer orally granted the defendant’s motion to dismiss, stating that the commission had not submitted evidence raising an inference of discrimination. Specifically, the presiding officer stated: “I’m going to grant [the] motion [to dismiss] and the basis ... is that I agree that there has been no inference raised that [Couch] was discharged due to race. She was discharged due to perceived neglect for failing to chart crucial information that would have alerted the staff. I’m not going to comment on that there may be other negligence in terms of the disappearance or the losing of this patient at the shopping mall. However, the concern is that the administration of [the defendant’s] facility is a team administration and it focuses on passing information. And how it’s done is through charting. And Nurse Bourgault ... did what she was supposed to do with respect to the finding of [a patient] walking down the street. And it was reasonable. And the follow-up of that does not raise the inference that because she was white that she was not fired. There has been absolutely no inference raised that there was any racial motivation in this at all. Granted, Mrs. Couch is a member of a protected class. But because she’s a member of a protected class and happens to be fired doesn’t raise the inference automatically that it was racially motivated.” After the counsel for the commission stated that she took an exception to the ruling, the presiding officer stated: “You have an exception. You have your right to appeal.” The presiding officer did not issue a written decision.

On November 19, 1992, the commission filed a petition with the presiding officer for reconsideration of the decision pursuant to General Statutes § 4-181a. On January 11,1993, the presiding officer issued a written decision denying the petition for reconsideration. The written decision stated in pertinent part: “ORDER: DENIED. The undersigned has the authority to grant a Motion to Dismiss after the Commission rested, as the Commission failed to establish a prima facie case.” On January 22,1993, seventy-nine days after the oral decision dismissing the complaint and eleven days after the written decision denying the petition for reconsideration, the commission filed this appeal in the trial court, pursuant to § 4-183 of the UAPA, challenging the presiding officer’s decision to dismiss the complaint.

The trial court dismissed the commission’s appeal for lack of subject matter jurisdiction because the appeal had not been filed within forty-five days after the presiding officer’s oral decision on November 4,1992, as required by § 4-183 (c). This appeal followed.

The commission claims that its appeal was timely under § 4-183 because: (1) General Statutes § 46a-94a contemplates that a final decision of the commission be in writing; (2) under General Statutes § 46a-86 (e), a dismissal of a complaint must be in writing; (3) the commission’s regulations are consistent with and support the construction that §§ 46a-94a and 46a-86 (e) mandate a written final decision; and (4) even if a final decision of the commission may be made orally, an oral decision is not final for purposes of appeal until it is reduced to writing, an event that did not take place until the presiding officer’s written denial of the petition for reconsideration.

The commission concedes that “[i]f an oral ruling satisfies the statutes, the [commission’s] appeal is clearly untimely under . . . § 4-183.” The gist of the commission’s argument is that, under the specific statutes and regulations governing its procedures, an order of a presiding officer dismissing a complaint must be in writing. The commission contends that these specific statutory and regulatory provisions take precedence over what it regards as the more general provisions of the UAPA. It argues, therefore, that there was no order from which an appeal could be taken under the UAPA until the presiding officer’s written denial of the petition for reconsideration. The necessary implication of this position is that the oral decision rendered on November 4,1992, was a nullity for purposes of appeal under the UAPA. We are not persuaded.

The failure of a party to file an administrative appeal under the UAPA within the forty-five days required by § 4-183 (c) deprives the trial court of subject matter jurisdiction over the appeal. Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993). Moreover, the filing of a petition for reconsideration of an agency decision does not toll the running of the forty-five day time limit; Cassella v. Dept. of Liquor Control, 30 Conn. App. 738, 741, 622 A.2d 1018, cert. denied, 226 Conn. 909, 628 A.2d 983 (1993); and the commission does not contend otherwise.

There can be no question that the UAPA recognizes an appeal from an oral decision of an agency. General Statutes § 4-180 (c) specifically provides that “[a] final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency’s findings of fact and conclusions of law necessary to its decision. . . .” (Emphasis added.)

The issue of statutory construction posed by the commission’s argument, therefore, is whether the terms of § 4-180 (c) take precedence over what the commission perceives to be the mandate of the statutes and regulations governing it, namely, that a final decision of a presiding officer dismissing a complaint be in writing. We conclude that this oral decision of the commission’s presiding officer was the “final decision” of the commission that triggered the forty-five day appeal period under the UAPA, and that neither the statutes nor the regulations regarding the commission take precedence over the UAPA by clearly mandating a written decision to trigger the right to appeal.

First, it would elevate form over substance to conclude, as the commission argues, that the oral decision was a nullity, and did not become final until the written decision on the petition for reconsideration. The decision of the presiding officer contained all of the factual findings and legal conclusions necessary to support a dismissal for lack of a prima facie case. The oral decision was rendered in the presence of the complainant and counsel for the parties, and was transcribed. It is clear from the record that all of the parties to the administrative proceedings considered the decision to be final and to dispose of the complaint when orally rendered. Indeed, the presiding officer specifically referred to the right of the commission to appeal therefrom. Moreover, the oral decision was more specific with respect to the necessary facts and legal conclusions than was the written decision on the petition for reconsideration.

Second, the language of § 4-180 (c); see footnote 7; strongly suggests that the oral decision in this case was final for purposes of an appeal under § 4-183, despite the fact that the decision was not executed in a manner that would otherwise lend itself to the formalities attendant on a written decision. Section 4-180 (c) specifically contemplates an oral decision precisely like that rendered in this case. As previously noted, the oral decision was stated “on the record” in the presence of all interested parties, and it included “the agency’s findings of fact and conclusions of law necessary to its decision.” General Statutes § 4-180 (c). It was transcribed, and there is no suggestion that it was not based “exclusively on the evidence in the record and on matters noticed.” General Statutes § 4-180 (c).

