author: Borden, J. Shea, J.,

text:
    Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., et al.
    (14221)
    Shea, Glass, Covello, Borden and F. X. Hennessy, Js.

      Argued March 22
    decision released July 23, 1991

      James W. Sherman, for the appellant (named defendant).

      Maite Barainca, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, then attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (plaintiff).
   Borden, J.

The issues raised in this appeal from a judgment of contempt and a modification of an injunction are whether: (1) the trial court’s finding that the named defendant, Youth Challenge of Greater Hartford, Inc., was operating a drug and alcohol treatment facility without a license was clearly erroneous; and (2) the trial court’s remedial enforcement order improperly expanded the trial court’s earlier injunction. We affirm.

In August, 1986, the plaintiff, the commissioner of health services, filed a petition for enforcement, seeking to enjoin the defendants from operating two unlicensed substance abuse treatment facilities. The trial court, M. Hennessey, J., granted the plaintiff’s request for a permanent, injunction, and this court affirmed the judgment on appeal. Commissioner v. Youth Challenge of Greater Hartford, Inc., 206 Conn. 316, 318-19, 537 A.2d 480 (1988) (Youth Challenge I).

Thereafter, in November, 1988, the plaintiff moved that the defendants be held in contempt, alleging that they were violating the permanent injunction by continuing to operate two unlicensed substance abuse treatment facilities. The trial court, Satter, J., held the named defendant in contempt and modified the 1986 injunction. The defendant appealed to the Appellate Court, and we transferred that appeal to this court pursuant to Practice Book § 4023.

The facts leading to this appeal are as follows. The defendant operates a licensed substance abuse treatment facility at 15-17 May Street, Hartford. In August, 1986, the plaintiff filed a petition for enforcement seeking to enjoin the defendants from operating two unlicensed substance abuse treatment facilities, the Youth Challenge Ranch (Ranch) in Moosup, and the Youth Challenge Girls’ Home (Girls’ Home) in Hartford. In December, 1986, Judge Hennessey found that the defendants managed and operated the Ranch and the Girls’ Home, and that the Ranch and the Girls’ Home were drug and alcohol treatment facilities operating without a license. See Youth Challenge I, supra, 319.

In particular, Judge Hennessey found that the tax returns of the defendants listed the Girls’ Home as a “drug rehabilitation program,” and the Ranch as a “resident drug program.” The Girls’ Home was described in its brochure as having the purpose of “instilling in the drug dependent person, the incentive to forsake his drug habit for the pursuit of a new life.” The court further found that the Girls’ Home was engaged in detoxification of its residents, and also provided a supervised and supportive living situation for abusing or drug dependent persons, treatment and rehabilitative programs, assessment of the residents’ physical and psychological condition, referral for medical care, psychiatric evaluation and continuing treatment, and storage of medication. Similarly, Judge Hennessey found that the services provided by the Ranch, the second phase of a residential rehabilitation program for males that follows the induction phase at the defendants’ licensed facility, included planned treatment and rehabilitation programs, training and vocational rehabilitation, referral for continuing treatment and/or medical care, dietary services, central storage of medication and administration of medication, assessment of the individual’s physical and psychological condition to determine appropriateness for admission, and ongoing assessments to establish a program for maintaining alcohol and/or drug free status.

Based on these findings, Judge Hennessey concluded that both facilities were drug or alcohol treatment facilities that were required to be licensed under the provisions of General Statutes (Rev. to 1985) § 19a-491 (a). The court rendered judgment granting a permanent injunction. The terms of the injunction provided, inter alia, that “[t]he defendants are enjoined from operating any unlicensed facilities providing treatment to drug and/or alcohol dependent persons unless, and until, they obtain a license from the Department of Health Services. . . . ”

In November, 1988, the plaintiff instituted these proceedings, seeking to have the defendants held in contempt for violation of the injunction, alleging that the defendants were continuing to operate the two unlicensed substance abuse treatment facilities. After four days of hearings, the trial court, Satter, J., found that since the injunction was entered in 1986, the operations at both the Ranch and the Girls’ Home had remained unchanged. The court also found that virtually all of the residents of the Girls’ Home had histories of drug or alcohol abuse problems, a fact it considered relevant under the definition of “substance-dependent persons” as “individuals who are physically or psychologically reliant upon alcohol or a drug (1) as a result of substance abuse . . . .” Regs., Conn. State Agencies § 19a-495-570 (a) (37). The court also found from an examination of the medical records of numerous residents of the Ranch and the Girls’ Home that the residents were dependent psychologically on drugs, despite the fact that the residents may not have been actively using drugs or experiencing withdrawal symptoms at the time of admission. This finding comports with the definition of a substance dependent person pursuant to the department of health service regulation § 19a-495-570 (a) (37).

Based upon these findings, the court further found that the defendant had continued to operate the Girls’ Home and the Ranch as unlicensed drug or alcohol treatment facilities in violation of paragraph one of the 1986 injunction, and, therefore, held the defendant in contempt. Pursuant to its finding of contempt, the trial court modified the injunction as follows: “(1) The defendant shall be fined $200.00 per day to begin 30 days after the Court’s issuance of this contempt order unless and until the defendant has either (a) discharged all residents from the Girls’ Home and Ranch by transferring them to a licensed substance abuse treatment facility or otherwise discharging them after giving them information about licensed substance abuse treatment facilities in their community, or (b) applied for a license from the Department of Health Services for the Ranch and the Girls’ Home. If the applicant applies for a license in a timely fashion but has not received a license for a facility within 4 months of the application, the defendant must comply with the discharge provisions of this order within 30 days of the passage of the 4-month period. The.defendant may request a written extension of time from the Department if it is in the process of applying for a license and it appears that a decision on the application will not be made within the 4 months. If the Department grants the extension of time, the applicant must meet the new deadline or implement the discharge provisions of this order within 30 days.

“(2) If the defendant chooses or becomes subject to the discharge of residents provision in (1) above, then the defendant must comply with the following additional provisions to ensure that the facilities do not revert back to substance abuse facilities: (a) The defendant shall not allow anyone to reside at the Ranch or Girls’ Home who has had a history of substance abuse within one year prior to admission. This means that anyone applying to reside at the Ranch or Girls’ Home who was abusing drugs or alcohol or who was in a substance abuse treatment facility within the preceding twelve-month period cannot be admitted. The defendant must verify this by questioning the individuals, the referring person, if known[,] and by checking the person’s medical records. The defendant shall maintain documentation of this verification for each person it admits to the Ranch or Girls’ Home. This documentation shall be made available to Department inspectors upon request.

“(b) The defendant shall report to the Department on a bi-monthly basis for the first two years following this order and annually thereafter and provide the Department with the following:

“(A) the names and dates of birth of any new residents; their date of admission and length of stay;
“(B) whether the resident is receiving any money and/or reimbursement for costs or is being provided with any services from any state, city or federal agency and the reason such services/money/reimbursement is being provided.
“(3) The Department shall have access to the Ranch and the Girls’ Home for a period of two years from this order to verify compliance with the injunction and with this order. Access is to consist of unannounced visits by Department staff. Department staff are to be allowed to tour the facility, review any resident records, and talk to staff and residents.”

I

The defendant first claims that “[tjhere being no ‘drug and/or alcohol dependent persons’ in the Girls’ Home and the Ranch, the court erred in finding the defendant in contempt of the December 4,1986 Injunction . . . . ” The essence of the defendant’s first claim is a challenge to the factual findings of the trial court. We reject this challenge.

