author: Berdon, J.

text:
    Electrical Contractors, Inc. v. Betty L. Tianti, Commissioner of Labor, et al.
    (14335)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued March 24
    decision released August 18, 1992

      Wesley W. Horton, with whom were Susan M. Cormier and Bruce H. Stanger, for the appellant (plaintiff).

      William J. McCullough, assistant attorney general, with whom were Beth Z. Margulies, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellees (defendants).
   Berdon, J.

The principal issue in this appeal is the determination of what constitutes a violation of General Statutes § 31-53 that would subject a public works contractor to placement on what is commonly referred to as the “debarment list” pursuant to General Statutes § 31-53a. Pursuant to § 31-53a, any person or firm appearing on such a list shall not be awarded a contract by the state for a three year period. In this appeal, the defendant deputy commissioner of labor, Lawrence S. Fox (deputy commissioner), in lieu of the defendant commissioner of labor, Betty L. Tianti (commissioner), who disqualified herself, determined that the plaintiff, Electrical Contractors, Inc., was subject to placement on the debarment list because it had disregarded its obligations under § 31-53, the prerequisite for debarment. The trial court dismissed the plaintiff’s appeal, and we reverse.

The following facts are not disputed. On June 11, 1986, the plaintiff entered into a contract with the state of Connecticut to install electrical smoke and fire alarms in dormitories at the University of Connecticut in Storrs (UConn project). The plaintiff signed a “Contract or Wage Certification Form” certifying that it and its subcontractors would pay all employees on the UConn project the appropriate wages as listed in the schedule of prevailing wage rates, which was attached to the form. The commissioner set the schedule of prevailing wage rates on the basis of the federal schedule of prevailing wage rates, which has been the basis for determining rates for public works contracts since 1977. The prevailing rate schedule for the UConn project contained an hourly wage rate for each job classification, as well as a separate amount under each classification for total benefits.

The plaintiff commenced work on the UConn project in March, 1987. A short time later, the plaintiff learned that it would have to suspend work from May 9 to May 18,1987, a period encompassing six working days, to minimize noise while the students prepared for final exams. As a consequence, the plaintiff proposed the following to its employees: (1) that they work forty-eight hours per week, beginning with the week ending March 21,1987, and continuing for six consecutive weeks; (2) that they be paid for forty hours of work for each of these forty-eight hour work weeks; and (3) that they receive regular pay for the extra hours worked when the job was shut down and no work was performed. The employees were informed that if they chose not to accept the proposal, they would be placed at another job site. Twelve of thirteen employees agreed to accept the proposal.

As a result, the plaintiff had its employees work forty-eight hours a week for seven weeks to replace the seven working days that would be missed during the shut down period. The plaintiff kept three sets of records, one accurately disclosing the time worked and two incomplete sets, each showing only partial hours worked per week. As for the eight registered apprentices on the UConn project, the plaintiff calculated their pay by adding the journeyperson’s wage rate to the amount of total benefits and multiplying that amount by the percentage applicable to each apprentice.

Subsequently, one of the plaintiffs employees on the UConn project signed an affidavit stating that he and other employees had worked forty-eight hours per week during this period but had been paid only for forty hours. The affidavit was delivered to the defendant department of labor (department), which commenced an investigation. As a result of the investigation, the department initiated hearings.

The hearing officer determined that the plaintiff had violated § 31-53a by disregarding its obligations under § 31-53 to its employees in that it failed to pay them overtime for time worked in excess of forty hours per week for a seven week period, had failed to pay its apprentice employees 100 percent of the total benefits rate, and had failed to keep true and accurate records. The total amount found to be due to the employees was $5376.19. The plaintiff complied with the department’s order to reimburse its employees the amount owed. The deputy commissioner adopted the findings of facts and decision of the hearing officer and ordered the name of the plaintiff’s firm to appear on the debarment list. No other firm had previously been placed on this list.

The plaintiff appealed the decision of the deputy commissioner to the Superior Court. The trial court affirmed the deputy commissioner’s decision and dismissed the plaintiff’s administrative appeal. The court rejected the plaintiff’s claim that the word “disregard,” for the purpose of debarment pursuant to § 31-53a, requires willful or knowing conduct. The court then held that the plaintiff had disregarded its obligations under § 31-53 by (1) not paying its employees overtime wages, (2) failing to pay its apprentices the proper amount, and (3) failing to keep true and accurate records. The trial court further concluded that the commissioner had properly adopted the applicable federal wage rate determinations. Lastly, the court rejected the plaintiffs argument of selective prosecution.

In this appeal, the plaintiff essentially pursues the claims that it raised before the trial court. We affirm the trial court’s conclusion that the commissioner needs to find only that a firm negligently disregarded its obligations in order to trigger debarment under § 31-53a. We reverse the trial court’s conclusion that the plaintiff’s failure to pay overtime wages constituted a violation of § 31-53 (a) in that overtime is a rate “customary or prevailing” for the same work as that done on the UConn project. We reverse the trial court’s conclusion that the plaintiff was put on notice as to the proper computation of apprentice wage rates. Because we agree with the trial court that the plaintiff failed to keep and maintain true and accurate records, we conclude that on remand the commissioner must determine whether that violation alone is a sufficient ground for debarment under § 31-53a.

I

“Disregard” op the Plaintiff’s Obligation

The plaintiff first claims that any alleged violations of § 31-53 did not warrant debarment because they were not intentional or willful. Section 31-53a authorizes and directs the labor commissioner to place on the debarment list the names of any firm “found to have disregarded their obligations under said section 31-53 to employees and subcontractors . . . .” Relying on the definition of “disregard” in Black’s Law Dictionary (5th Ed.), the trial court concluded that an employer “disregards his obligations to employees within the meaning of the § 31-53a when he ignores, overlooks or fails to observe such obligations.” Although the plaintiff agrees with this definition, it nonetheless claims that the trial court improperly construed the word to include violations that are not intentional or willful. We disagree with the plaintiff.

The trial court properly accorded the word “disregard” its common, everyday definition. “Words and phrases of a statute are to be construed according to the commonly approved usage of the language.” Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); see General Statutes § 1-1 (a). To support its position, the plaintiff claims that a different dictionary, the American Heritage Dictionary of the English Language, Second College Edition (1991), should be followed. The American Heritage Dictionary of the English Language defines “disregard” under its noun definition to mean “lack of thoughtful attention or due regard, esp. when willful.” Even the plaintiff’s definition, however, includes negligent conduct. Moreover, the plaintiff conceded at oral argument that its preferred construction of “disregard” as only willful conduct is strained. Accordingly, we adopt the commonly approved definition of “disregard,” which does not require intentional or willful conduct.

The plaintiff also argues that if we condition debarment on conduct that is neither intentional or willful, we would leave employers open to the drastic sanction of debarment for a minor error of a few dollars. The answer is that if the legislature had wished to condition debarment on intentional or willful conduct, then it could have said so. See Buonocore v. Branford, 192 Conn. 399, 403, 471 A.2d 961 (1984). For example, in subsection (b) of § 31-53, the legislature specifically required a finding that an employer “knowingly or willfully” employed workers at a wage rate less than the customary or prevailing rate before the employer would be subject to a fine. Furthermore, under such drastic circumstances the employer would still have recourse to the argument that the commissioner had acted arbitrarily and capriciously. We agree, therefore, with the trial court that conduct that is merely negligent will suffice to support a finding that an employer disregarded its obligations under § 31-53 in order to trigger debarment under § 31-53a.