It is true that § 4-180 (c) requires that the decision contain the name and most recent mailing address of each party or his authorized representative, and that the decision “shall be delivered promptly to each party or his authorized representative, personally” or by certified or registered mail. (Emphasis added.) Although this language might suggest, on its face, a written form of decision, the fact that § 4-180 (c) specifically contemplates a final decision “orally stated on the record” must mean that, in such a case, the requirement of the name and address is directory only; cf. Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 547, 489 A.2d 368 (1985) (deviation from regulatory requirement of notice by registered mail did not render notice by certified mail invalid); and that the concept of personal delivery would be satisfied by an oral decision rendered in the presence of the parties or their counsel.

Third, the “main objective [of the UAPA] was uniform procedure.” Hirschfeld v. Commission on Claims, 172 Conn. 603, 607-608, 376 A.2d 71 (1977); Connecticut Natural Gas Corp. v. Dept. of Public Utility Control, 1 Conn. App. 1, 3, 467 A.2d 679 (1983). This objective is codified in the implied repeal provision of the UAPA, General Statutes § 4-189. Hirschfeld v. Commission on Claims, supra, 606. As we discuss more fully later in this opinion, there is no language in the statutes and regulations governing the commission that specifically mandates a decision in writing and prohibits an oral decision; compare id., 607 (“no review” language governing decisions of commission on claims too specific to be implicitly repealed by UAPA); and the commission does not contend to the contrary. The argument of the commission is based, rather, on what it perceives to be necessary implications of those statutes and regulations. It would be inconsistent, however, with the UAPA’s objective of procedural uniformity to permit mere perceived implications to take precedence over the more specific provision of § 4-180 (c).

Fourth, it is clear that all of the parties, including the commission, treated this oral decision as final when it was rendered. Although not determinative, it is significant that the agency itself implicitly interpreted its statutes and regulations as contemplating the oral decision as final. See University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 119-20, 584 A.2d 1172 (1991). The commission at no time sought, either by an internal procedure or by resort to § 4-180 (a) and (b), to compel the presiding officer to reduce her oral decision to writing. Furthermore, the commission filed its petition for reconsideration fifteen days after the oral decision “pursuant to ... § 4-181a.” See footnote 5. Section 4-181a (a) (1) provides in pertinent part: “Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration . . . .’’(Emphasis added.)

Fifth, concluding that the oral decision in this case was a nullity for purposes of an appeal under the UAPA, as the commission suggests, would lead to bizarre results. For example, despite the presiding officer’s statements on the record in the presence of the parties, including her specific reference to the commission’s right to appeal, if no one sought a petition for reconsideration or invoked some other procedure yielding a written decision, the appeal period would have extended indefinitely. We are not inclined to read our statutes to yield such a result.

The commission argues that the statutes governing its procedure and the regulations promulgated thereunder mandate a written decision in order to trigger an appeal under the UAPA. The statutes on which it relies are General Statutes § 46a-94a and 46a-86 (e). The regulations are §§ 31-125-45, 31-125-46, 31-125-47 and 31-125-53, of the Regulations of Connecticut State Agencies, which were in effect at the time of the presiding officer’s oral decision, and two more recent regulations, §§ 46a-54-109 (a) and 46a-54-lll, that were promulgated effective January 1,1993, after the oral decision but before the denial of the petition for reconsideration.

The commission contends in essence that the use throughout these statutes and regulations of such terms as “serve” and “file,” with respect to final decisions of the agency, mandates the conclusion that these statutes and regulations require a written decision and preclude an oral decision such as the one rendered in this case. The commission bolsters this argument by resort to the statutory canon that provisions of special applicability take precedence over those of general applicability.

We recognize that these statutes and regulations, as phrased, contemplate that ordinarily the decision of the commission will be in writing. We also recognize that the legislature is free to require that any particular administrative agency’s final decision be in writing and that, regardless of the circumstances, unless and until an oral decision is reduced to writing it does not trigger an appeal under the UAPA. Under those circumstances, such a statute would constitute, as the commission argues that these statutes are, a specific exception to the provision in § 4-180 (c) for oral decisions on the record. We do not read these statutes and regulations, however, as intending such a result.

There is no language in these statutes or regulations that specifically calls for a written, as opposed to an oral, decision. Neither is there anything that specifically addresses the situation posed by the facts of this case, in which the presiding officer rendered a complete oral decision on the record that was intended to be, and that the parties must have understood as, final. We therefore decline to read them in such a way as to undermine the UAPA objective of uniformity of administrative procedure, to elevate the form of the decision over its substance, and to lead to potentially bizarre results.

The commission also argues that even if the oral decision was final, it was not final for purposes of appeal until it was reduced to writing by virtue of the written denial of the petition for reconsideration. This argument is without merit. There is nothing in either the language or the policy of the UAPA to suggest such a bifurcated analysis of the finality of an administrative decision. The principal purpose of determining whether an administrative decision is “final” is to determine whether an appeal may be taken therefrom. Further, a denial of a petition for reconsideration does not affect the finality of the original decision, nor is the denial of the petition itself a final decision for purposes of appeal. General Statutes § 4-166 (3).

The judgment is affirmed.

In this opinion Peters, C. J., and Norcott and Palmer, Js., concurred.

Berdon, J.,

dissenting. Chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA), provides that a final decree may be “orally stated in the record.” General Statutes § 4-180. If § 4-180 alone was applicable to the commission on human rights and opportunities (commission), I would agree with the majority that the oral ruling by the presiding officer in this case constituted a final decision and that the appeal was not timely filed. We have long adhered, however, to the principle that specific terms in a statute covering a given matter will prevail over the more general language of another statute. Gaynor v. Union Trust Co., 216 Conn. 458,476-77, 582 A.2d 190 (1990); Kelly v. Dewey, 111 Conn. 281, 292, 149 A. 840 (1930) (“ ‘[wjhere there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and, if both cannot apply, the particular provision will be treated as an exception to the general provision’ ”).