We first note that this appeal is from a finding of civil contempt, and, therefore, “our review is technically limited to ‘questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.’ . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order.” (Citations omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982). “Although Papa recognizes that plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” Dunham v. Dunham, 217 Conn. 24, 29-30, 584 A.2d 445 (1991).

Although various claims are strewn throughout its brief, the defendant fails adequately to raise a challenge to the contempt order based upon the vagueness or indefiniteness of the injunction, upon an assertion that its constitutional rights were not adequately safeguarded or upon an assertion that it was unable to obey the court’s order. Furthermore, the defendant does not claim that the findings upon which the contempt order was based are “ambiguous and irreconcilable . . . .” Papa v. New Haven Federation of Teachers, supra, 732. Rather, the gravamen of the defendant’s claim is that the trial court should have found facts favorable to it contrary to those the court did find.

“The resolution of conflicting factual claims falls within the province of the trial court. . . . 'The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . ’ We cannot retry the facts or pass on the credibility of the witnesses.” (Citations omitted.) Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

The defendant’s claim is premised upon its assertion that none of the inhabitants of the Girls’ Home or the Ranch is dependent on drugs or alcohol. A review of the evidence presented to the trial court, however, demonstrates that sufficient evidence was presented to support its conclusion that the Girls’ Home and the Ranch both were still operating substance abuse treatment facilities in violation of the injunction.

In support of the trial court’s finding that the defendant was continuing to treat drug or alcohol dependent persons, the acting medical director of the Girls’ Home and the Ranch, Anthony Ardolini, testified, in regard to the Girls’ Home, that “the residents of the Home are psychologically dependent on drugs, even though at the time of admission they may not have been using drugs or having withdrawal symptoms.” He also stated that the Girls’ Home residents “ ‘are allotted an alternative, comprehensive lifestyle that allows them to remain drug free. That fits my definition of a drug rehabilitation program.’ ”

In regard to the Ranch, Ardolini testified that “these [residents] are very addictive individuals. There is something about their psychological make-up, I believe, that makes them that way. This [Ranch] happens to be a very religious organization . . . but they get very much involved—no[t] in a negative way, but addicted— to religious activities of the group, and that offers them a very plausible, certainly a safer, environment where they could go ahead and become more productive members of society.”

In support of the plaintiffs claim that the defendant had continued to operate an unlicensed drug or alcohol treatment facility in violation of the injunction, Louie Collazo, one of the directors of the defendant, testified that “everything is the same, classes, the major operations or the way of homes working on a daily basis have been the same.” Collazo testified that “the only change that may be a change [since the 1986 injunction] was when I went there we changed the name.”

The defendant does not dispute this evidence, but disagrees with the findings and conclusions reached by the trial court. It is not the function of this court, however, to pass upon credibility; Nor’easter Group, Inc. v. Colossale Concrete, Inc., supra; and, upon reviewing the entire record, we can find no reason to disturb the trial court’s finding that the defendant has continued to operate two substance abuse treatment facilities in violation of the 1986 injunction. “The trial court’s factual findings and ultimate conclusion are adequately supported by the record and are not clearly erroneous. Practice Book § 4061; see also Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 221-22, 435 A.2d 24 (1980)]; Howie’s Painting Service, Inc. v. Ferreria, 12 Conn. App. 583, 584, 532 A.2d 1318 (1987).” Id., 473.

II

The defendant next claims that the trial court improperly modified the 1986 injunction at the contempt hearing. The defendant does not challenge the specific modifications entered by the court, but claims that the court should not have modified the 1986 injunction because there were “no pleadings, no notice, no trial and no opportunity for representation by counsel . . . .” Although we generally will not review a claim based upon a bare assertion of a due process violation; Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); we address the claim but conclude that it is without merit.

At the outset, the defendant’s claim that it received no notice, no pleadings, no trial, and no opportunity for presentation of evidence by counsel is easily refuted by an examination of the plaintiff’s motion for contempt. In its prayer for relief, the plaintiff requested, inter alia: (a) that the defendant be compelled to allow unannounced visits of the facilities and to allow inspectors to review resident records; (b) that the defendant be forced to show that it has ceased holding itself out to the public as a substance abuse treatment facility; (c) that the defendant be compelled to show that the facilities are no longer operating as substance abuse treatment facilities; and (d) any other equitable relief available. The plain language of this prayer for relief should have alerted the defendant that the plaintiff was requesting relief greater than that provided for in the 1986 injunction. Thus, the defendant should have been aware of the fact that certain modifications were being sought, even before trial began. The defendant had ample notice of the request and ample opportunity both prior to and during trial to present the court with pleadings and evidence demonstrating that such a modification was not necessary.

Furthermore, after four days of trial, the plaintiff filed a posttrial brief to the court. In the brief, the plaintiff submitted a proposed modification of the 1986 injunction. Although the defendant submitted a reply brief, it neither addressed the modification nor requested a hearing thereon. The trial court thereafter adopted the modification of the 1986 injunction proposed by the plaintiff.

The defendant does not dispute that it had the opportunity to address the proposed modification in its reply brief, but failed to do so. The defendant also does not dispute that it never requested a hearing on the proposed modification prior to the determination by the trial court. Nevertheless, the defendant argues, without authority, that its due process rights were violated by the court’s adoption of the modification. We conclude, however, that the defendant’s failure to respond to the modification requested by the plaintiff and its failure to request a hearing thereon were due to its own laxity and, therefore, do not result in a violation of its due process rights.

Furthermore, it is undisputed that “in dealing with judgments that decree injunctive relief . . . ‘courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so.’ Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969); Collens v. New Canaan Water Co., 155 Conn. 477, 494, 234 A.2d 825 (1967).” Department of Health Services v. Commission On Human Rights & Opportunities, 198 Conn. 479, 487, 503 A.2d 1151 (1986). “Courts have in general the ‘power to fashion a remedy appropriate to the vindication of a prior . . . judgment.’ ” Hall v. Dichello Distributors, Inc., 14 Conn. App. 184, 192, 540 A.2d 704 (1988), quoting Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 563, 468 A.2d 1230 (1983). “Having found noncompliance, the court, in the exercise of its equitable powers, necessarily had the authority to fashion whatever orders were required to protect the integrity of [its original] judgment.” Connecticut Pharmaceutical Assn., Inc. v. Milano, supra, 563-64; see also Gentile v. Ives, 163 Conn. 281, 282, 303 A.2d 720 (1972) (Superior Court has power to enforce its own judgments).

The dissent, based on the plain error doctrine, would remand the case to the trial court on order to modify the injunction to cure what the dissent perceives as its overbreadth. This approach, however, reaches to find plain error where none plainly exists. Plain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial. State v. Ortiz, 217 Conn. 648, 659-60, 588 A.2d 127 (1991). This is not such a case.

First, as the dissent acknowledges, the defendant has never—in the trial court or in this court—raised the claim of modification relied on by the dissent. The defendant’s claim was confined to a wholesale attack on the authority of the trial court to make any modification.

Second, contrary to the dissent’s assertion, there is no implied finding by the trial court that there are any residents of the Girls’ Home or Ranch who have not had drug or alcohol abuse problems. Of course, it was the obligation of the defendant, as the appellant, to cure any ambiguity in the court’s decision; O’Hara v. State, 218 Conn. 628, 635, 590 A.2d 948 (1991); a remedy the defendant declined to seek.