II

Failure to Pay Overtime Wages

We turn next to the plaintiffs claim that the failure to pay overtime wages, although a violation of General Statutes § 31-76c, does not constitute a failure to pay the customary or prevailing wage rate pursuant to § 31-53 (a) and, therefore, does not call for the sanction of debarment. The trial court, however, agreed with the commissioner that the payment of overtime wages is customary in the plaintiffs trade and, therefore, any overtime violation is a violation of the employer’s obligation under § 31-53 (a). The plaintiff argues that even though it violated § 31-76c by failing to pay overtime wages, overtime is neither expressly incorporated in § 31-53 as a “customary” wage rate, or impliedly incorporated by reference in § 31-53 (f) to a different statute. We agree with the plaintiff.

Section 31-53 (a) requires that employees in public works projects receive wages “at a rate equal to the rate customary or prevailing for the same work in the same trade or occupation in the town in which such public works project is being constructed.” (Emphasis added.) The plaintiff argues that the plain language of the statute indicates that the phrase “customary or prevailing” constitutes a unitary term, with both words having the same meaning. The commissioner argues that the words “customary” and “prevailing” within the phrase “customary or prevailing” mean different things. We agree with the plaintiff for the following reasons.

First, subsection (a) of § 31-53 refers to “rate” in the singular, thereby indicating that there is only one rate, not a “customary rate” and a “prevailing rate.” Second, the commissioner received her authority to determine the prevailing rate of wage under § 31-53 (d). Subsection (d) authorizes the commissioner to determine only the “prevailing rate of wage.” The statute does not provide comparable methods for determining what would constitute a “customary rate of wage.” Subsection (e), the certification procedure, lends itself to the same construction. This subsection requires every contractor on a public works project to “certify, under oath, to the labor commissioner the pay scale to be used by such contractor . . . .” The commissioner concedes that the “Contractor Wage Certification Form,” supplied by the commissioner and signed by the plaintiff, pertained to the prevailing rate only and did not include overtime rates. Moreover, subsection (e) states that the hourly rate of wage and the benefits contribution or payment shall be considered the “minimum rate,” and there is no mention of overtime calculations as forming a part of this minimum rate. Indeed, except for subsections (a) and (b), which refer to the “customary or prevailing” wage rate, the gravamen of the statute focuses on the prevailing rate of wage.

Third, we are not persuaded by the commissioner’s argument that the reference in subsection (f) of § 31-53 to the investigative provisions of General Statutes § 31-59 and the enforcement provisions of General Statutes § 31-69 impliedly incorporate the overtime provisions of General Statutes § 31-60. This is reading something into the statute that is not there. We decline to follow such a tortuous analysis because it ignores the plain language of subsection (f), which incorporates only those provisions listed. “Our role is to construe legislation as we find it, regardless of whether we think it might have been improved or a preferable result reached by the inclusion of other provisions.” Galullo v. Waterbury, 175 Conn. 182, 186, 397 A.2d 103 (1978); see also American-Republican, Inc. v. Waterbury, 183 Conn. 523, 529, 441 A.2d 23 (1981).

Moreover, the Davis-Bacon Act; 40 U.S.C. § 276a-2; which the department claims is the model for § 31-53, does not include overtime wages as a factor in determining the prevailing wage obligation. The federal regulations confirm that the obligation to pay overtime wages is made on the basis of other statutes: “The [Davis-Bacon Act] excludes amounts paid by a contractor or subcontractor . . . in the computation of overtime under the Fair Labor Standards Act, the Contract Work Hours and Safety Standards Act, and the Walsh-Healey Public Contracts Act whenever the overtime provisions of any of these statutes apply concurrently with the Davis-Bacon Act or its related prevailing wage statutes.” 29 C.F.R. § 5.32 (a). That the Davis-Bacon Act does not include payment for overtime obligations is persuasive authority for our interpretation of what is required in regard to the payment of the prevailing rate of wage. See Ox Ridge Hunt Club, Inc. v. Tax Commissioner, 175 Conn. 90, 93, 394 A.2d 194 (1978).

On the basis of our construction of the statute, we hold that overtime is not a “customary or prevailing” wage obligation under § 31-53. It is important to note that there are remedies and penalties independent of the debarment statute for violations of overtime hours and wages. General Statutes §§ 31-68 and 31-69 provide both a civil remedy and criminal penalties for such violations. We conclude that the trial court incorrectly affirmed the decision of the deputy commissioner that the plaintiff “disregarded” its obligations under § 31-53 when it committed a violation of the overtime statutes. Accordingly, the decision of the deputy commissioner to place the plaintiff on the debarment list cannot be premised on the plaintiffs admitted violation of the overtime provisions of § 31-76c.

III

Apprentice Wages

The plaintiff next claims that the trial court improperly concluded that the plaintiff’s method of calculating payment to its eight registered apprentices on the UConn project was a ground for placing it on the debarment list. The trial court affirmed the deputy commissioner’s conclusion that the plaintiff should have calculated the apprentices’ pay on the basis of a percentage of the journeyperson’s wages, plus the full amount of the joumeyperson’s “total benefits. ” Instead, the plaintiff argues that it paid the apprentices on the basis of a percentage of both the hourly rate and total benefits because it was not put on notice as to the proper method of calculation. We agree with the plaintiff.

Neither §§ 31-53 and 31-53a nor the regulations enacted thereunder mention apprentice wages. We first look, therefore, to the federal prevailing wage rate determinations as adopted by the commissioner pursuant to § 31-53 (d). The schedule of prevailing rates required for the UConn project stated: “Apprentices duly registered . . . are allowed to be paid the appropriate percentage of the prevailing [journeypersons] rate, provided the work site ratio shall not be less than one full-time journey-person instructing and supervising the work of each apprentice in a specific trade.” (Emphasis added.) Although the trial court found the prevailing wage rate schedule to be unclear as to apprenticeship wages, both the plaintiff and the commissioner claim that its plain language supports their conflicting positions.

The plaintiff claims that the prevailing wage rate schedule authorized its method of calculating apprentice wages. The schedule contains two columns of figures: (1) the prevailing rates of wages (hourly rate); and (2) the employee welfare contributions (total benefits). The first paragraph of the prevailing wage rate schedule states that employers who are not required to pay employee welfare contributions to a welfare and pension fund must pay that amount directly to each employee as part of his or her hourly wage. The plaintiff argues that, therefore, the schedule itself combines the total benefits and hourly rates into one hourly wage under certain circumstances. That being the case, the plaintiff argues, then the schedule, in its authorization to employers to pay apprentices “the appropriate percentage of the prevailing [journeypersons] rate,” must regard the “rate” as a combination of the hourly rate plus the total benefits.

Conversely, the commissioner claims that the prevailing wage rate schedule is equally clear in its mandate that apprentices shall receive 100 percent of the fringe benefits. The commissioner argues that the wage rate determinations of the United States secretary of labor under the Davis-Bacon Act and other related acts, which were adopted by the commissioner, include both a “basic hourly rate” and a “fringe benefits” amount, in separate columns, for each job classification. Similarly, the state’s prevailing wage rate schedule issued to the plaintiff for the UConn project differentiates between the “hourly rate” and the “total benefits” amount for each job classification. The commissioner argues that the figures are separate to show that the two columns should not be combined when determining the apprenticeship wages. Moreover, the commissioner reads the plain language of the sentence directing the payment of the welfare and pension fund directly to the employees in certain circumstances to require that the actual amount listed in the “total benefits” column be paid to each employee. The commissioner states that it is significant that the term “rate” is used only with respect to the hourly rate and not to the amount of total benefits. Therefore, according to the commissioner, when the prevailing wage rate form stated that “apprentices . . . [are] allowed to be paid the appropriate percentage of the prevailing [journey-persons] rate,” it can be read so as to include “hourly rates” only and not “total benefits” because they are not listed as a “rate.”

We agree with the trial court that the language of the prevailing wage rate form that was supplied by the commissioner was not sufficiently clear for the commissioner to claim now that the plaintiff was aware of the proper computation of apprentices wages. Accordingly, we will turn to the other sources relied upon by the trial court in its affirmance of the deputy commissioner’s finding that the plaintiff had notice of the appropriate method to pay apprentices.