General Statutes § 46a-86, which specifically applies to the commission, indicates that a decision on a motion to dismiss a complaint must be in writing. Section 46a-86 (e) provides that “[i]f, upon all the evidence, the presiding officer finds that the respondent has not engaged in any alleged discriminatory practice, the presiding officer shall state his findings of fact and shall issue and file with the commission and cause to be served on the respondent an order dismissing the complaint.” Because § 46a-86 specifically pertains to the commission it prevails over the more general administrative agency provisions included in the UAPA.

Both the plain language of this specific provision and public policy considerations compel the conclusion that the decision of a hearing officer dismissing a complaint must be in writing. First, the requirement of § 46a-86 (e) that the hearing officer “file” his order indicates that it must be written. Absent a technical meaning or the use of a term of art, or except where the context requires otherwise, we must construe words used in statutes and regulations according to their commonly approved usage. Carr v. Bridgewater, 224 Conn. 44, 56-57, 616 A.2d 257 (1992). “To file” means: “to deliver (as a legal paper or instrument) ... to the proper officer for keeping on file or among the records of his office”; or “to place (as a paper or instrument) on file among the legal or official records of an office [especially] by formally receiving, endorsing and entering.” (Emphasis added.) Webster’s Third New International Dictionary. The definition of the term when used in a legal context is practically identical: “to file” means “[t]o lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference.” Black’s Law Dictionary (6th Ed. 1991). There is no reason to interpret “to file” under § 46a-86 (e) as implicating any meaning other than its ordinary usage. The presiding hearing officer in this case was therefore required “to file” her decision with the commission and, because oral decisions cannot be filed, a written decision is mandated under § 46a-86.

Second, public policy considerations strongly support the conclusion that a presiding hearing officer may only issue a written final decision dismissing a complaint. Complaints made to the commission often implicate sensitive matters of constitutional proportions. For example, in this case the complainant claimed that her employer discriminated against her because of her race. If, as in this case, the presiding hearing officer determines that the complaint should be dismissed for failure to establish a prima facie case, the requirement that the decision be set forth in writing enhances the perception of the agency’s credibility by assuring a more thoughtful decision.

Accordingly, I am of the opinion that the time in which the commission was required to file its appeal— that is, forty-five days—did not begin to run until the hearing officer filed a written decision. This was not done until January 11, 1993. Therefore, the appeal filed on January 22, 1993, by the commission was timely.

I respectfully dissent.

       General Statutes § 4-183 (c) provides: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”

       The commission appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Wardine W. Couch was named as a defendant in the trial court, along with Windsor Hall Rest Home, Genesis Health Ventures, Inc., a foreign corporation doing business as Windsor Hall Rest Home, Genesis Health Ventures of Windsor, Inc., a foreign corporation doing business as Windsor Hall Rest Home, and Gail S. Kotowski, the presiding officer of the commission. Only the commission and the Windsor Hall Rest Home have participated in this appeal. We refer herein to Windsor Hall Rest Home as the defendant.

       General Statutes § 46a-84 (b) provides: “Upon certification of the complaint, the executive director of the commission or his designee shall appoint a hearing officer to act as a presiding officer to hear the complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before the presiding officer at a time and place to be specified in the notice, provided such hearing shall be held not later than ninety days after a finding of reasonable cause.”

       General Statutes § 4-181a provides: “contested cases, reconsideration. modification, (a) (1) Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition. (2) Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision. (3) If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming, or reversing the final decision.
      “(b) On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency’s own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.
      “(c) The agency may, without further proceedings, modify a final decision to correct any clerical error. A person may appeal that modification under the provisions of section 4-183 or, if an appeal is pending when the modification is made, may amend the appeal.”

       General Statutes § 46a-94a, which governs the commission, provides for an appeal from a “final order” of a commission hearing officer “in accordance with section 4-183.”

       General Statutes § 4-180 (c) provides: “A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency’s findings of fact and conclusions of law necessary to its decision. Findings of fact shall be based exclusively on the evidence in the record and on matters noticed. The agency shall state in the final decision the name of each party and the most recent mailing address, provided to the agency, of the party or his authorized representative. The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency.”

       In this respect, this procedure under the UAPA is analogous to that in other areas of the civil law. Pursuant to General Statutes § 51-53 and Practice Book § 4009, the time for taking an appeal runs from the rendering of a civil judgment in a nonjury case in open court in the presence of counsel.

       General Statutes § 4-189 provides: “repeal of inconsistent provisions. Any provisions in the general statutes that are inconsistent with the provisions of this chapter are repealed, provided nothing contained in this chapter shall be deemed to repeal provisions in the general statutes that provide for the confidentiality of records.”

       General Statutes § 4-180 provides in pertinent part: “contested CASES. FINAL DECISION. APPLICATION TO COURT UPON AGENCY FAILURE, (a) Each agency shall proceed with reasonable dispatch to conclude any matter pending before it and, in all contested cases, shall render a final decision within ninety days following the close of evidence or the due date for the filing of briefs, whichever is later, in such proceedings.
      “(b) If any agency fails to comply with the provisions of subsection (a) of this section in any contested case, any party thereto may apply to the superior court for the judicial district of Hartford-New Britain for an order requiring the agency to render a final decision forthwith. The court, after hearing, shall issue an appropriate order.”

       General Statutes § 46a-94a provides: “appeal to superior court from order OF presiding officer, (a) The commission on human rights and opportunities, any respondent or any complainant aggrieved by a final order of a presiding officer or any complainant aggrieved by the dismissal of his complaint by the commission may appeal therefrom in accordance with section 4-183, except venue for such appeal shall be in the judicial district in which the discriminatory practice is alleged to have occurred or in the judicial district in which such person resides or transacts business. The court on appeal shall also have jurisdiction to grant to the commission, respondent or complainant such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree enforcing or modifying and enforcing as so modified or setting aside, in whole or in part, the order sought to be reviewed.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a complainant may not appeal the dismissal of his complaint if he has been granted a release pursuant to section 46a-101.”
      General Statutes § 46a-86 (e) provides: “If, upon all the evidence, the presiding officer finds that the respondent has not engaged in any alleged discriminatory practice, the presiding officer shall state his findings of fact and shall issue and file with the commission and cause to be served on the respondent an order dismissing the complaint.”