It is true that the trial court found that “[ajlmost all the residents of the Girls’ Home have histories of drug and/or alcohol abuse problems,” and that “almost all the residents of the Ranch have substance abuse problems.” We read these references, however, as indicating only that the trial court may not have read the medical histories of all the residents. Instead, the court specifically relied on the testimony of Ardolini “that the residents of the Home are psychologically dependent on drugs, even though at the time of admission they may not have been using drugs or having withdrawal symptoms.” (Emphasis added.) The court also specifically found that “[t]he Ranch is the second phase of a program which begins at the Youth Challenge Men’s Home in Hartford which is a licensed substance abuse facility. The staff of the Men’s Home and Ranch mutually decide when a resident is ready to move to the Ranch to continue his rehabilitation.” The court further found that “[t]he heavy emphasis on religious study at the Ranch is designed to help residents control drug problems.” Thus, it is clear from this record, and from the record of the earlier case, that the defendant is not operating general bible study schools that happen to have some students with substance abuse backgrounds. Rather, the defendant employs bible study as a form of unlicensed substance abuse treatment.

In view of these findings, and in view of the total lack in the defendant’s brief of any factual or legal elaboration of a denial of its right to practice religion, it is difficult to comprehend the dissent’s insistence that the modified injunction constitutes “a clear violation” of the defendant’s right to do so. Furthermore, there is no basis here that we can see for the defendant vicariously to assert its residents’ religious rights, as the dissent would permit.

In this instance, the trial court, after having found that the defendant had violated the 1986 injunction prohibiting it from operating two unlicensed substance abuse treatment facilities, had the equitable power to modify the injunction in order to “vindicate” its prior judgment. Because the defendant does not challenge any of the specific provisions of the modified injunction, but rather the power of the court to so modify, we end our inquiry here.

The judgment is affirmed.

In this opinion Glass, Covello and F. X. HenNESSY, Js., concurred.

Shea, J.,

dissenting in part. I agree with the majority opinion in all respects except its attempted justification of the overbreadth of the modified injunction in requiring that all residents of the facilities operated by the defendant be discharged despite indications in the finding that not all of them have a history of drug or alcohol abuse. There is a significant discrepancy between the finding of the trial court that “almost all the residents” of the Girls’ Home and of the Ranch have substance abuse problems and the terms of the modified injunction, which require the defendant to discharge “all residents from the Girls’ Home and Ranch” unless it applies to the department of health to obtain licenses for these facilities as drug and alcohol abuse treatment centers. (Emphasis added.) If there are any residents of the Girls’ Home or the Ranch who have not had drug or alcohol abuse problems, as the finding implies, the modified injunction should not have required that these persons be compelled to leave the defendant’s facilities. No license is required for the defendant to operate its religion study program for the benefit of those residents who are not “suffering from . . . alcoholism or other drug addiction.” General Statutes (Rev. to 1985) § 19a-490. “Where the subordinate facts found by the trial court do not . . . support the injunction issued, the injunction must be vacated”; Karls v. Alexandra Realty Corporation, 179 Conn. 390, 403, 426 A.2d 784 (1980); or modified to conform to the facts found.

The defendant has made only a general claim that the modified injunction is overbroad and has not specifically pointed to the finding as a limitation on its proper scope. This court, nevertheless, should regard this obvious flaw as plain error; Practice Book § 4185; see Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 196, 520 A.2d 208 (1987); and direct a further modification of the injunction to exclude any residents who have no history of substance abuse. See DeCecco v. Beach, 174 Conn. 29, 35-36, 381 A.2d 543 (1977). With respect to such persons, the operation of the injunction in its present form would constitute a clear violation of their constitutional right as well as that of the defendant to engage in the practice of religion.

Accordingly, I dissent from the affirmation of the judgment without further modification of the terms of the injunction.

       The named defendant, Youth Challenge of Greater Hartford, Inc., does business as Youth Challenge Ranch and as Youth Challenge Girls’ Home. The other defendants are Louie Collazo, the director of Youth Challenge Ranch, and Christian F. Poulsen, Jr., the director of Youth Challenge Girls’ Home. We refer herein to the named defendant as “the defendant,” and to all three defendants as “the defendants.”

       In its reply brief, the defendant raises a panoply of claims, among them: (1) numerous procedural due process violations; (2) a substantive due process violation; (3) deprivation of the defendants’ constitutional rights of freedom of association and of privacy under the first and fourteenth amendments to the United States constitution and article first, § 14, of the Connecticut constitution; and (4) unconstitutional overbreadth in violation of the first amendment to the United States constitution and article first, § 14, of the Connecticut constitution.
      We decline to consider these claims because they either were never raised or were so inadequately briefed in the defendant’s original brief that we consider them abandoned. “Claims of error by an appellant must be raised in his original brief; Practice Book § 3060F; so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 403 n.6, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987).

       The plaintiffs request for a contempt order also was based on the ground that the defendants refused to allow the plaintiff’s inspectors to view the unlicensed facilities operated by the defendants in violation of paragraph five of the 1986 injunction. On December 20, 1988, the trial court, Satter, J., bifurcated the contempt hearing on the alleged violations. Judge Satter held the defendants in contempt after finding that they had refused the inspectors access to the facilities, and fined the defendants $1000. The defendants appealed to the Appellate Court, which affirmed the judgment in Commissioner v. Youth Challenge of Greater Hartford, Inc., 20 Conn. App. 806, 567 A.2d 849 (1989) (Youth Challenge II).

       The plaintiff withdrew the motion for contempt against the individual defendants.

       General Statutes (Rev. to 1985) § 19a-491 provides in relevant part: “(Formerly Sec. 19-577). license and certificate required, application. (a) No person acting individually or jointly with any other person shall establish, conduct, operate or maintain an institution in this state without a license as required by sections 19a-490 to 19a-503, inclusive. Application for such license shall be made to the department of health services upon forms provided by it and shall contain such information as said department requires, which may include affirmative evidence of ability to comply with reasonable standards and regulations prescribed under the provisions of said sections.”
      An “institution” pursuant to General Statutes (Rev. to 1985) § 19a-490 (a) includes an “alcohol or drug treatment facility.” General Statutes (Rev. to 1985) § 19a-490 (h) defines an “alcohol or drug treatment facility” as “any facility for the care or treatment of persons suffering from alcoholism or other drug addiction.” The term “facilities” means the physical site where the program functions take place. Regs., Conn. State Agencies § 17-227-61 (R) (1986).

       In its entirety, the injunction provided: (1) “The defendants are enjoined from operating any unlicensed facilities providing treatment to drug and/or alcohol dependent persons unless, and until, they obtain a license from the Department of Health Services”; (2) “The defendants are to immediately terminate detoxification of persons from either drugs or alcohol at any facility not licensed to provide detoxification”; (3) “The defendants are to immediately terminate dispensing and/or administering medications to residents at any unlicensed facility”; (4) “The defendants are to cease holding themselves out to the public as providing treatment for drug and/or alcohol abusive persons at any unlicensed facility”; and (5) “The State Department of Health Services is to have access to the Youth Challenge Ranch and the Youth Challenge Girls’ Home for a period of one year to verify compliance with the injunction. Access is to consist of unannounced visits by Department staff not to exceed one a month. Department staff are to be allowed to tour the facility and review any resident records.” The issue in this appeal focuses solely on paragraph one of the injunction.