In 1983, the office of job training, the designated state apprenticeship agency under the department, sent the plaintiff copies of three virtually identical letters for different projects. The trial court held that the letters establish the required payment method proposed by the department. Because we conclude that the letters, alone, were insufficient to put the plaintiff on notice as to the correct payment procedure for the apprentice wages, we reverse the trial court.

First, the letters are not clear on their face. Each letter contained the names of the registered apprentices for the project and stated: “The apprentices must be paid the percentage of the program completion rate which is $8.00 or the project [journeyperson’s] rate, whichever is higher, plus the amount of fringe benefits listed on the wage determination for the classification.” The trial court concluded that the word “percentage,” as used in the letters, applied only to the program completion rate of $8 or the journeyperson’s rate ([% x $8] + fringe benefits). It is a reasonable interpretation, however, that the word “percentage” applies also to the end of the sentence reading “plus the amount of fringe benefits listed” (% [$8 + fringe benefits]). If that is the case, then the plaintiff’s method of calculating apprenticeship wage rates could have been proper.

Second, the reference to the federal regulations do not definitively establish the proper method. Each letter concluded with a statement that “[e]ach apprentice program sponsor must meet the requirements of [the] Labor Department regulations on Equal Opportunity in Apprenticeship per CFR 29 Part 5.” The letters apparently referred the plaintiff to 29 C.F.R. § 5.5 (a) (4) (iii), which is entitled “Equal employment opportunity,” and states that “[t]he utilization of apprentices, trainees and [journeypersons] under [part five] shall be in conformity with the equal employment opportunity requirements. . . .” This section, § 5.5 (a) (4) (iii), is the only section in 29 C.F.R. part five that has reference to equal employment opportunities. This section, however, says nothing about the proper calculation of apprenticeship wages or fringe benefits. Accordingly, we conclude that the three letters sent to the plaintiff did not express the department’s required method of calculating apprenticeship wages.

Third, the method the plaintiff used to calculate apprentice wages on the UConn project was the same method it had used in 1984 on other state projects. The labor department reviewed the wage records on those projects and did not object to this method of determining payments to the apprentices. The plaintiff argues that although the department reviewed the plaintiffs wage records for prevailing wage rate violations, it found no violations. The plaintiff claims on appeal that the trial court mischaracterized this argument as one of estoppel. Although this evidence would not prove estoppel, we agree with the plaintiff that it demonstrates, at a minimum, the department’s own confusion as to the proper method of paying apprentices. We conclude that the plaintiff was not put on notice by the department about the proper calculation of apprentice wage rates. We hold, therefore, that the commissioner may not use the plaintiff’s alleged violation of apprentice wage rates as a ground for placing the plaintiff on the debarment list.

IV

Failure to Keep Proper Records

The plaintiff also claims that the trial court improperly affirmed the deputy commissioner’s conclusion that the plaintiff disregarded its obligation under § 31-53 because of its failure to keep and maintain true and accurate wage and hour records. The deputy commissioner and the court premised their holding on the following facts found by the hearing officer. The plaintiffs foreperson at the UConn project job site maintained three separate sets of records regarding hours worked. One set of records, known as goldenrods, indicated that the employees worked forty hours a week, Monday through Thursday, from March 28, 1987, through May 2, 1987. The second set of goldenrods indicated that employees worked eight hours on Fridays during that time. A third set of records, called the black and white log book, properly reflected the actual time the employees worked. The payroll registers improperly indicated that the employees had been paid (1) for forty hours when, in fact, no work had been performed, and (2) for forty hours for the weeks in which the employees had worked forty-eight hours. The time cards were also inaccurate. When the investigation against the plaintiff commenced, the plaintiff initially showed the department the inaccurate goldenrods.

On appeal, the plaintiff makes three arguments: (1) because the records failed to show the amount of overtime worked, which is not a prevailing wage rate violation, the violation did not constitute a violation under § 31-53; (2) an employer does not disregard its obligations “to employees” if it disregards its record keeping duties under § 31-53 (f); and (3) a record keeping violation of § 31-60-12 of the Regulations of Connecticut State Agencies does not constitute a violation of § 31-53 (f). We disagree with each of the plaintiff’s claims.

A

The plaintiff first claims that if we conclude that overtime violations do not constitute a prevailing wage rate violation under § 31-53, any error in the records pertaining to overtime cannot be a basis for debarment under § 31-53a. We disagree with the plaintiff. Section 31-53 (f) imposes on public work contractors an independent duty to keep and maintain true and accurate records “relating to the wages and hours worked by each employee ... in such manner and form as the labor commissioner establishes to assure the proper payments due to such employees . . . under [§ 31-53] . . . .” Although the legislature is seeking to assure proper payment under § 31-53, the plain language of subsection (f) refers to all the wages and all the hours worked, which, of course, includes overtime wages and hours. Records that reflect hours not worked, as well as records that do not reflect the actual hours worked, constitute a violation of the record keeping provision of § 31-53 (f) because, without accurate records, there can be no assurance that the employees are receiving proper payment under § 31-53.

B

The plaintiff next claims that the language of § 31-53a limits debarment to employers who “disregard” their obligations “to employees,” and that record keeping violations do not constitute such an obligation to employees. Therefore, the plaintiff argues that it cannot be placed on the debarment list for a record keeping violation. We disagree.

Although § 31-53a does not define “obligations to employees,” § 31-53a-l (b) of the Regulations of Connecticut State Agencies does not distinguish between “obligations to employees” and other obligations. Section 31-53a-l (b) defines “disregarded their obligations” to include a failure to keep records as required by § 31-53. In this instance, we accord great deference to the “agency’s interpretation of its own duly adopted regulations.” Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Accordingly, the plaintiff disregarded its obligations to its employees when it failed to keep accurate records regarding the employees’ overtime wages and hours.

C

The plaintiff also claims that a record keeping violation of § 31-60-12a of the Regulations of Connecticut State Agencies, upon which the commissioner relies, does not constitute a violation of § 31-53 (f). The parties agree that the commissioner has not promulgated any record keeping regulations under § 31-53 (f). General Statutes § 31-66, which is expressly incorporated in § 31-53 (f), requires that “[e]ach employer . . . shall keep ... a true and accurate record ... as required by the applicable regulations issued by the labor commissioner . . . .’’(Emphasisadded.) Section31-66 is included in part I of chapter 558 of the General Statutes. General Statutes § 31-60, which is also in part I of chapter 558, authorizes the commissioner, after appropriate consultations, to adopt regulations for all of part I of chapter 558.

Pursuant to § 31-60, the commissioner promulgated § 31-60-12 (a) and § 31-60-12 (c) of the Regulations of Connecticut State Agencies, which require, inter alia, that the employer keep true and accurate records for each employee for three years and that those records include each employee’s total weekly hours, his total hourly, daily or weekly wages, his overtime wage as a separate item from his basic wages, and his total wages paid each pay period. Because § 31-66 is incorporated by reference in § 31-53 (f), and because the regulations adopted pursuant to § 31-60 are applicable to § 31-66, the regulation requirement of subsection (f) is clearly satisfied by the adoption of § 31-60-12 (a) et seq. There is no need for the commissioner to adopt separate record keeping regulations that address only § 31-53.

We hold, therefore, that the plaintiff violated its obligation to keep and maintain true and accurate records under § 31-53 (f). We conclude that on remand the commissioner must determine whether the types of violations that the plaintiff committed in regard to record keeping should subject the plaintiff to debarment.