       Section 31-125-45 of the Regulations of Connecticut State Agencies provides: “contents of orders. An order of the commission issued after hearing shall set forth the findings of fact of the hearing tribunal, its decision and, in its discretion, an opinion containing the reasons for such decision.”

       Section 31-125-46 of the Regulations of Connecticut State Agencies provides: “issuance of orders. If, upon all the evidence, the hearing tribunal finds that a respondent has engaged in any unfair employment practice, it shall state its findings of fact and shall issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice. If, upon all the evidence, the hearing tribunal finds that a respondent has not engaged in any alleged unfair employment practice, it shall state its findings of fact and shall similarly issue and file an order dismissing the complaint.”

       Section 31-125-47 of the Regulations of Connecticut State Agencies provides: “filing of orders. All orders rendered after a hearing shall be filed at the office of the commission in the city of Hartford and shall be open to public inspection during regular office hours.”

       Section 31-125-53 of the Regulations of Connecticut State Agencies provides: “service of process. Complaints, answers, orders and other process and papers of the commission may be served personally, by registered mail, by telegraph or by leaving a copy thereof in the principal office or place of business or abode of the persons to be served. The verified return of the individual serving the same, setting forth the manner of service, shall be proof of the same, and the return post-office receipt or telegraph receipt, when the service is by registered mail or telegraph, shall be proof of such service.”

       Section 46a-54-109 (a) of the Regulations of Connecticut State Agencies provides: “Final decisions and orders shall contain the names and addresses of the parties, including the Commission; findings of fact and conclusions of law listed separately; the analysis of the presiding officer; and an appropriate order and such other requirements as may be contained in Chapter 54 of the Connecticut General Statutes.”

       Section 46a-54-l.ll of the Regulations of Connecticut State Agencies provides: “The record of proceedings before the Commission shall include, but not be limited to, the complaint and amended complaint, if any, the answer and the amended answer, if any, notices of hearing, written applications, motions, orders, stenographic transcript of the record of the hearing, exhibits and other evidence made part of the record, briefs, if any, and the final decision and order of the presiding officer.”

       In this connection, the reliance of the commission on § 46a-94a is more indirect. That statute does not contain terms such as “serve” and “file.” The commission argues, nonetheless, that because § 46a-94a provides for an appeal “in accordance with section 4-183,” and because § 4-183 uses such terms, § 46a-94a must be read to mandate a written decision. The flaw in this argument, however, is that § 4-183 (c) specifically refers to § 4-180, which specifically provides for an oral decision on the record.

       We note in this connection that § 46a-54-109 of the regulations regarding final decisions and orders; see footnote 17; specifically relates to “such other requirements as may be contained in Chapter 54 of the Connecticut General Statutes.” Nothing in chapter 54—the UAPA—requires final decisions to be in writing. To the contrary, as we already have discussed, § 4-180 (c) authorizes final decisions to be rendered orally.

       Furthermore, the commission’s regulations that were in effect at the time of the complaint at issue in this case indicate that orders generally issuing from the commission must be in writing. See Regs., Conn. State Agencies § 31-125-46 (presiding officer must issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice or issue and file with the commission an order dismissing the complaint), § 31-125-47 (commission must file all orders at the office of the commission in the city of Hartford and keep such orders open to public inspection), § 31-125-53 (orders may be served personally, by registered mail, by telegraph or by leaving a copy thereof in the principal office or place of business or abode of the persons to be served). When an act may be accomplished orally, the commission’s regulations explicitly say so. See Regs., Conn. State Agencies §§ 31-125-31 and 31-125-48. This court must accord great deference to the construction given a statute by the agency charged with its enforcement. Preston v. Dept, of Environmental Protection, 218 Conn. 821, 830, 591 A.2d 421 (1991). This principle applies with even greater force to the agency’s interpretation through its own duly adopted regulations which have the same force and effect of law unless they are shown to be inconsistent with the authorizing statutes. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).

       I disagree with the majority’s analysis that the oral ruling of the presiding officer was final because the commission did not seek “either by an internal procedure or by resort to § 4-180 (a) and (b), to compel the presiding officer to reduce her oral decision to writing.” There is simply no requirement that the commission initiate such a process. In this case, eleven days after the hearing officer rendered a written decision, albeit on the motion to reargue, the commission filed its appeal. Furthermore, the majority’s concern that if a written decision were required, the appeal period could be extended indefinitely is unfounded. Although neither party is obligated to invoke § 4-180 in order to obtain a written decision, either may do so, thereby limiting the appeal period.

       As a practical matter, the appeal should not have come as a surprise to the defendant, Windsor Hall Rest Home. The hearing officer delivered an oral decision on November 4,1992, dismissing the complaint. On November 19,1992, the commission petitioned the hearing officer to reconsider the decision of dismissal. On January 11,1993, the hearing officer issued a written decision denying the petition to reconsider. This appeal followed on January 22, 1993.


text:
    Robert Barnett v. Board of Education of the Town of Fairfield
    (14987)
    Callahan, Norcott, Palmer, F. X. Hennessy and M. Hennessey, Js.

      Argued November 29, 1994
    decision released February 14, 1995

      Vito Mazza, for the appellant (plaintiff).

      Christopher M. Hodgson, for the appellee (defendant).
   Callahan, J.