       The court noted that the “St. Francis Hospital medical record of one Girls’ Home resident, dated February 5,1987, reads: ‘24 year old [girl] has been to several alcohol rehabilitation programs in past, returns to Youth Challenge in Hartford .... Last P/E [physical exam] 3/86 and since has been in and out of rehab programs intermittently abusing alcohol and using M.J. [marihuana] and cocaine.’ ” (Brackets in original.) The trial court also found that “[tjhe Hartford Department of Social Services’ report dated January 13,1989, on another Girls’ Home resident reads, ‘Client in Youth Challenge for drug problems. Client arrived from N.J. 11/18/88 to enter Youth Challenge.’ ” The trial court also found that “[likewise, almost all the residents of the Ranch have substance abuse problems.”

       Indeed, that equitable power appears appropriate in light of the specific factual finding, based on the testimony of one of the defendant’s directors, that there were no changes in the operation of the Ranch and the Girls’ Home from the time that the initial injunction was issued.


source: Caselaw Access Project

author: F. X. Hennessy, J.

license: Public Domain

text:
    Eddie Vanzant v. Mark Hall et al.
    (14120)
    (14124)
    Shea, Callahan, Covello, Borden and F. X. Hennessy, Js.
    Argued March 28
    decision released July 23, 1991

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, then attorney general, and Charles A. Overend, assistant attorney general, for the appellant in the first appeal (defendant Second Injury and Compensation Assurance Fund).

      Brian E. Prindle, for the appellant in the second appeal (named defendant).

      R. Bartley Halloran, for the appellee in both appeals (plaintiff).
   F. X. Hennessy, J.

In these appeals from a decision of the compensation review division the determinative issue is whether the plaintiff was an employee of the defendant within the meaning of the Workers’ Compensation Act (act).

The plaintiff, Eddie Vanzant, who was injured while assisting in the construction of a barn for the named defendant, Mark Hall, filed a claim for workers’ compensation benefits from Hall. The compensation commissioner conducted a hearing and ordered Hall to pay the plaintiff workers’ compensation benefits. Because Hall did not carry workers’ compensation insurance, the commissioner ordered the state treasurer, as custodian of the defendant Second Injury and Compensation Assurance Fund (Fund), to pay the award. Hall and the Fund appealed the commissioner’s decision to the compensation review division (review division), which affirmed the commissioner’s finding and award and dismissed the appeal. From that decision, Hall and the Fund appealed to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023. We reverse the decision of the review division.

The commissioner found the following facts. Hall, who resides in Andover, and conducts a business known as New England Remodeling, telephoned the plaintiff on November 14,1987, and offered him work completing the construction of a barn at Hall’s residence in Andover. The plaintiff accepted Hall’s offer and expected to work five or six hours on Sunday, November 15,1987, and three to four hours a day during the week, at a rate of pay of $18 per hour. On November 15, 1987, while working on the barn under Hall’s supervision and control, the plaintiff injured himself when he fell or jumped from a rafter.

The commissioner further found that the plaintiff was an employee of Hall, that the injuries sustained by the plaintiff on November 15 arose out of and in the course of that employment, and that his average weekly wage for his work with Hall was $360 (twenty hours at $18 per hour). On the basis of these findings, the commissioner concluded that the plaintiff was entitled to payment by Hall of all benefits to which he is or may become entitled under the act.

On appeal, Hall claims that the review division improperly affirmed the commissioner’s finding that the plaintiff was Hall’s employee for two reasons: (1) the plaintiff was a casual laborer excluded from compensation by General Statutes § 31-275 (5) (B); and (2) the plaintiff failed to qualify for compensation because General Statutes § 31-275 (5) (D) excludes from the definition of employee “any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week.”

The Fund raises two claims in its appeal. Its first claim, like Hall’s second claim, is that § 31-275 (5) (D) excludes the plaintiff from the general definition of employee and thus from coverage under the act. The Fund’s second claim is that the review division improperly failed to sustain the Fund’s appeal of the commissioner’s denial of its motion to correct.

As a preliminary matter, we note that when a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. Peoples Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). “ ‘The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)].” Id. “Our scope of review of the actions of the review division is similarly limited.” DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 (1990).

“The entire statutory scheme of the Workers’ Compensation Act is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act; a claimant . . . who is not an employee has no right under this statute to claim for and be awarded benefits.” Castro v. Viera, supra, 433. Section 31-275 (5) defines “employee” as “any person who has entered into or works under any contract of service or apprenticeship with an employer . . . .” Section 31-275 (5) expressly excludes from this definition in subdivision (B) “one whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer’s trade or business,” and in subdivision (D) “any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week.”

With this background, we first address Hall’s claim that the plaintiff is a casual laborer who was excluded from coverage under the act pursuant to § 31-275 (5) (B). An employee who is barred from compensation under our act pursuant to that section is one whose employment is both casual in nature and not for the purposes of the employer’s trade or business. Thompson v. Twiss, 90 Conn. 444, 450, 97 A. 328 (1916). The term “casual employment” as used in the act means occasional or incidental employment, employment without regularity. Id., 451.

Hall argues that although the commissioner found that the plaintiff had accepted Hall’s offer of work completing the construction of a barn on Hall’s property and expected to work five or six hours on November 15 and three or four hours a day during the week, the commissioner made no finding of any further ongoing employment relationship or that the work on the barn was a part of Hall's trade or business. Thus, Hall urges this court to return this matter to the commissioner for further proceedings to allow the commissioner to make findings as to whether the plaintiffs work was both casual and for the purposes of Hall’s business.

The commissioner’s finding and award should contain a recital of facts found, the conclusions reached by the commissioner upon these subordinate facts, the claims of law made by the appellant, the rulings made thereon, and the decision made. Henderson v. Mazzotta, 113 Conn. 747, 752, 157 A. 67 (1931); see also Regs., Conn. State Agencies § 31-301-3. A motion to correct the commissioner’s finding, as provided in § 31-301-4 of the Regulations of Connecticut State Agencies, is the proper vehicle to be used when an appellant claims that the commissioner’s finding is incorrect or incomplete. We have long held that this motion is not merely a technical requirement and that the failure to file this motion justifies dismissal of an appeal, for if an “appellant claims that the finding is incorrect, the matter should first be called to the attention of the commissioner that he may have an opportunity to supply omitted facts or restate findings in view of the claims made in the motion.” Guerras. W. J. Megin, Inc., 130 Conn. 423, 425, 34 A.2d 873 (1943), citing Atwood v. Connecticut Light & Power Co., 95 Conn. 669, 112 A. 269 (1921).

Hall claims to have filed a motion with the commissioner to correct his finding and award and moved, pursuant to Practice Book § 4051, for rectification of the record on appeal to include that motion, a copy of which was attached to the motion for rectification. The review division, however, in denying that motion, stated that Hall’s motion to correct had never been filed with the commissioner. Furthermore, Hall has not sought review by this court, pursuant to Practice Book § 4054, of the denial of his motion for rectification. Hall’s motion to correct is, therefore, not properly before this court.

Hall has not availed himself of the opportunity to have the commissioner’s finding and award corrected prior to his appeal of the review division’s affirmance of that award and has thereby deprived the commissioner of the opportunity to supply the findings that Hall claims have been omitted. We, therefore, decline to consider Hall’s claim that the review division improperly affirmed the commissioner’s finding that the plaintiff was an employee under the act given the exclusion in § 31-275 (5) (B) of casual laborers from the act’s definition of employee.

Both Hall and the Fund claim that the plaintiff is excluded from the act’s definition of employee pursuant to § 31-275 (5) (D) and that the review division improperly affirmed the commissioner’s award of benefits to the plaintiff based on the review division’s ruling that the construction of a barn is not “any type of service in or about a private dwelling” as contemplated by § 31-275 (5) (D). We agree.