The judgment is reversed and the ease is remanded to the trial court with direction to remand the case to the commissioner for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 31-53 provides: “(a) Each contract for the construction, remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project by the state or any of its agents, or by any political subdivision of the state or any of its agents, shall contain the following provision: ‘The wages paid on an hourly basis to any mechanic, laborer or workman employed upon the work herein contracted to be done and the amount of payment or contribution paid or payable on behalf of each such employee to any employee welfare fund, as defined in subsection (h) of this section, shall he at a rate equal to the rate customary or prevailing for the same work in the same trade or occupation in the town in which such public works project is being constructed. Any contractor who is not obligated by agreement to make payment or contribution on behalf of such employees to any such employee welfare fund shall pay to each employee as part of his wages the amount of payment or contribution for his classification on each pay day.’
      “(b) Any person who knowingly or wilfully employs any mechanic, laborer or workman in the construction, remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project for or on behalf of the state or any of its agents, or any political subdivision of the state or any of its agents, at a rate of wage on an hourly basis which is less than the rate customary or prevailing for the same work in the same trade or occupation in the town in which such public works project is being constructed, remodeled, refinished, refurbished, rehabilitated, altered or repaired, or who fails to pay the amount of payment or contributions paid or payable on behalf of each such employee to any employee welfare fund, or in lieu thereof to the employee, as provided by subsection (a), shall be fined not more than one hundred dollars for each offense. In addition, if it is found by the contracting officer representing the state or political subdivision thereof that any mechanic, laborer or workman employed by the contractor or any subcontractor directly on the site for the work covered by the contract has been or is being paid a rate of wages less than the rate of wages required by the contract to be paid as required by this section, the state or contracting political subdivision thereof may, by written notice to the contractor, terminate such contractor’s right to proceed with the work or such part of the work as to which there has been a failure to pay said required wages and to prosecute the work to completion by contract or otherwise, and the contractor and his sureties shall be liable to the state or the contracting political subdivision for any excess costs occasioned the state or the contracting political subdivision thereby. The contracting department of the state or the political subdivision thereof shall within two days after taking such action notify the labor commissioner in writing of the name of the contractor or subcontractor, the project involved, the location of the work, the violations involved, the date the contract was terminated, and steps taken to collect the required wages.
      “(c) The labor commissioner may make complaint to the proper prosecuting authorities for the violation of any provision of subsection (b).
      “(d) For the purpose of predetermining the prevailing rate of wage on an hourly basis and the amount of payment or contributions paid or payable on behalf of each employee to any employee welfare fund, as defined in subsection (h), in each town where such contract is to be performed, the labor commissioner shall (1) hold a hearing at any required time to determine the prevailing rate of wages on an hourly basis and the amount of payment or contributions paid or payable on behalf of each employee to any employee welfare fund, as defined in subsection (h), upon any public work within any specified area, and shall establish classifications of skilled, semiskilled and ordinary labor, or (2) adopt and use such appropriate and applicable prevailing wage rate determinations as have been made by the Secretary of Labor of the United States under the provisions of the Davis-Bacon Act, as amended.
      “(e) The labor commissioner shall determine the prevailing rate of wages on an hourly basis and the amount of payment or contributions paid or payable on behalf of such employee to any employee welfare fund, as defined in subsection (h), in each locality where any such public work is to be constructed, and the agent empowered to let such contract shall contact the labor commissioner, at least ten but not more than twenty days prior to the date such contracts will be advertised for bid, to ascertain the proper rate of wages and amount of employee welfare fund payments or contributions and shall include such rate of wage on an hourly basis and the amount of payment or contributions paid or payable on behalf of each employee to any employee welfare fund, as defined in subsection (h), or in lieu thereof the amount to be paid directly to each employee for such payment or contributions as provided in subsection (a) for all classifications of labor in the proposal for the contract. The rate of wage on an hourly basis and the amount of payment or contributions to any employee welfare fund, as defined in subsection (h), or cash in lieu thereof, as provided in subsection (a), shall, at all times, be considered as the minimum rate for the classification for which it was established. Prior to the award of any contract subject to the provisions of this section, such agent shall certify in writing to the labor commissioner the total dollar amount of work to be done in connection with such public works project, regardless of whether such project consists of one or more contracts. Upon the award of any contract subject to the provisions of this section, the contractor to whom such contract is awarded shall certify, under oath, to the labor commissioner the pay scale to be used by such contractor and any of his subcontractors for work to be performed under such contract.
      “(f) Each employer subject to the provisions of this section or section 31-54 shall keep, maintain and preserve such records relating to the wages and hours worked by each employee and a schedule of the occupation or work classification at which each mechanic, laborer or workman on the project is employed during each work day and week in such manner and form as the labor commissioner establishes to assure the proper payments due to such employees or employee welfare funds under this section or section 31-54. The provisions of sections 31-59 (a), 31-59 (b), 31-66 and 31-69 which are not inconsistent with the provisions of this section or section 31-54 shall apply to this section.
      “(g) The provisions of this section shall not apply where the total cost of all work to be performed by all contractors and subcontractors in connection with new construction of any public works project is less than two hundred thousand dollars or where the total cost of all work to be performed by all contractors and subcontractors in connection with any remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project is less than fifty thousand dollars.
      “(h) As used in this section, section 31-54 and section 31-89a, ‘employee welfare fund’ means any trust fund established by one or more employers and one or more labor organizations to provide from moneys in the fund, whether through the purchase of insurance or annuity contracts or otherwise, benefits under an employee welfare plan; provided such term shall not include any such fund where the trustee, or all of the trustees, are subject to supervision by the commissioner of banking of this state or any other state or the Comptroller of the Currency of the United States or the board of governors of the Federal Reserve System, and ‘benefits under an employee welfare plan’ means one or more benefits or services under any plan established or maintained for employees or their families or dependents, or for both, including, but not limited to, medical, surgical or hospital care benefits; benefits in the event of sickness, accident, disability or death; benefits in the event of unemployment, or retirement benefits.” (Emphasis added.)

       General Statutes § 31-53a provides: “(a) The state comptroller or the contracting authority acting pursuant to section 31-53 is hereby authorized and directed to pay to mechanics, laborers and workmen from any accrued payments withheld under the terms of a contract terminated pursuant to subsection (b) of section 31-53 any wages found to be due such mechanics, laborers and workmen pursuant to said section 31-53. The labor commissioner is further authorized and directed to distribute a list to all departments of the state and political subdivisions thereof giving the names of persons or firms whom he has found to have disregarded their obligations under said section 31-53 to employees and subcontractors or to have been barred from federal government contracts in accordance with the provisions of the Davis-Bacon Act, 49 Stat. 1011 (1931), 40 USC § 276a-2. No contract shall be awarded by the state or any of its political subdivisions to the persons or firms appearing on this list or to any firm, corporation, partnership, or association in which such persons or firms have an interest until three years have elapsed from the date of publication of the list containing the names of such persons or firms.

      “(b) If the accrued payments withheld under the terms of a contract terminated pursuant to subsection (b) of section 31-53 are insufficient to reimburse all the mechanics, laborers and workmen with respect to whom there has been a failure to pay the wages required pursuant to said section 31-53, such mechanics, laborers and workmen shall have the right of action and of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials, and in such proceedings it shall be no defense that such mechanics, laborers and workmen accepted or agreed to accept less than the required wages or that such persons voluntarily made refunds.” (Emphasis added.)

       The plaintiff appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Before May 9, 1987, it was learned that the UConn project would shut down on May 8, 1987, and not May 9, 1987. The employees who agreed to the plan worked an additional Friday to compensate for that missed day. The total shutdown, therefore, equalled seven working days, from May 8, 1987, to May 18, 1987.