The principal issue in this appeal is whether the defendant, the Fairfield board of education (board), properly terminated the employment of the plaintiff, Robert Barnett. The plaintiff had been employed by the board as an industrial arts teacher for twenty years. He had attained tenure, pursuant to General Statutes § 10-151 (a) (6) (A), because he had completed “thirty school months of full-time continuous employment for the same board of education. . . .” The plaintiffs employment was terminated by the board on September 25, 1992, as a result of a reduction in force in his department. The plaintiff appealed from the board’s decision to terminate his employment to the Superior Court, which rendered judgment dismissing his appeal. He appealed from that judgment to the Appellate Court and we transferred his appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The board had a collective bargaining agreement with the plaintiff’s bargaining unit, the Fairfield Education Association (union), in effect from July, 1990, through June, 1993. Article V of the agreement set forth the procedure for layoffs due to a reduction in force. Section 5.1.1 provided in pertinent part: “Where there are more individuals within a category than necessary to reduce, least senior teachers shall be terminated before more senior teachers, provided that those teachers remaining are the most qualified to perform the work available after the reduction . . . .” In 1990, all of the teachers in the plaintiff’s department had the same seniority status. Section 5.1.2 of the agreement provided for a point system to be used to determine the most qualified teachers. According to § 5.1.2.7 of the agreement, the points assigned to a teacher initially would remain valid for a three year period, unless the teacher or his immediate supervisor requested an update of the teacher’s job description analysis, or anecdotal report, to include new information.

On April 7,1990, the plaintiff received a letter from Ralph Burke, the personnel administrator for the Fair-field public schools, indicating that the industrial arts department would be subject to a reduction in force. The letter further indicated that each member of the department would be evaluated pursuant to the provisions of §§ 5.1.1 and 5.1.2 of the collective bargaining agreement. In response to the letter, the plaintiff’s immediate supervisor at the time, R. J. Margucci, prepared an anecdotal report and submitted it to the interim superintendent of schools, William French. On that evaluation, the plaintiff received a point assignment of eighty-one, giving him the number one ranking out of the seven members of the industrial arts department. On the basis of the evaluation, the plaintiff was not subject to dismissal at that time.

On March 15,1991, the plaintiff received another letter from Burke indicating that his department would be subject to another force reduction. The letter stated in part: “Within the last three years you and your supervisor authored an anecdotal report which was later read by the Superintendent. Normally, unless you or your supervisor requested an update for new information, the points assigned would remain valid. As a result of a recent grievance settlement—the [union] and Administration has agreed that [the superintendent of schools, Carol Harrington,] will re-evaluate all anecdotal write-ups and reassign points for those within Category D of the Industrial Arts Department.” (Emphasis in original.) The grievance referred to in the letter was that of Ronald Salamon, who also was a teacher in the department. Salamon, through the union, had filed a grievance claiming that his anecdotal report was not as complete as it should have been because of the absence of one of his supervisors. The grievance was settled between the union and the board by an agreement under which the superintendent of schools would order all of the anecdotal reports to be redone for that department. In response to the 1991 letter from Burke, the plaintiff chose not to have his report updated, and submitted the same report that he had submitted in 1990. The plaintiff thereafter received a new point assignment of sixty-one, which resulted in a ranking of sixth out of the eight teachers in the department. He subsequently received notification that he would not be subject to termination at that time.

The plaintiff filed a grievance through the union disputing the reassignment of points in 1991. The grievance was denied by the board at step four of the grievance procedure provided by the collective bargaining agreement. The union refused to pursue the matter to arbitration and the plaintiff did not pursue an action against the union for its refusal to pursue his grievance to arbitration.

In April, 1992, the plaintiff received a third letter from Burke, which notified him that his department again was subject to a potential reduction in force. This letter stated in part: “Within the last three years you and your supervisor authored an anecdotal report which was later read by the Superintendent. Unless you or your supervisor request an update for new information, the points assigned will remain valid.” (Emphasis added.) In response, the plaintiffs immediate supervisor, Margaret Mary Fitzgerald, submitted an updated anecdotal report concerning the plaintiff. The plaintiff testified that Fitzgerald encouraged him to submit an updated report, and although he did not believe that the superintendent could reassign points at that time, he told her to submit an updated report if she thought it possibly could help him. On the advice of his attorney, however, he did not sign the report. The plaintiff continued to maintain that his original evaluation resulting in an assignment of eighty-one points should have remained in effect for a period of three years. Burke testified, however, that the plaintiffs immediate supervisor requested an update of the plaintiffs anecdotal report for new information in 1992. The superintendent evaluated the plaintiffs updated anecdotal report, and again the plaintiff received a point assignment of sixty-one. As a result, the plaintiff was ranked last among the teachers in his department.

The plaintiff later received a letter, dated June 17, 1992, indicating that he was under consideration for termination due to the elimination of the position to which he had been appointed. See General Statutes § 10-151 (d) (5). The plaintiff requested a hearing before an impartial panel pursuant to § 10-151 (d). The panel of arbitrators held a hearing on August 19,1992, and issued its findings on September 16, 1992. The three panel members agreed upon findings numbers one through ten and finding number thirteen, but one member disagreed as to findings numbers eleven and twelve. The majority’s finding number eleven stated: “Sec. 5.1.2.7 of the Collective Bargaining Agreement was not revoked by the settlement of the Ronald Salamon grievance and remains in effect until the Union Membership ratifies a change or until a new contract is signed.” The majority’s finding number twelve stated: “Neither Mr. Barnett [nor] his immediate supervisor directly requested a reevaluation or reassignment of points in 1991 or 1992. Any reevaluation or reassignment of points in those years was made at the suggestion of the Superintendent of Schools, not the grievant’s immediate supervisor.” Based in part on these findings, the two member majority recommended that the plaintiff be reinstated, concluding that the plaintiff had the right to rely on the results of the 1990 assignment of eighty-one points.