Section 31-275 (5) (D) excludes from the definition of employee “any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week.” The plaintiff would, therefore, not be entitled to benefits under the act if his construction work on the barn at Hall’s residence was a type of service in or about a private dwelling provided he was not regularly employed by Hall over twenty-six hours a week.

In addressing this claim, the review division stated that, despite the commissioner’s implied finding that the claimant’s work week was only twenty hours, “the construction of a barn is not the ‘any type of service in or about a private dwelling’ contemplated by the statute.” The review division concluded from the legislative history of § 31-275 (5) (D) that the exclusion provided by that section was intended to refer only to housekeeping, babysitting and gardening chores.

While there is no room for construction of a statute where its language is clear and unambiguous; Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987); “ ‘[w]here the words of a statute fail to indicate clearly whether the provision applies in certain circumstances, it must be construed by this court . . . .’ Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980).” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405, 528 A.2d 805 (1987). The rules of statutory construction dictate that this court is to be guided by the language, purpose and legislative history of the statute in question. Id. Given the commissioner’s finding that the plaintiff was hired by Hall to assist in the construction of a barn at Hall’s residence, his conclusion that the plaintiff was Hall’s employee and the claim by Hall and the Fund that the plaintiff is excluded from the act’s definition of employee by § 31-275 (5) (D), we conclude that to determine whether the barn construction is “any type of service in or about a private dwelling” for the purpose of applying § 31-275 (5) (D) to this case an examination of the legislative history is required.

Unlike the review division, we do not find support in the legislative history for the conclusion that § 31-275 (5) (D) was intended to refer only to housekeeping, babysitting and gardening chores and does not include the construction of a barn. In proceedings before the Labor Committee on House Bill No. 2391, which revised our workers’ compensation statute and created the exclusion found at § 31-275 (5) (D), Representative J. Tyler Patterson commented: “I would like to address my remarks . . . principally to two of the items in the Bill. First of all, the section . . . which deals with the problem, somewhat up in the air today . . . concerning the babysitter, or the part time domestic employee. And I think the solution to that problem proposed in this Bill is a reasonable and proper one .... The babysitter would, so far as it’s possible to do in Legislation, be excluded from the provisions of the Act, the part time domestic employee, that is the inside employee we might call her, who is employed for less than 26 hours in any one week, is excluded from the Act, and the yardman, or part time gardener is excluded in effect, if he works for you for only one day per week. I think these are proper provisions. I don’t think we need to clutter up our Workmen’s Compensation Act or procedures with complete protection for that type of employment.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Labor Committee, 1961 Sess., pp. 369-70. In the Senate proceedings on the bill, Senator Anthony Miller stated: “The definition of employees is amended to eliminate [from] the provisions of the Act, any person who performs any type of service in or around a private home provided he is not so employed for more than 26 hours per week. This eliminates coverage for babysitters, part-time gardeners, etc., provided such persons are not employed by the owner or occupier more than 26 hours in any one week.” (Emphasis added.) 9 S. Proc., Pt. 9, 1961 Sess., p. 2972. In the House of Representatives, the bill’s proponent, Representative John Rand, stated: “It excludes any person working around a domestic household, inside or out, who works for that employer less than 26 hours per week. In other words, after this act becomes effective, you can have a babysitter, or a person helping in the house, or a yardman or a lawn mower for up to a little more than three days a week, without being subject to the act.” 9 H.R. Proc., Pt. 7, 1961 Sess., p. 3461.

We find nothing in the statements above to indicate that the legislature intended to exclude from coverage under the act only those persons hired to perform housekeeping, babysitting and gardening chores for the owner or occupier of a private dwelling for under twenty-six hours a week. We view the reference to those specific tasks in the above statements as examples of the type of employment to be excluded from the act, not as an all inclusive list of exclusions. We therefore conclude that the language “any type of service in or about a private dwelling” as used in § 31-275 (5) (D) is not limited by the legislative history to housekeeping, babysitting and gardening chores and that a normal reading of this provision would include the construction of a barn on the premises of a private residence.

The commissioner found that the plaintiff accepted Hall’s offer of work completing the construction of a barn at Hall’s residence in Andover and that the plaintiff’s average weekly wage was $360 (twenty hours at $18 per hour) for the Hall job. Those facts do not support the commissioner’s conclusion that the plaintiff is an employee of Hall entitled to benefits under the act, for the plaintiff has been found to be engaged in a service in or about a private dwelling and not regularly employed by the owner over twenty-six hours a week. The plaintiff therefore is excluded from the act’s definition of employee by § 31-275 (5) (D). We reverse the decision of the review division and order that the review division sustain the appeal of Hall and the Fund.

Because we find that the plaintiff is not an employee within the meaning of the act and order that the appeal of Hall and the Fund be sustained, we need not consider the Fund’s remaining claim that the review division erred in failing to sustain its appeal of the commissioner’s denial of the Fund’s motion to correct.

The decision of the review division is reversed and the case is remanded to the review division with direction to sustain the appeal and to return the case to the commissioner with the order that the plaintiff’s claim for benefits be denied.

In this opinion the other justices concurred.

       Appeals to the Appellate Court from decisions of the review division are taken pursuant to General Statutes § 31-301b, which provides: “Any party aggrieved by the decision of the compensation review division upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review division to the appellate court.”

       Hall’s claim that the plaintiff’s relationship to him was that of independent contractor and not that of employee was raised in his brief but was abandoned at oral argument before this court.

       “[Regs., Conn. State Agencies] Section 31-301-4. correction of finding.
      “If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions-of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.”

       “[Practice Book] Sec. 4051 (Formerly Sec. 3082). rectification of APPEAL; ARTICULATION
      “A motion for rectification or articulation shall be filed in triplicate with the chief clerk of the supreme court and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the chief clerk of the supreme court.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.
      “Corrections made before the record is printed shall be included in it. If the record has been printed, the chief justice may direct the chief clerk of the supreme court to prepare a supplemental printed record, to be printed and distributed in the same way as the original printed record, but in the absence of such a direction the chief clerk of the supreme court shall furnish the justices of the supreme court typewritten copies.”

       Practice Book § 2021 provides that “[w]ith regard to appeals from the compensation review division, references in the appellate rules to trial court or trial judge shall, where applicable, be deemed to mean the individuals who comprised the panel of the compensation review division which rendered the decision from which the appeal was taken.”

       Paragraph eight of the commissioner’s finding stated: “Claimant’s average weekly wage is found to be $360.00 (20 hours @ 18.00 an hour) for the Hall job.”

       In its motion to correct, the Fund sought correction of the commissioner’s findings to address the Fund’s claim of law that the plaintiff was excluded from the act’s definition of employee pursuant to General Statutes § 31-275 (5) (D).


author: Borden, J. Peters, C. J.,

text:
    The Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, et al.
    (14264)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued May 29
    decision released July 30, 1991

      Constance L. Chambers, assistant general counsel, for the appellant (named defendant).

      Dan E. LaBelle, for the appellee (plaintiff).
   Borden, J.

The dispositive issue in this administrative appeal is whether the plaintiff, the elections review committee of the eighth utilities district (ERC), an ad hoc committee composed of one district director and three volunteer electors, is a public agency within the meaning of General Statutes § l-18a (a). Section l-18a (a) was amended by No. 83-372 of the 1983 Pub-lie Acts to include in the definition of a “public agency” any “committee” of a public agency. We conclude that the legislature, in amending § l-18a (a), intended the term “committee” to encompass only a committee that is a subunit of the public agency that established it and, accordingly, affirm the judgment of the trial court.