       The contours of our remand make it unnecessary for us to reach the merits of the plaintiffs remaining claims that (1) the commissioner improperly failed to adopt the federal prevailing wage rate determinations and the federal regulations pursuant to General Statutes § 4-168 of the Uniform Administrative Procedure Act (UAPA), and (2) the commissioner selectively prosecuted the plaintiff thereby violating its right to equal protection under the fourteenth amendment to the United States constitution.
      As for the first claim, General Statutes § 31-53 (f) requires employers such as the plaintiff to “keep, maintain and preserve” proper records. This duty is expressly created by statute and, therefore, the commissioner did not need to promulgate a regulation for this purpose. Because we conclude that the plaintiffs record keeping violation was the only violation that could have triggered debarment under the circumstances of this case, we need not address whether the commissioner improperly failed to adopt regulations under the statute in accordance with the UAPA.
      As for the plaintiffs second claim, the plaintiff makes two arguments to this court stemming from the trial court’s dismissal of its claim of selective prosecution. It argues that the trial court improperly denied its motion to hear additional evidence on the issue of selective prosecution. Alternatively, the plaintiff argues that even if it were not entitled to introduce additional evidence, the administrative record is sufficient to make a prima facie showing of selective prosecution. Although we agree with the plaintiff that additional evidence is necessary for a proper determination of this issue, we need not review this claim further because, when the present case is remanded to the department on the record keeping issue, the plaintiff may receive the relief sought. If, however, the commissioner determines that the record keeping violation warrants its placement on the debarment list, then, of course, the plaintiff may take an administrative appeal to the trial court. If it does so, then the trial court must afford the plaintiff the opportunity to present additional evidence on the issue of selective prosecution. See General Statutes (Rev. to 1987) § 4-183 (f). (The 1987 statutory provision is applicable, rather than the current provision, because the underlying agency proceeding commenced in 1987. General Statutes § 4-185; Vernon Village, Inc. v. Carothers, 217 Conn. 130, 140, 585 A.2d 76 [1991].)

       General Statutes § 31-76e provides: “No employer, except as otherwise provided herein, shall employ any of his employees for a workweek longer than forty hours, unless such employee receives remuneration for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

       For example, the prevailing wage rate for a journeyperson electrician ($18.20) was added to the “total benefits” rate ($5.35 plus 3.5 percent or .64 = $5.99) for a total of $24.19. The plaintiff calculated that a 60 percent apprentice would receive 60 percent of that figure, or $14.51, as his or her hourly wage. The department of labor investigator determined that this method of calculation was improper and a violation of General Statutes § 31-53 because the statute requires multiplying the prevailing wage rate by the appropriate percentage, and then adding the full “total benefits” rate. In the above example, the commissioner concluded that the prevailing wage rate ($18.20) should have been multiplied by 60 percent ($10.92) and then the Ml fringe benefits rate ($5.99) should have been added for a total of $16.91 instead of $14.51.

       In this appeal, the parties do not distinguish between the meaning of “total benefits” and “fringe benefits.” For the purposes of this section, therefore, we will treat them as synonymous.

       To hold to the contrary, we would have to conclude that the commissioner was authorized to adopt all the federal regulations in 29 C.F.R., part five. This, we cannot do. General Statutes § 31-53 (d) authorizes the commissioner to “adopt and use such appropriate and applicable prevailing wage rate determinations as have been made by the Secretary of Labor of the United States . . . .” (Emphasis added.) The plain language of the statute authorizes the commissioner to adopt only those federal regulations pertaining to the prevailing wage rated determinations.

       Section 31-53a-1 (b) of the Regulations of Connecticut State Agencies provides in relevant part: “ ‘Disregarded their obligations’ means . . . the failure to keep, maintain and preserve such records relating to the wages and hours worked by each employee [on any public works project].”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Moises Avila
    (14252)
    Peters, C. J., Callahan, Glass, Covello and Berdon, Js.
    Argued March 31
    decision released August 12, 1992

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Bradford Ward and Marcia Smith, senior assistant state’s attorneys, for the appellee (state).
   Callahan, J.

This appeal of a criminal conviction raises several claims regarding the propriety of the trial court’s jury instructions. The defendant, Moisés Avila, was tried for the crimes of felony murder and robbery in the first degree in violation of General Statutes §§ 53a-54c, 53a-133 and 53a-134 (a) (2). The state pursued a theory of accessorial liability regarding both offenses pursuant to General Statutes § 53a-8. Although the defendant was acquitted of the felony murder charge, he was convicted of robbery in the first degree and sentenced to a term of imprisonment of eighteen years, execution suspended after thirteen years, with five years probation. Thereafter, he appealed to the Appellate Court, and this court transferred the case to itself pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On October 8, 1988, the defendant drove John Hoffler, Rodney Kyles and Nathaniel Nelson from New Haven to Waterbury. Nelson was armed with a shotgun and Kyles was carrying a .38 caliber handgun in his belt. Jamele Gregg, armed with a .32 pistol, joined the group in Waterbury. The defendant then drove around Waterbury while his passengers looked for a place to rob. Each time a likely location was approached, the defendant would slow the car so that the area could be reconnoitered. The men considered robbing several different places, but decided against all of them for various reasons. Finally, however, the defendant parked the car near a private social club on Walnut Street. His passengers entered the club while he waited in the car with the motor running.

Upon entering the club, the four men displayed their weapons, ordered the patrons to leave their money on the table and to put their heads down between their knees. Nelson attempted to take a wallet from Thompson Lynn, a patron of the club, but Lynn refused to surrender it. Nelson then struck him on the head with his shotgun. As the robbery progressed, Robert “Butch” Clark emerged from a bathroom and attempted to leave the club. Kyles stopped him, however, and a struggle ensued, during which Kyles shot Clark three times in the chest, killing him. The men then left the club, taking the money they had collected. The defendant, who was waiting nearby in the car, picked them up and sped from the scene of the robbery.

On appeal, the defendant claims that the trial court: (1) failed to answer adequately a question asked by the jury regarding an essential element of robbery in the first degree; (2) improperly instructed the jury on the definition of intentional conduct; and (3) improperly instructed the jury on the intent required to commit the offense of robbery in the first degree as an accessory.

I

The defendant first claims that the trial court inadequately answered a question asked by the jury during deliberations. He argues that, when the jury asked whether the defendant would be guilty as an accessory if he were unaware that a robbery had taken place until after it had occurred, the trial court should have responded directly that the defendant would not be guilty unless he had intended that a robbery occur prior to its actual commission. The trial court did not do so. Because the jury’s question directly concerned an essential element of the offense of robbery in the first degree, the defendant claims that he is entitled to a new trial. We are not persuaded.

In its final instructions, the trial court informed the jury of the elements of robbery in the first degree. The court also informed the jury that the state was proceeding on the theory that the defendant was an accessory to the crime, rather than a principal. Regarding accessorial liability, the court instructed the jury that, in order to prove the defendant guilty, the state had to demonstrate that the defendant had possessed the mental state required for the commission of robbery and that he had intentionally aided the principal offenders to commit that crime. The court further explained that the state would have to prove that the defendant had (1) intended that a robbery be committed; (2) intended to assist the principals in its commission; and (3) possessed both of these intentions at the time that he drove the principals to and from the scene of the crime.

On October 5, 1990, the second day of jury deliberations, the jury presented the court with a note asking: “Question: Would the accused be an accomplice if he were aware of any criminal act(s) only if he were made aware immediately after said acts were performed, and participated in the escape of the parties involved in the criminal acts?” (Emphasis in original.)

On October 9, 1990, the court responded to the jury’s question stating, “my answer to you is that I have informed you what the state has to prove beyond a reasonable doubt for you to find that the defendant was an accessory to the crime, the crime of robbery. If I receive—And, therefore, that is my answer to your question. If I receive a request from you to request or redefine my instructions, insofar as they relate to what the state has to prove for you to find that Mr. Avila is an accessory to the crime, [I] will. ... So, if you want me to give you further instructions as to what an accessory is, I shall be very happy to do so. But, I need a note from you to do it.”