The dissenting arbitrator recommended that the board terminate the plaintiff’s employment contract. To support his conclusion, the dissenting arbitrator proposed the following findings: “11. The effect of the grievance settlement on the Robert Salamon case did impact the 1991 re-evaluation and reassignment of all teachers within Category D of the Industrial Arts Department including Mr. Barnett. In order to be in compliance with the grievance settlement, the administration was obligated to include all Industrial Arts teachers within Category D in the re-evaluation and reassignment of points. 12. Mr. Barnett’s immediate supervisor, Margaret Mary Fitzgerald, requested and prepared an updated Job Description Anecdotal Report in 1992, and encouraged Mr. Barnett to participate in the updated report. The Superintendent of Schools, Dr. Carol Harrington, made the final decision on the reevaluation and reassignment of points in 1991 and 1992.”

The board held a public hearing on September 24, 1992, to consider the termination of the plaintiff’s contract. The plaintiff was notified by letter, dated September 25,1992, that the board had voted to terminate his employment. The letter stated: “The reason is that the [board] found the dissenting findings number 11 and 12 correct and therefore accepted the Superintendent’s recommendation which was predicated on the elimination of the position to which you had been appointed.”

The plaintiff appealed the board’s decision to the trial court, pursuant to General Statutes § 10-151 (f). The court dismissed the appeal, finding that the board properly had adopted the dissenting arbitrator’s findings numbers eleven and twelve and properly had terminated the plaintiff’s employment. The plaintiff raises two issues on appeal: first, whether the trial court correctly concluded that the board had acted properly in adopting the dissenting arbitrator’s findings numbers eleven and twelve; and second, whether the board adequately had apprised the plaintiff of the reason and factual basis for the termination of his employment. We affirm the judgment of the trial court.

I

“When considering termination of a tenured teacher’s employment contract, a school board ‘acts, like an administrative agency, in a quasi-judicial capacity . . . .’ Mauriello v. Board of Education, 176 Conn. 466, 469, 408 A.2d 247 (1979); Miller v. Board of Education, 166 Conn. 189, 191, 348 A.2d 584 (1974).” Tomlinson v. Board of Education, 226 Conn. 704, 712, 629 A.2d 333 (1993). “Our function in reviewing the action of the board pursuant to § 10-151 (f) is to determine whether the board has acted illegally and not to substitute our judgment for that of the board. ... A school board ‘has discretion to accept or reject a recommendation from an impartial hearing panel,’ though it is bound by the panel’s findings of fact unless unsupported by the evidence.” (Citations omitted.) Rado v. Board of Education, 216 Conn. 541, 555, 583 A.2d 102 (1990); Tomlinson v. Board of Education, supra, 713-14; see Catino v. Board of Education, 174 Conn. 414, 417-18, 389 A.2d 754 (1978). The board is bound by the panel’s findings of fact, “but not by its legal conclusions or by its recommendations.” Petrino v. Board of Education, 179 Conn. 428, 430, 426 A.2d 795 (1980).

Applying these principles to the facts before us, we conclude that the trial court correctly determined that the board properly could have adopted the dissenting arbitrator’s findings numbers eleven and twelve.

A

In finding number eleven, the majority of the arbitrators found that the settlement reached between the union and the board did not have any effect on the terms of the collective bargaining agreement and consequently did not require a reevaluation of the plaintiff’s anecdotal report in 1991. The plaintiff argues that this was a finding of fact that the board was bound to accept. We disagree.

The settlement agreement made between the union and the board stated that every teacher in the department must have his or her anecdotal reports reevaluated in 1991. Although contract interpretation generally is a question of fact; Gurliacci v. Mayer, 218 Conn. 531, 567, 587 A.2d 1029 (1991); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); the issue here is not one of contract interpretation; rather, the question is whether the settlement agreement affected the terms of the collective bargaining agreement. The determination of that question is a legal conclusion, and not a finding of fact.

“Judicial review of the conclusions of law reached administratively is . . . limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [board] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Internal quotation marks omitted.) Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5, 434 A.2d 293 (1980). “Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts.” (Internal quotation marks omitted.) Ottochian v. Freedom of Information Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992); New Haven v. Freedom of Information Commission, supra, 774; Griffin Hospital v. Commission on Hospitals & Health Care, supra, 496; Robinson v. Unemployment Security Board of Review, supra, 5.

The dissenting arbitrator’s finding number eleven concluded that “[i]n order to be in compliance with the grievance settlement, the administration was obligated to include all Industrial Arts teachers within Category D in the re-evaluation and reassignment of points.” General Statutes § 10-153e (b) (4) prohibits the board from refusing to negotiate in good faith with the union. “The duty to bargain in good faith is a term of art in labor law. It is an ongoing duty that continues after initial contract negotiations are over. ... If the contract requires arbitration of unresolved grievances, the duty to bargain in good faith includes the duty to participate in good faith in the grievance arbitration process, for dispute resolution under the grievance-arbitration process is as much a part of collective bargaining as the act of negotiating the contract.” (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, 217 Conn. 110, 120-21, 584 A.2d 1172 (1991); see also United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960) (“[t]he grievance procedure is, in other words, a part of the continuous collective bargaining process”).

The grievance regarding Salamon was brought by the union, the plaintiff’s own bargaining representative. The board agreed to comply with the demand of the union “that each member of the Industrial Arts Department have their job description analysis reevaluated and points reassigned.” This agreement was part of ongoing negotiations, and both parties had a duty to bargain in good faith during those negotiations. The parties to the collective bargaining agreement mutually agreed to suspend a contractual term for one specific department for a specific period, rather than to alter the terms of the collective bargaining agreement with the school board for the entire union membership.