The material facts are undisputed. The eighth utilities district (district) is the corporate and political body responsible for providing sanitary, sewer and fire services for the town of Manchester. The district is governed by a board of seven members, consisting of a president and six directors. The parties do not dispute that the district, including the board, is a public agency within the meaning of § l-18a (a). After the annual meeting of electors for the district in May, 1988, the district board established the ERC to study the procedures of the annual meeting in order to expedite that process and to obtain greater participation by the electors.

The committee appointed was composed of one district director and three volunteer electors who held no office in the district. The ERC was requested to file a report with the district, but it had no authority to change the procedures of the annual meeting or to alter any provisions of the by-laws. The ERC met on several occasions, publishing notice of each meeting. Although one member of the ERC, Ellen Burns Landers, the district director, kept informal notes of the meetings, the ERC did not keep minutes and did not follow all of the requirements of the Freedom of Information Act (FOIA); General Statutes §§ 1-7 through l-21k; for meetings of public agencies. See General Statutes § 1-21.

On March 29, 1989, the defendant Perry Dodson, an elector of the district, filed a request with the district clerk to examine the minutes of the meetings of the ERC. Not having received a response from the ERC, Dodson, on April 12, 1989, filed a petition for a hearing with the freedom of information commission (FOIC), claiming, inter alia, that the failure of the ERC to provide him with the minutes of its meetings was a violation of the FOIA because § l-18a (a) provides that “committees” of public agencies are likewise public agencies and, therefore, are subject to the requirements of the FOIA. Although Landers thereafter provided Dodson with a transcribed copy of her informal notes, Dodson did not receive the formal minutes of the meetings that he had requested.

At the hearing before the FOIC, the ERC claimed that it was not subject to the requirements of the FOIA mandating that minutes of meetings be maintained because it was not a public agency within the meaning of § l-18a (a). Specifically, the ERC claimed that, because all of the committee members were not members of the district board, the public agency that created the ERC, and because it did not possess decision-making authority, it did not constitute a public agency pursuant to § l-18a (a). The FOIC held, however, that because the ERC was a committee of the district board, which is a public agency, the committee is also a public agency under § l-18a (a), and, therefore, subject to the provisions of the FOXA. The FOIC ordered the ERC to reconstruct the minutes of its meetings, to provide Dodson with a copy of the minutes and henceforth to comply with the requirements of §§ 1-19 (a) and 1-21 (a).

The ERC appealed to the Superior Court, which sustained the appeal, concluding that the legislature, in amending § l-18a (a) to include committees as public agencies, intended “committee” to refer only to subunits composed of the respective public agency members, and not to a “committee” composed of some or all persons who are not agency members. The FOIC appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

The FOIC claims that the trial court improperly concluded that the ERC is not a public agency within the meaning of § l-18a (a) because: (1) the term “committee” is unambiguous and, therefore, the trial court improperly construed its meaning to exclude the ERC; and (2) even if the term “committee” were ambiguous such that it required construction, (a) the court failed to defer to the construction of the term by the FOIC, and (b) the court failed properly to ascertain the intent of the legislature in enacting No. 83-372 of the 1983 Public Acts. We conclude that the statutory language of § l-18a (a) is not absolutely clear and that the term “committee” was intended by the legislature only to include as public agencies committees that are subunits of the public agencies that create them.

The question whether the legislature intended a committee such as the ERC to be subject to the provisions of the FOIA when it enacted No. 83-372 of the 1983 Public Acts presents an issue of statutory interpretation and, therefore, is a question of law. Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 761, 591 A.2d 395 (1991). “The objective of statutory construction is to give effect to the intended purpose of the legislature.” State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1184 (1990). That axiom only applies in full force, however, “[w]here . . . the language of a statute is . . . absolutely clear’.’ on its face and where no ambiguity is raised in applying the statute in a particular case. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 554, 400 A.2d 712 (1978); see also Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 437-38, 489 A.2d 398 (1985), aff’d, 200 Conn. 630, 513 A.2d 52 (1986).

On appeal, the FOIC first argues that the language of § l-18a (a) is unambiguous, and, therefore, the trial court’s reference to the legislative history was improper. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). We disagree, however, that the language of the statute in question is “absolutely clear”; (emphasis omitted) Anderson v. Ludgin, supra, 554; when considered together with the rest of the statute and its background. A “committee” has been defined as “a body of persons delegated to consider, investigate, or take action upon and [usually] to report concerning some matter or business . . . .’’Webster’s Third New International Dictionary. Thus, although the ERC is a “committee” within the ordinary dictionary definition, it is unclear from an examination of the text of the statute whether the legislature intended the phrase “including any committee of any such office, subdivision, [etc.] . . .” (emphasis added) to encompass a committee that is composed of some or all persons who are not agency members. A “committee of” an agency would include a body composed solely of nonmembers of the agency to whom the agency had assigned a particular task only if the use of the possessive preposition were equivalent to “created by.” Under such a construction, even one person, wholly unassociated with the agency except for the project assigned to him for study and recommendation, such as an outside consultant, would constitute a “committee of” the agency. A narrow interpretation would limit that term to a committee composed exclusively of agency members or including a majority of agency members. Within these outer bounds of the term are those committees, like the ERC, that include one or more, but not a majority of agency members.

“When application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language ... we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity.” University of Connecticut v. Freedom of Information Commission, supra, 328. Therefore, we now examine other sources of possible enlightenment, namely, the history, purpose, objective and underlying policy of the statute. Anderson v. Ludgin, supra, 552-53; see also Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 438.

The FOIC claims that, should we conclude that § l-18a (a) requires construction, then the trial court failed properly to ascertain the intent of the legislature in enacting No. 83-372 of the 1983 Public Acts. After an examination of the relevant legislative history, we disagree.

While we agree with the trial court that much of the history of No. 83-372 of the 1983 Public Acts “is not too helpful,” our review discloses that Representative John W. Atkin, who reported the bill onto the floor of the House of Representatives, in addressing the underlying purpose and rationale of the bill, explicitly referred to the testimony of Mitchell Pearlman, the executive director and general counsel of the FOIC, at the legislative committee hearing. Atkin stated that, as “pointed out” by Pearlman, the purpose of the bill was to resolve a divergence between two trial court decisions concerning whether certain committees of public agencies are bound by the FOIA. 26 H.R. Proc., Pt. 4, 1983 Sess., p. 1348. “Statements made on the floor of the House, although not controlling, may be judicially noticed and are a strong indication of legislative intent.” Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987). Therefore, the statement of Atkin on the floor of the House incorporating the testimony of Pearlman is a strong indication that the legislature intended to adopt the amendment as described by and for the purposes stated by Pearlman.

We turn, therefore, to the testimony of Pearlman in the legislative committee hearing in an attempt to glean a degree of clarity regarding the legislature’s intent in adding the phrase “including any committee” to the definition of “public agency.” Pearlman explained that the FOIC had been interpreting the FOIA “so that the sub-units . . . come within the definition of public agency . . . .” Conn. Joint Standing Committee Hearings, Government Administration and Elections, Pt. 1,1983 Sess., p. 178. Pearlman went on to explain that two trial court decisions had come to conflicting conclusions concerning whether these committees of public agencies were subject to the FOIA.