On the following day, the jury requested the court to redefine the elements of felony murder and robbery in the first degree. In response, the court stated that it would “get to the heart of the matter which seems to be bothering you and that is whether the defendant is a participant in the robbery.” The trial court then proceeded to reinstruct the jury on the elements of robbery in the first degree and felony murder. Regarding the defendant’s intent, the court again informed the jury that, in order to find the defendant guilty, it would be required to find that the defendant (1) had intended to commit a robbery; (2) had intended to aid the principals in their commission of a robbery; and (3) acting with both of those intentions, had driven the principals “to and from” the scene of the crime. (Emphasis added.)

On October 11, 1990, the jury again asked the court what must be proven in order to find the defendant guilty of robbery in the first degree. In response, the court reinstructed the jury regarding the elements of robbery. Again, the court explained that the defendant would not be guilty of robbery in the first degree unless the jury found that he had had the intent that a robbery be committed and, acting with that intention, had intentionally aided the principals by driving them “to and from” the scene of the crime. (Emphasis added.)

Immediately following the trial court’s reinstruction, the defendant took exception, stating, “I don’t know whether the jury knows that there is a dual intent required.” In response, the trial court called the jury back into the courtroom and, once more, reinstructed it. The court repeated that the state was required to prove that the defendant (1) had intended that a robbery be committed; (2) acting with that intent, had intentionally aided the principals; and (3) acting with both of those intentions, had driven the principals “to and from” the scene of the robbery. (Emphasis added.)

Although the trial court repeatedly instructed the jury regarding the elements of the charged offenses, it never specifically supplied the jury with a direct answer to its question of October 5, 1990. The gravamen of the defendant’s claim on appeal is that, in failing to respond to that question directly, the court failed to clarify the elements of the offense, and left the jury in doubt as to whether the defendant could be guilty of robbery if he had become aware of the robbery only after it had been committed.

Initially, the state claims that the defendant failed to preserve this claim properly at trial. Our review of the trial transcript also indicates that the defendant did not properly preserve this issue. See Practice Book §§ 288 and 4185; State v. Tillman, 220 Conn. 487, 506, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Alternatively, the defendant asserts that he has raised a constitutional issue and should prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In order to prevail on appeal on an unpreserved constitutional claim, the defendant must satisfy all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id.

It is uncontroverted that the defendant has established both that the record is adequate to review his claim and that his claim alleges the violation of a fundamental right. He has thus satisfied the first and second prongs of the Golding test; consequently, we must determine whether a constitutional violation clearly exists and, if so, whether it clearly deprived the defendant of a fair trial. We conclude that the defendant has failed to establish a clear constitutional violation.

A jury instruction is constitutionally adequate if it provides the jurors with a “clear understanding of the elements of the crime charged,” and affords “them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); see State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987); State v. Fleming, 198 Conn. 255, 269-70, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The defendant correctly asserts that he would not be liable as an accessory to robbery in the first degree if he were completely unaware that a robbery had been committed until after the principals had left the scene and entered his car. Although, in those circumstances, the defendant’s conduct might have assisted the principals in escaping, it would be insufficient to establish accessorial liability pursuant to General Statutes § 53a-8 because the conduct would not satisfy the required element of intent.

To act as an accessory pursuant to § 53a-8, one must act “with the mental state required for the commission of the offense . . . .” The mental state required to commit robbery in the first degree is the intent to commit larceny and to do so by the use of force or the threatened use of immediate force for the purpose of: (1) preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct that aids in the commission of the larceny. General Statutes § 53a-133. Moreover, for conduct to be intentional, it must be one’s conscious objective to cause the result or to engage in such conduct. General Statutes § 53a-3 (11).

Thus, if the defendant was unaware of the robbery until after it had occurred, and offered assistance to the principals only at that time, it would have been impossible for him to have assisted with the intent that the crime occur. Although, in those circumstances, a jury might reasonably conclude that the defendant assisted the principals with the knowledge that a robbery had occurred, it could not reasonably conclude that he had assisted the principals with the conscious objective to bring 'about a result that had already been achieved. In State v. Grant, 219 Conn. 596, 594 A.2d 459 (1991), we similarly held that the defendant, who drove the murderer to and from the scene of the killing, could reasonably have been found guilty because there was sufficient evidence to demonstrate that he intended that the victim be killed prior to the commission of the crime.

Although we agree with the defendant’s contention that he could not be convicted of robbery in the first degree as an accessory if the jury found that he had become aware of the crime only after it had been committed, we conclude that the trial court’s instructions sufficiently communicated to the jury the necessity that the defendant have the prior intention to commit robbery. Although the trial court might more properly have answered the jury’s question directly, its omission was not so egregious as to violate due process. The court repeatedly delivered accurate instructions regarding the intent required to commit the crime, and the required timing of that intent. The court repeatedly informed the jury that, in order to convict, it must find that the defendant had intended to commit the crime of robbery and had intended to assist the principals in committing robbery at the time that he drove the principals to the scene of the crime as well as away from it. Accordingly, we conclude that the jury was provided with a “clear understanding of the elements of the crime charged,” and afforded “proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Usry, supra, 316. The defendant may not prevail on this claim because he has failed to establish a clear constitutional violation as required by the third prong of the test set forth in State v. Golding, supra.

II

We next address the defendant’s claim that the trial court improperly instructed the jury on the definition of intentional conduct. Specifically, the defendant asserts that his conviction must be reversed because the trial court failed to distinguish adequately between knowing and purposeful conduct. We disagree.

In its final instructions, the trial court accurately informed the jury that in order to be guilty of robbery in the first degree the defendant must have committed certain intentional acts. The court also explained that “[o]ur law provides that a person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his or her conscious objective is to cause such result or to engage in such conduct. In short, intentional conduct is purposeful conduct, as distinguished from conduct that is accidental or inadvertent.” Later in the instructions, the court stated, “Previously, I defined intentional conduct for you as purposeful conduct, as distinguished from conduct that was accidental or inadvertent.”

The defendant now claims that, by contrasting purposeful conduct with accidental conduct, the trial court might have misled the jury to believe that knowing acts were sufficient to satisfy the definition of intentional conduct. The defendant asserts that knowing acts, like intentional acts, are distinguished from accidental acts. He claims, therefore, that the court’s instruction could have allowed the jury to convict the defendant of robbery even if it concluded that the defendant acted only with knowledge of the robbery, but not with the intent to commit it. The defendant derives support for this claim by reference to one of the jury’s queries to the court. As noted above, the jury asked the court if the “accused [would] be an accomplice if he were aware of any criminal act(s) only if he were made aware immediately after said acts were performed . . . .” (Emphasis added and omitted.) The defendant concedes that this claim was not preserved at trial. He asserts, however, that he is entitled to prevail under State v. Golding, supra, 239-40, and under the plain error doctrine as provided by Practice Book § 4185.

“It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).” (Internal quotations marks omitted.) State v. Anderson, supra, 36. The failure of the trial court accurately to inform the jury of the elements of a charged offense “is error because it deprives the defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Internal quotation marks omitted.) Id., 37. In determining whether the trial court’s instructions were adequate, we view the jury charge as a whole “to determine whether it is reasonably possible that the instruction misled the jury.” State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991).

Viewing the charge as a whole, we conclude that there is no reasonable possibility that the jury was misled. The court, initially, accurately defined intentional conduct pursuant to § 53a-3 (11). The court then explained that intentional conduct was “purposeful” conduct. Had the court instructed only that intentional conduct was “purposeful” conduct, as distinguished from accidental or inadvertent conduct, we might be persuaded that it was reasonably possible that the jury was misled. The court, however, also gave an accurate instruction as to the statutory definition of intent. Within the context of the entire instruction we conclude that the comparison to accidental or inadvertent conduct was not violative of due process. The defendant, consequently, has failed to satisfy the third prong of State v. Golding, supra. The defendant may not prevail under the plain error doctrine because the challenged segment of the trial court’s instructions does not impair the public confidence in or the fairness and integrity of the judicial process. State v. Jeffrey, 220 Conn. 698, 715, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992).