That the union considered the grievance settlement to be binding under the provisions of the collective bargaining agreement is strengthened by the union’s treatment of the plaintiff’s grievance after the 1991 reassignment of points. The plaintiff filed a grievance via the union that advanced through step four of the grievance procedures, but did not proceed to the arbitration step because the union refused to represent the plaintiff further. It would be illogical for the union to argue, on the one hand, that a job description analysis had to be redone for each member of the department because of the Salamon grievance, and on the other hand, that the plaintiff could not be reevaluated because of the contract language.

The dissenting arbitrator’s finding number eleven, therefore, was correct as to the law when it concluded that “[i]n order to be in compliance with the grievance settlement, the administration was obligated to include all Industrial Arts teachers within Category D in the re-evaluation and reassignment of points.” This conclusion reasonably and logically flows from the board’s obligation to bargain in good faith with the union in the settlement of the Salamon grievance. See Ottochian v. Freedom of Information Commission, supra, 221 Conn. 397.

Because finding number eleven of the majority of the arbitrators was a conclusion of law rather than a finding of fact, the board was not bound by it. See Petrino v. Board of Education, supra, 179 Conn. 430. Because the board was obligated to honor the settlement agreement of the Salamon grievance, it did not act “unreasonably, arbitrarily, illegally, or in abuse of its discretion” in finding that the reevaluation of each teacher in the plaintiff’s department in 1991 was in compliance with the settlement agreement. New Haven v. Freedom of Information Commission, supra, 205 Conn. 774. The board, therefore, did not act illegally in adopting the dissenting arbitrator’s finding number eleven. Rado v. Board of Education, supra, 216 Conn. 555.

B

In finding number twelve, the majority of the arbitrators found that neither the plaintiff nor his immediate supervisor had requested a reevaluation in 1991 or 1992. The dissenting arbitrator’s finding number twelve, however, states, to the contrary, that the plaintiff’s immediate supervisor did request an update for new information in 1992. Both of these statements are findings of fact. “A school board ‘has discretion to accept or reject a recommendation from an impartial hearing panel,’ though it is bound by the panel’s findings of fact unless unsupported by the evidence.” Rado v. Board of Education, supra, 216 Conn. 555. The evidence to support a finding, however, must be substantial. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). Our inquiry, therefore, is limited to determining whether the majority’s or the dissenting arbitrator’s finding number twelve was supported by substantial evidence.

“This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966) . . . .” (Citations omitted; internal quotation marks omitted.) Id., 541-42.

The plaintiff’s employment was subject to termination because of the superintendent’s 1992 assignment of points. As previously noted, § 5.1.2.7 of the collective bargaining agreement provided: “Unless the teacher or immediate supervisor requests an update for new information, the points assigned will remain valid for a three-year period.” If the plaintiff or his supervisor had requested an update in 1992, then the assignment of points conducted in 1992 was proper, and the plaintiff’s employment was subject to termination because he was ranked last among the teachers in his department. Upon review of the record as a whole, we conclude that there was not substantial evidence to support finding number twelve of the majority of the arbitrators and there was substantial evidence to support the dissenting arbitrator’s conclusion that the plaintiff’s immediate supervisor requested an update for new information. The assignment of sixty-one points that the plaintiff received in 1992, therefore, was valid, and the board did not act illegally when it terminated the plaintiff’s employment.

The letter, dated April 20, 1992, that the plaintiff received informing him that his department was subject to a potential reduction in force stated: “Unless you or your supervisor request an update for new information, the points assigned will remain valid.” When the plaintiff received this letter he had a choice—he could either retain the point assignment that he had received in 1991, i.e., sixty-one, or have his supervisor submit an updated report and accept the new points assigned as a result of the new report. The plaintiff, at the prompting of his immediate supervisor, chose the latter.

The plaintiff testified at his termination hearing before the panel of arbitrators that, although he thought that the point assignments could not be evaluated again, “Fitzgerald told me she felt that [b]y submitting an update I could possibly raise my points.” The plaintiff “wrote a letter to Mrs. Fitzgerald and wrote a letter to Mr. [Bob] Anderson, my immediate supervisor [at the high school] .... I said very clearly I didn’t feel [the evaluation] could be done, if they felt it could be done, and they had factual information they could attest to which represented my character as a teacher and my classroom performance,” they should submit that information. In response, Fitzgerald received a letter from Anderson attesting to the plaintiff’s credentials and submitted an updated anecdotal report to the superintendent. Burke also testified that the plaintiff’s immediate supervisor requested an update for new information in 1992. The point assignment of sixty-one that the plaintiff received as a result of the 1992 evaluation resulted in his contract termination.

The plaintiff argues that neither he nor his immediate supervisor requested an update for new information because their actions in submitting the updated anecdotal report were prompted by the letter that the plaintiff had received from Burke. The letter from Burke, however, was not a notification of a mandatory department-wide reevaluation regardless of whether the members of the department submitted updated anecdotal reports. Rather, it was a “form letter” indicating that the plaintiff had the option either to be reevaluated or to retain his last point assignment. The plaintiff, through his immediate supervisor, chose to submit an updated anecdotal report and be reevaluated because his points potentially could have been increased.

The record reflects substantial evidence on which the board properly could rely in adopting the dissenting arbitrator’s finding number twelve. See Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 542 (“ ‘The reviewing court must take into account [that there is] contradictory evidence in the record . . . but “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . On the other hand, evidence that the plaintiff or his immediate supervisor did not request an update of the plaintiff’s anecdotal report is contrary not only to the testimony of others, but also to the plaintiff’s own testimony and to the exhibits produced at the hearing. Because substantial evidence existed to support the dissenting arbitrator’s finding number twelve, the board did not act illegally when it adopted that finding. See Rado v. Board of Education, supra, 216 Conn. 555.

II

The plaintiff next claims that the board violated his due process rights when it did not adequately apprise him of the reason and factual basis for his termination. “[A] tenured teacher discharged for cause under . . . § 10-151 [d] is entitled, as a matter of constitutional law, to a written statement of the decision reached, the reasons for the determination, and a fair summary of the evidence relied upon.” Lee v. Board of Education, 181 Conn. 69, 79, 434 A.2d 333 (1980).