In particular, Pearlman testified that “[o]ne court believes that sub-units of public agencies, these are really essentially committees or subcommittees, whatever they’re designated, where the committees are composed of less than a quorum of the entire public agency, are not subject to the FOI[A] law. As a result, we’ve had any number of public agencies, as a matter of design, have been setting up committees or subcommittees composed of less than a quorum. Typically they would reflect the same ratio of partisan membership as [the] entire body and that they would use these committees and subcommittees to do the fact-finding, the recommendation, the spade work for whatever legislation.” Conn. Joint Standing Committee Hearings, Government Administration and Elections, Pt. 1,1983 Sess., p. 178. Atkin, in describing the bill, specifically referred to the divergence of opinion in the courts as testified to by Pearlman.

The examples Pearlman used to demonstrate the problem that the bill would resolve further clarify the intent of the legislature. Pearlman discussed three cases. The first involved a subcommittee of the board of education of the town of North Haven. The subcommittee had refused to allow a fellow board member to attend a curriculum meeting because her attendance would have constituted a quorum, thereby requiring it to follow the provisions of the FOIA. It is clear from the use of the term “quorum” that the subcommittee at issue was a subunit of board members. Second, Pearlman discussed a subcommittee of the board of education of the city of Bristol that met concerning the closing of a school. Although not specifically stated, the members of the subcommittee necessarily had to be members of the board of education if they possessed the authority to close a school. Pearlman finally described a subunit of the state commission on hospitals and health care. There were seventeen members of this commission, which was divided into subunits, and certain hospitals were not allowed to participate in a subcommittee hearing concerning their budgets. Conn. Joint Standing Committee Hearings, Government Administration and Elections, Pt. 1, 1983 Sess., p. 179.

All the examples provided by Pearlman involved committees comprising subunits of public agencies. His testimony reflects a concern that a public agency would set up committees composed of a number of its own members in order to conduct business without complying with the FOIA, with the public agency merely rubber-stamping the decision reached by the committee. This would preclude the public from participation in the governmental process in violation of the policy of our FOIA, namely, to keep governmental activity open to the public. Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). The ERC, however, does not constitute such a committee or raise such a concern. Furthermore, there is no indication in the legislative history that the legislature intended a broader application of “committee” than that described by Pearlman at the committee hearing. We conclude, therefore, that in amending § l-18a (a), the legislature intended only that committees of public agencies that are subunits composed of members of the public agency be subject to the provisions of the FOIA.

The FOIC argues that this interpretation is violative of the rule of statutory construction that deference be given to an agency’s interpretation of its own legislation. Board of Trustees of Woodstock Academy v. Freedom of Information Commission, 181 Conn. 544, 551-52, 436 A.2d 266 (1980). This argument is of no merit. We are not bound by the interpretation of an agency on questions of law, such as the interpretation of a statute. University of Connecticut v. Freedom of Information Commission, supra, 328. Furthermore, even if the FOIC decisions cited were to be given any weight, the testimony of Pearlman, the general counsel of the FOIC, gave no indication that the bill was aimed at all committees established by public agencies. Rather, his testimony was specifically limited to those situations where the committee is a subunit of the public agency. We are persuaded by Atkin’s incorporation of Pearlman’s testimony in the House of Representatives, and by the lack of any legislative history to the contrary, that No. 83-372 of the 1983 Public Acts was not intended to include committees such as the ERC under the provisions of the FOIA.

The judgment is affirmed.

In this opinion Shea, Callahan and Glass, Js., concurred.

Peters, C. J.,

dissenting. I disagree that the elections review committee of the eighth utilities district is not a “committee” and thus is not a public agency subject to the Freedom of Information Act. General Statutes §§ l-18a through l-21k. As I read General Statutes § l-18a (a), it plainly includes a committee whose membership overlaps that of the public agency that is its creator. Even if I were persuaded, however, that the statute has some latent ambiguity, I would conclude that, in order to effectuate the regulatory purposes of the Freedom of Information Act, such a committee must conduct its business in accordance with the act’s mandate for public access to deliberations about public policy. Accordingly, I respectfully dissent.

The record establishes that the elections review committee (committee) was appointed by the eighth utilities district, a public agency, to formulate recommendations for changes in the district’s annual meeting procedures. The committee included one district director and three district electors. In the process of formulating its recommendations, the committee held a public hearing, but it did not otherwise comply with the requirements of the Freedom of Information Act. The gravamen of the complaint that brought this matter to the attention of the Freedom of Information Commission was the committee’s failure to keep minutes of its meetings as required by §§ 1-19 (a) and 1-21 (a) of the Freedom of Information Act.

The only issue before the trial court, and before this court, is whether the requirements of the Freedom of Information Act govern the activities of the elections review committee. The majority now concurs in the trial court’s holding that the applicable statutory provision, § l-18a (a), is ambiguous and that its legislative history counsels against inclusion of the elections review committee within the ambit of the statute. I disagree.

The text of § l-18a (a) includes, as a public agency, “any committee of any such [public] agency . . . .” (Emphasis added.) It is hard for me to find any ambiguity in that all-encompassing description. As the majority opinion notes, the elections review committee falls cleanly within the definition of “committee” contained in Webster’s Third New International Dictionary: “a body of persons delegated to consider, investigate, or take action upon and [usually] to report concerning some matter or business . . . .”

Two possible sources of latent ambiguity may be conjured up in support of the contrary conclusion. On the present record, the facts show that the authority of the elections review committee did not encompass the enactment of bylaw changes for the eighth utilities district but was limited to making recommendations about such changes. That limitation on the scope of the committee’s authority is a commonplace in committee functioning, which, as Webster’s notes, typically focuses on preparation of a report to the appointing authority. Alternatively, on facts other than those presented by this record, a public agency might appoint a “committee” composed entirely of public-spirited citizens, who had offered to contribute their services pro bono to promote good government. Arguably, such a committee might fall outside of the scope of § l-18a (a), because it might not be a “committee of” the public agency. The possibility that a statute might manifest some latent ambiguity in other circumstances does not, however, make it ambiguous as applied to the elections review committee. See, by way of analogy, State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984); Weil v. Miller, 185 Conn. 495, 500, 441 A.2d 142 (1981). I am unable to discern any other putative sources of latent ambiguity in § l-18a (a), and the majority opinion identifies none.

Conceding ambiguity, arguendo, I am equally unpersuaded that a functional analysis of § l-18a (a) supports excluding the elections review committee from the reach of the Freedom of Information Act. When we are confronted with ambiguity in a statute, the canons of statutory construction require us to ascertain the apparent intent of the legislature by examining the legislative history of the statute and the circumstances surrounding its enactment, in light of the purpose it was intended to serve. Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990); Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

In appraising the relevant legislative history, we must keep in mind what is at stake. If the elections review committee is entirely outside of the regulatory purview of the Freedom of Information Act, it is not only the preparation of proper minutes that will be excused. The committee, or its successor, will be free to conduct its deliberations entirely in private, having no legal obligation to conduct any public meeting whatsoever, whether its agenda be procedural reform or substantive amendment of the rules governing the authority vested in the utilities district. The eighth utilities district, in turn, upon receiving the report of the elections review committee or its successor, may vote to accept or reject the report without any public deliberations about the merits of its recommendations. For the process of getting business done, shaping the agenda is at least half the battle. No matter how well-meaning may be the intentions of the group to which that responsibility is delegated, to allow this crucial function to be conducted in deliberative proceedings from which the public may be entirely excluded is to validate a scenario that is inconsistent with the Freedom of Information Act’s strong legislative policy in favor of the open conduct of government and free public access to its records. Lieberman v. Board of Labor Relations, 216 Conn. 253, 266, 579 A.2d 505 (1990); Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980).