III

Finally, the defendant claims that the jury was improperly instructed on the intent element of robbery in the first degree as an accessory. He asserts that the trial court improperly failed to instruct the jury that, in order to convict the defendant of robbery in the first degree as an accessory, it must find proven beyond a reasonable doubt that he was aware that one of the other participants in the crime was armed with a deadly weapon. We do not agree.

In its jury instructions regarding the intent element of the crime of robbery in the first degree as an accessory, the trial court charged that the state must prove that the defendant had intended to commit larceny. The court then accurately informed the jury of the elements and specific intent required for larceny. The court instructed further that the state would be required to prove, in order to obtain a conviction, that, in committing the larceny, the defendant intended that immediate physical force be used or threatened to be used upon another for the purpose of: (1) preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking; or (2) compelling the owner to deliver up the property or to engage in other conduct which aids in the commission of the larceny. Although the defendant was charged with having committed first degree robbery in that a participant in the robbery had been armed with a deadly weapon; General Statutes § 53a-134 (a) (2); the trial court did not instruct the jury that, in order to convict the defendant of that crime, it was required to find proven beyond a reasonable doubt that the defendant had intended that one of the participants be armed with a deadly weapon. It is on that basis that the defendant claims that he was deprived of due process.

The essence of the defendant’s claim is that, to be liable as an accessory to a crime, one must act “with the mental state required for commission of’ the crime; General Statutes § 53a-8; and that the intent required for commission of the crime of robbery in the first degree includes the intent that a participant in the robbery be armed with a deadly weapon. The defendant concedes that this identical claim was unsuccessfully argued by the defendant in State v. McCalpine, 190 Conn. 822, 831-33, 463 A.2d 545 (1983). In McCalpine we stated that “[i]ntent was not an element of the aggravating circumstance provided by [§ 53a-134 (a) (2)] . . . .” (Emphasis added.) State v. Crosswell, 223 Conn. 243, 258 n.11, 612 A.2d 1174 (1992). Although the defendant recognizes the existence of McCalpine, he asserts that its precedential force has been eroded. We do not agree. As we recently stated, the cases subsequent to McCalpine do not conflict with McCalpine’s holding “that when a defendant is charged with robbery in the first degree on the basis that ‘he or another participant in the crime ... is armed with a deadly weapon’; General Statutes § 53a-134 (a) (2); the defendant need not be proven to have intended to possess a deadly weapon. The concurrence in McCalpine also disagreed with that proposition, but it has not been questioned in any decision by this court.” State v. Crosswell, supra, 261 n.14. Accordingly, we conclude that the trial court’s instructions were accurate.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming'resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
      General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon.”

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and maybe prosecuted and punished as if he were the principal offender.”

       As a result of this incident, Kyles was convicted of felony murder and robbery in the first degree. He appealed to this court and we affirmed his conviction. State v. Kyles, 221 Conn. 643, 607 A.2d 355 (1992). Nelson pleaded nolo contendere to a charge of felony murder. We affirmed his conviction, as well. State v. Nelson, 221 Conn. 635, 605 A.2d 1381 (1992).

       The state contests this assertion and contends that the defendant would be guilty of robbery in the first degree as an accessory even if he became aware of the robbery only after the principals had left the gambling club.

       The court instructed: “[A] person acting with the mental state required for the commission of an offense, who intentionally aids another person to engage in conduct which constitutes an offense, shall be criminally liable for such conduct. . . .’’Additionally, “[t]o be an accessory to a crime, a person must be more than simply present as a companion when the crime was committed. The person must do more than passively acquiesce in the crime or innocently do certain acts that aided in the commission of the crime. Unless the defendant had a criminality of interest and unlawful purpose, in common with the actual perpetrators of the robbery, he cannot be held to have been an accessory.”

       The court instructed the jury that the state must prove beyond a reasonable doubt that the defendant had the intent “that a robbery be committed and that acting with such intent, the defendant intentionally aided [others] in their commission of the robbery by driving them to and from the place where the robbery occurred.” (Emphasis added.)

       Following this last reinstruction, the state took exception, asserting that the court’s repeated instructions regarding the intent required had “unduly” emphasized that element of the offense.

       In its brief, the state asserts that the defendant is not entitled to a review of his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because, the state contends, he has “expressly disavowed” any claim by misleading the trial court into believing that he approved of its instructions. Even assuming, without deciding, that a defendant’s disavowal could preclude him from prevailing under State v. Golding, our review of the record does not reveal any express disavowal of this claim. We conclude that the defendant is not barred from requesting review pursuant to State v. Golding.

       Under such circumstances, the defendant might be prosecuted for the crime of hindering prosecution pursuant to General Statutes §§ 53a-165 and 53a-166.

       General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.”

       As noted in footnote 10, supra, to act intentionally it must be one’s conscious objective to bring about a result or conduct. General Statutes § 53a-3 (11). To act knowingly requires only that one be aware of the circumstances. General Statutes § 53a-3 (12).

       Practice Book § 4185 provides that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention to the trial court.”

       Although the jury used the word “aware” in its note to the trial court, the substance of the note was directed toward an entirely different question of law; see part I, supra; and thus we do not find it particularly indicative of any misperception on the part of the jury regarding the element of intent.


author: Covello, J.

text:
    Hudson House Condominium Association, Inc. v. Michael B. Brooks et al.
    (14345)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued June 3
    decision released August 12, 1992

      Lee A. Samowitz, for the appellant (plaintiff).

      Patrick W. Frazier, with whom, on the brief, was Fernando F. deArango, for the appellee (defendant Connecticut Housing Finance Authority).
   Covello, J.

This is an action to foreclose a statutory lien for delinquent common expense assessments due a condominium association pursuant to General Statutes § 47-258 of the Common Interest Ownership Act. General Statutes §§ 47-200 through 47-281. The issues on appeal are whether the trial court improperly: (1) limited the amount of the common expense assessments entitled to priority to only those assessments that had accrued during the six month period immediately preceding the commencement of the foreclosure action; and (2) excluded attorney’s fees and other litigation costs from the sums authorized a priority pursuant to § 47-258 (b). We conclude that the common expense assessments entitled to a priority were those assessments that accrued during the six months immediately preceding the commencement of the foreclosure action, and that attorney’s fees and costs are entitled to be included in the priority debt. We, therefore, reverse in part the judgment of the trial court.

On January 8, 1991, the plaintiff, Hudson House Condominium Association, Inc. (HHCA), began an action to foreclose a statutory lien for delinquent common expense assessments due on a condominium unit owned by the named defendant, Michael B. Brooks, in the city of Bridgeport. The complaint also named the Connecticut Housing Finance Authority (CHFA) as an additional defendant by reason of its interest as the assignee of a first mortgage on the unit that was subsequent in right to HHCA’s lien.

HHCA calculated its delinquent debt for common expense assessments at $95 per month as follows: (1) $855 for the nine months from April through December, 1990, that being the charge for the period immediately preceding the institution of the foreclosure proceedings; (2) $285 for the three months from January through March, 1991, those being the charges that had accrued during the pendency of the action; and (3) $855 for the nine months from April through December, 1991, that being the amount of common expense assessments that HHCA claimed it was entitled to accelerate. In addition, HHCA claimed interest and the costs of collection, including attorney’s fees.

The trial court agreed with HHCA’s calculation of the amounts due but concluded that only six months of common expense assessments, i.e., $570, together with interest, were entitled to the statutory priority over CHFA’s first mortgage. The trial court refused to include HHCA’s attorney’s fees and costs in the amount entitled to priority. The trial court thereafter rendered a judgment of strict foreclosure finding the debt and assigning law days to the end that CHFA was required to pay HHCA $570 plus interest in order to redeem the premises on its assigned law day. HHCA appealed to the Appellate Court and we thereafter transferred the matter to this court pursuant to Practice Book § 4023.