In the present case, the plaintiff had been informed by letter, dated June 17,1992, that he was under consideration for termination due to the elimination of the position to which he had been appointed. See General Statutes § 10-151 (d) (5). The plaintiff requested a hearing before an impartial panel, which was held on August 19, 1992. The board subsequently held a public hearing to consider the termination of the plaintiff’s employment. Finally, the plaintiff was notified in writing that, “after considering the findings and recommendations of the Hearing panel,” the board voted to terminate his employment. The letter stated that the reason for the termination was the elimination of his teaching position and the board’s acceptance of findings numbers eleven and twelve of the dissenting arbitrator. By incorporating the findings of the panel of arbitrators and specifying that it had adopted the dissenting arbitrator’s findings numbers eleven and twelve, the board adequately apprised the plaintiff of a fair summary of the evidence upon which it had relied.

A board’s decision does not have to be recited in great detail; Bartlett v. Krause, 209 Conn. 352, 380, 551 A.2d 710 (1988); but, rather, must be sufficient to allow the reviewing court to determine whether the board acted illegally. Lee v. Board of Education, supra, 181 Conn. 82 n.12. The plaintiff was notified, in writing, of the decision of the board, the reasons for the determination and a fair summary of the evidence relied upon by the board. Thus, the plaintiff was given adequate notification of the reasons for the termination of his employment and recitation of the evidence that was sufficient to allow the court to review the board’s action. Therefore, the trial court properly dismissed the plaintiff’s appeal.

The judgment is affirmed.

In this opinion the other justices concurred.

       Section 5.1 of the collective bargaining agreement set forth five categories, labeled A through E, into which teachers were placed based on seniority. In 1990, the plaintiff and all of the teachers in his department were in category D, defined as: “Tenured teachers with professional Certification with ten or more years of contractual service in the Fairfield Public Schools.”

       Section 5.1.2.5 of the collective bargaining agreement provided, inter alia, that the teacher’s “immediate supervisor will complete a Job Description Analysis . . . [and] will assess the teacher’s qualifications by writing comments for each of the five items in the job description.” The job description analysis also is referred to as an “anecdotal report.”

       The language of this letter and the letter dated March 15, 1991, are virtually identical, with the exception of the language in the 1991 letter quoted above, which specifically refers to the grievance settlement. The plaintiff referred to the letter as a “form letter.”

       General Statutes § 10-151 (d) provides in relevant part: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons ... (5) elimination of the position to which the teacher was appointed .... Prior to terminating a contract, a board of education shall vote to give the teacher concerned a written notice that termination of such teacher’s contract is under consideration and, upon written request filed by such teacher with such board within seven days after receipt of such notice, shall within the next succeeding seven days give such teacher a statement in writing of the reasons therefor. Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated for the reasons stated in subdivision (5) of this subsection. ...”

       General Statutes § 10-151 (f) provides in relevant part: “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, within thirty days of such decision, to the superior court. . . . The court, upon such appeal, shall review the proceedings of such hearing and shall allow any party to such appeal to introduce evidence in addition to the contents of such transcript, if it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court, upon such appeal and after a hearing thereon, may affirm or reverse the decision appealed from. Costs shall not be allowed against the board of education unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. . . .”

       The plaintiff also raises the issue of whether the board acted properly in deviating from the terms of the collective bargaining agreement. Because finding number eleven, of both the majority and the dissent, directly deals with whether the grievance settlement affected the terms of the collective bargaining agreement, this issue is merely a reiteration of the plaintiff’s first issue, and we do not address it separately.

       General Statutes § 10-153e (b) provides in relevant part: “The local or regional board of education or its representatives or agents are prohibited from ... (4) refusing to negotiate in good faith with the employees’ bargaining agent or representative . . . .”

       Article II of the collective bargaining agreement provided a procedure by which the parties could modify the agreement. It stated that “[i]f during the life of this contract, substantial changes in the school organization, instructional practices and/or program structures should render the language in any part of this contract inappropriate,” the parties shall attempt to translate the language of the contract into language appropriate for the new situation. (Emphasis added.) The plaintiff argues that because the procedure set forth in article II was not followed with regard to the grievance settlement, the collective bargaining agreement could not have been modified, and the plaintiff’s assignment of points in 1990 would remain valid for three years. The contingencies highlighted in article II, however, were not present. Because the grievance settlement was part of the ongoing collective bargaining process, the parties to the contract were able to agree to suspend the contractual term in one instance without amending the contract.

       The plaintiff may have been able to pursue an action against the union for breach of its statutory duty of fair representation in its handling of the grievance. “If a union fails to submit a meritorious grievance to arbitration, an employee may sue the union for breach of its duty of fair representation.” Tedesco v. Stamford, 222 Conn. 233, 248, 610 A.2d 574 (1992).

       Even if we were to agree with the plaintiff, however, that the 1992 point assignment was invalid, we still would uphold the board’s action. As a result of the 1991 reassignment of points, which we have held was proper in light of the Salamon grievance settlement, the plaintiff received an assignment of sixty-oné points. Thus, even without the reassignment in 1992, the plaintiff still would have been the teacher with the fewest points in 1992 and, therefore, subject to termination.

       Anderson was the plaintiffs immediate supervisor at the high school where the plaintiff held four-tenths of a position.

       “The fourteenth amendment to the United States constitution prohibits any state from depriving any person of ‘life, liberty, or property, without due process of law.’ Article [first], section eight of our state constitution contains the same prohibition and is given the same effect as the fourteenth amendment to the federal constitution. Miller v. Heffernan, 173 Conn. 506, 516, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978). Our analysis of the plaintiffs claim, therefore, encompasses both provisions.” Lee v. Board of Education, 181 Conn. 69, 71-72, 434 A. 2d 333 (1980).