The legislative history on which the majority relies to counter this purposive construction of the 1983 amendment that added committees to the ambit of the Freedom of Information Act is the testimony of Mitchell Pearlman, the executive director and general counsel of the Freedom of Information Commission. Undeniably, Pearlman’s testimony focused on committees composed of subunits of public agencies. A ready explanation for that focus is that the then litigated cases arose in that context. That the legislature shared Pearlman’s concern about potential abuses arising out of committees composed entirely of public agency members does not demonstrate, to my mind, that it did not recognize the risk of a similar abuse for committees whose membership overlapped only partially with that of a public agency. Indeed, in enacting the amended § l-18a (a), the legislature, emphasizing the importance of public access to deliberations about public policy, specifically rejected a proposal to include within the coverage of the Freedom of Information Act only those committees that are empowered to make legally binding decisions. 26 H.R. Proc., Pt. 13,1983 Sess., pp. 4578-4628.

The Freedom of Information Act was intended to assure that public agencies in Connecticut conduct their affairs in accordance with the principles of open government. In extending that salutary principle to include committees appointed by public agencies to pursue a public agenda, the legislature intended, I believe, to include public access to the deliberations of any public committee on which any member of a public agency serves.

I respectfully dissent.

       General Statutes § l-18a (a) provides: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.”

       The effect of No. 83-372 of the 1983 Public Acts was to add the following italicized language to General Statutes § l-18a (a): “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.” (Emphasis in original.)

       General Statutes § 1-21 provides: “meetings of government agencies TO BE PUBLIC. RECORDING OF VOTES. SCHEDULE AND AGENDA OF MEETINGS TO BE FILED. NOTICE OF SPECIAL MEETINGS. EXECUTIVE SESSIONS. (a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer. Each such public agency of the state shall file not later than January thirty-first of each year in the office of the secretary of the state the schedule of the regular meetings of such public agency for the ensuing year, except that such provision shall not apply to the general assembly, either house thereof or to any committee thereof. Any other provision of sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, notwithstanding, the general assembly at the commencement of each regular session in the odd-numbered years, shall adopt, as part of its joint rules, rules to provide notice to the public of its regular, special, emergency or interim committee meetings. The chairman or secretary of any such public agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. The chief executive officer of any multitown district or agency shall file, not later than January thirty-first of each year, with the clerk of each municipal member of such district or agency, the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. The agenda of the regular meetings of every public agency, except for the general assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency’s regular office or place of business or, if there is no such office or place of business, in the office of the secretary of the state for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency. Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings. Notice of each special meeting of every public agency, except for the general assembly, either house thereof or any committee thereof, shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the secretary of the state for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency. The secretary or clerk shall cause any notice received under this section to be posted in his office. Such notice shall be given not less than twenty-four hours prior to the time of the special meeting; provided, in case of emergency, except for the general assembly, either house thereof or any committee thereof, any such special meeting may be held without complying with the foregoing requirement for the filing of notice but a copy of the minutes of every such emergency special meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with the secretary of the state, the clerk of such political subdivision, or the clerk of each municipal member of such multitown district or agency, as the case may be, not later than seventy-two hours following the holding of such meeting. The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency. In addition, such written notice shall be delivered to the usual place of abode of each member of the public agency so that the same is received prior to such special meeting. The requirement of delivery of such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the public agency a written waiver of delivery of such notice. Such waiver may be given by telegram. The requirement of delivery of such written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. Nothing in this section shall be construed to prohibit any agency from adopting more stringent notice requirements. No member of the public shall be required, as a condition to attendance at a meeting of any such body, to register his name, or furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to his attendance. A public agency may hold an executive session as defined in subsection (e) of section l-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.
      “(b) In determining the time within which or by when a notice, agenda or other information is required to be given, made available, posted or filed, under subsection (a), Saturdays, Sundays, legal holidays and any day on which the office of the agency, the secretary of the state or the clerk of the applicable political subdivision or the clerk of each municipal member of any multitown district or agency, as the case may be, is closed, shall be excluded.”

       Dodson requested, in particular: (1) copies of the minutes of all meetings of the eighth utilities district elections review committee; (2) copies of all surveys taken, including polls, and the results of any such polls; (3) copies of all written correspondence by electors concerning revisions to the eighth utilities district electoral process; and (4) copies of all decisions of the elections review committee regarding the eighth utilities district electoral process.
      The ERC provided Dodson with a transcribed copy of informal notes taken by Landers, and informed Dodson that no polls were taken, no written correspondence was received, and no minutes were taken at the meetings. At the hearing before the FOIC, Dodson alleged that the ERC failed to provide him with proper minutes of all of its meetings.

       The order entered by the FOIC provided: “1. To the extent possible, the respondent forthwith shall reconstruct minutes of its meetings between September 7,1988 to November 14,1988 inclusive, which shall reflect the time, date, and place of each meeting, the identities of the respondent’s members present at the meeting, the time when each member arrived at and departed from the meeting, and the business transacted and how each member voted on each decision and recommendation.
      “2. The respondent forthwith shall both provide the complainant with these minutes and file them with the district clerk.
      “3. Henceforth, the respondent shall act in strict compliance with the requirements of §§ 1-19 (a) and 1-21 (a), G.S. . . . recording of proper minutes and the filing of these minutes within the appropriate time period.”

       See footnote 2, supra.

       At the same time, the same authority defines the word in a legislative context as “a body of members chosen by a legislative body to give special consideration to pending legislation or to other legislative matters.” (Emphasis added.) Webster’s Third New International Dictionary.

       A great deal of the discussion in the House of Representatives concerned various amendments to the bill that are not relevant to this appeal.

       Representative John W. Atkin stated that the “bill is a fairly simple measure. It simply changes the definition of public agency. It’s been pointed out by Mr. [Pearlman], [general counsel] of the FOI[C], that what is happening in terms of subcommittees of public agencies is that sub-committees are appointed and there are two differing opinions that have gone through the courts as to whether they are indeed full committees or not and whether they have to fall under FOI[A] requirements.” 26 H.R. Proc., Pt. 4, 1983 Sess., p. 1348.

       Although we generally restrict our review of a statute’s legislative history to the discussions conducted on the floor of the House of Representatives or of the Senate, we will consider such committee hearing testimony of individuals addressing the proposed enactment when such testimony provides particular illumination for subsequent actions on proposed bills, such as in this instance. See In re Jessica M., 217 Conn. 459, 472 n.10, 586 A.2d 597 (1991); see also State v. Magnano, 204 Conn. 259, 273-74 n.8, 528 A.2d 760 (1987) (testimony from legislative committee useful to illuminate “the problem or issue which the legislature sought to resolve, and the purpose it sought to serve, in enacting a statute”). This case presents an excellent example of a situation where the underlying intent of the legislature can be illuminated because of the direct reference to Pearlman’s testimony by Atkin on the floor of the House.

       We note that throughout the discussions in the committee hearing, in the House of Representatives and in the Senate, the terms “committee,” “subcommittee” and “sub-units” were used interchangeably and without any obvious distinction intended.

       A “quorum” is defined as “[t]he minimum number of officers and members of a committee or organization, usually a majority, who must be present for the valid transaction of business.” American Heritage Dictionary (1978).

       We do not hold that a public agency may avoid having to comply with the provisions of the FOIA by appointing one or more persons who are not agency members to any of its committees. The facts of this case do not support such a pretext, however, and we will address such an occurrence when it is properly before this court.

       We note that two of the three FOIC decisions cited by the FOIC were rendered prior to the amendment in question and, therefore, provide no indication of the agency’s interpretation of this amendment.