I

HHCA first claims that the trial court improperly limited the amount of HHCA’s priority debt to the common expense assessments that accrued in the six months immediately preceding the commencement of the foreclosure. HHCA argues that it was also entitled to a priority for the common expense assessments that accrued during the pendency of the action. We do not agree.

Liens for delinquent common expense assessments on individual units within an association are creatures of statute. Section 47-258 (a) provides: “The association has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes delinquent.” Further, § 47-258 (j) provides that “[t]he association’s lien may be foreclosed in like manner as a mortgage on real property.”

In addition to creating the lien and authorizing its foreclosure, § 47-258, contrary to the tenet that the priority of liens is governed by the common law rule that first in time is first in right; State v. Bucchieri, 176 Conn. 339, 346, 407 A.2d 990 (1978); carves out an exception and grants a priority to the lien for common expense assessments. The priority, however, is temporally limited by § 47-258 (b) to the amount “of the common expense assessments . . . which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce ... the association’s lien . . . .” (Emphasis added.)

Despite this unequivocal language, HHCA argues that because it could, in theory, initiate a foreclosure on delinquent common expense assessments every six months, it could thereby obtain a priority status for all delinquent assessments. HHCA contends that, instead of engaging in this cumbersome and wasteful procedure, § 47-258 (b) should be interpreted to give priority status to all common expense assessments accruing during the pendency of a given action.

In support of its claim, HHCA relies upon the portion of § 47-258 (b) that states: “The lien is also prior to all security interests described in subdivision (2) of this subsection to the extent of the common expense assessments . . . which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce either [HHCA’s] lien or a security interest described in subdivision (2) of this subsection.” (Emphasis added.) HHCA claims that because the statute uses the word “assessments” and not “assessment,” the legislature intended to give priority to more than six months of common expense assessments. We disagree.

General Statutes § 1-1 (f) provides that “[w]ords importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.” (Emphasis added.) Thus, the fact that the language of this statute uses the plural “assessments,” as opposed to “assessment,” need not have special legal significance. We conclude that the use of the plural in this particular context indicates nothing more than a recognition that common expenses normally accrue and are charged on a monthly basis, and that a given six month period will, therefore, contain six assessments.

HHCA further argues that CHFA will be unjustly enriched if we interpret § 47-258 to limit the priority lien to six months of common expense assessments. In construing a statute, “we follow the ‘golden rule of statutory interpretation’ . . . that the legislature is presumed to have intended a reasonable, just and constitutional result.” (Emphasis added.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). When the statute is clear, however, the appropriate rule is that one cannot be unjustly enriched by a statutory enactment. 66 Am. Jur. 2d 946, Restitution and Implied Contracts § 3. While the plaintiff may disagree with the equities of limiting the § 47-258 (b) priority to six months of common expense assessments, this is a matter not for the judiciary, but rather for the legislature that enacted the statute. We conclude that the trial court correctly determined that HHCA’s priority debt was limited to the common expense assessments that accrued in the six months immediately preceding the commencement of the foreclosure.

II

HHCA next claims that § 47-258 authorizes, as part of HHCA’s priority lien, the litigation expenses incident to its foreclosure. Specifically, HHCA seeks the inclusion of the attorney’s fees, the appraiser’s fees, the title examination fees and other costs of collection. It claims that the trial court improperly failed to include these fees in the priority debt. We agree.

Section 47-258 (g) provides that a “judgment or decree in any action brought under this section shall include costs and reasonable attorney’s fees for the prevailing party.” It is undisputed that HHCA, as the plaintiff and the party in whose favor the trial court rendered judgment, is the prevailing party in this, its own foreclosure action. CHFA does not dispute that § 47-258 (g) authorizes the inclusion of these costs and fees as part of HHCA’s judgment, but it maintains that because § 47-258 (b) does not specifically include the words “costs and attorney’s fees” as part of the language creating its priority lien, those expenses are properly includable only as part of the nonpriority lien that is subordinate to CHFA’s interest.

In construing a statute, we assume that “the legislature intended to accomplish a reasonable and rational result.” Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). Section 47-258 (a) creates a statutory lien for delinquent common expense assessments. Section 47-258 (j) authorizes the foreclosure of the lien thus created. Section 47-258 (b) provides for a limited priority over other secured interests for a portion of the assessment accruing during the six month period preceding the institution of the action. Section 47-258 (g) specifically authorizes the inclusion of the costs of collection as part of the lien. Since the amount of monthly assessments are, in most instances, small, and since the statute limits the priority status to only a six month period, and since in most instances, it is going to be only the priority debt that in fact is collectible, it seems highly unlikely that the legislature would have authorized such foreclosure proceedings without including the costs of collection in the sum entitled to a priority. To conclude that the legislature intended otherwise would have that body fashioning a bow without a string or arrows. We conclude that § 47-258 authorizes the inclusion of attorney’s fees and costs in the sums entitled to a priority.

The judgment is reversed in part and the case is remanded with direction to include the attorney’s fees and the other costs of collection in the priority debt.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 47-258 provides in part: “(a) The association has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes delinquent. Unless the declaration otherwise provides, fees, charges, late charges, fines and interest charged pursuant to subdivisions (10), (11) and (12) of subsection (a) of section 47-244 are enforceable as assessments under this section. If an assessment is payable in instalments, the full amount of the assessment is a lien from the time the first instalment thereof becomes due.
      “(b) A lien under this section is prior to all other liens and encumbrances on a unit except (1) liens and encumbrances recorded before the recordation of the declaration and, in a cooperative, liens and encumbrances which the association creates, assumes or takes subject to, (2) a first or second security interest on the unit recorded before the date on which the assessment sought to be enforced became delinquent, or, in a cooperative, a first or second security interest encumbering only the unit owner’s interest and perfected before the date on which the assessment sought to be enforced became delinquent, and (3) liens for real property taxes and other governmental assessments or charges against the unit or cooperative. The lien is also prior to all security interests described in subdivision (2) of this subsection to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to subsection (a) of section 47-257 which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce either the association’s lien or a security interest described in subdivision (2) of this subsection. This subsection does not affect the priority of mechanics’ or materialmen’s liens, or the priority of liens for other assessments made by the association.”

       The plaintiff, Hudson House Condominium Association, Inc. (HHCA), has also raised two additional issues concerning its nonpriority debt that is subsequent in interest to the mortgage of the defendant Connecticut Housing Finance Authority (CHFA). These issues do not present actual controversies, however, because the value of the condominium is far lower than the amount of CHFA’s mortgage and there is, therefore, no equity to secure the lower priority lien. CHFA claimed a balance due on its mortgage in excess of $82,000, but the trial court found the value of the property to be only $47,000. “ ‘In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law; Reply of the Judges, 33 Conn. 586 [1867]; and where the question presented is purely academic, we must refuse to entertain the appeal. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 [1961].’ Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979).” Shays v. Local Grievance Committee, 197 Conn. 566, 571-72, 499 A.2d 1158 (1985).

       The trial court awarded attorney’s fees of $1500, appraisal fees of $450, and a title examination fee of $150, together with taxable costs.

       No. 91-359 of the Public Acts of 1991 (Public Act 91-359), which repealed and replaced General Statutes § 47-258 (b) and which took effect on July 5, 1991, after the judgment of strict foreclosure in this case, clarified that attorney’s fees and costs are included in the priority debt. Public Act 91-359 provides that the “lien is also prior to all security interests described in subdivision (2) of this subsection to the extent of (A) an amount equal to the common expense assessments . . . which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce either the association’s lien or a security interest described in subdivision (2) of this subsection and (B) the association’s eosts and attorney’s fees in enforcing its lien.” (Emphasis added.)