source: Caselaw Access Project

license: Public Domain

text:
    Karel Marshak v. Sylvia Marshak et al.
    (14667)
    Peters, C. J., Callahan, Berdon, Norcott, Katz, Palmer and Santaniello, Js.

      Argued April 1
    decision released July 27, 1993

      Walter H. Scanlon, for the appellant (defendant James Ambadjes).

      Robert P. Hanahan, for the appellee (plaintiff).
   Callahan, J.

This appeal principally concerns the scope of liability for an action that the plaintiff, Karel Marshak, initiated against the defendants, Sylvia, Evelyn and Jacquelyn Marshak and James Ambadjes, for damages she allegedly sustained as a result of their assistance in the abduction of her children by Sheldon Marshak, her husband and the children’s other custodial parent. The plaintiff filed a complaint against the defendants claiming that each was liable to her for damages for conspiracy to interfere with her custodial relationship with the children, intentional infliction of emotional distress, and aiding and abetting in the children’s abduction. The trial court, Blue, J., rendered a judgment in favor of the plaintiff against Sylvia and Evelyn Marshak and James Ambadjes on the ground that they were liable to her for conspiracy and aiding and abetting. Ambadjes appealed from the judgment of the trial court to the Appellate Court, and we transferred his appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The trial court found the following relevant facts. Prior to the abduction of the children, Sheldon Marshak and the plaintiff were married in Waterbury on March 22,1975, and had lived together as husband and wife with six children in their home in Cheshire. The plaintiff had custody of two children from an earlier marriage. During her marriage to Sheldon, she had given birth to four more children, who are the children involved in this litigation.

Sheldon operated a paint and building supply business in Waterbury. The defendant lived in Waterbury where he had owned and operated a body shop known as Ambas Auto Works. Sheldon and the defendant frequently had conducted business together. They also appeared to be close friends. Sheldon had occasionally taken his children to the defendant’s house, and the defendant had stored a number of motor vehicles on the Marshak property. In 1985, the defendant and his wife had decided that they would purchase a lot from the Marshaks and planned to build a house next to the Marshaks’ home in Cheshire. The defendant and his wife met with Sheldon and the plaintiff in June, 1985, to negotiate the purchase of the lot. They reached an agreement whereby a deposit would be placed on the property. There was no documentation of the agreement. The defendant’s wife, however, on June 10,1985, had written a check for $1000 to Sheldon. Thereafter, on July 1, she had written a check for $1000 to the plaintiff and on July 15, had made out three bank checks in the amount of $1000 each to the plaintiff. On August 1, 1985, a check in the amount of $3600 had been issued by Ambas Auto Works to Sheldon Marshak.

Toward the end of July, 1985, the plaintiff had told Sheldon that she wanted a divorce. On August 6,1985, she had consulted a lawyer for the first time. Also on August 6,1985, Sheldon had gone to the Ambas Auto Works and had asked the defendant if he would drive him and his children to John F. Kennedy International Airport in New York the next day. The defendant had agreed. Sheldon had then returned home at approximately 7 p.m. on August 6 and had begun an altercation with the plaintiff. Fearing that Sheldon would assault her, she had run to a telephone in the house to call the police. Sheldon had followed her and, before she could reach the phone, he had ripped it from the wall. The plaintiff had then fled to other parts of the house, attempting to reach other phones, only to have her husband rip the phones from the wall before she could use them. Thereafter, Sheldon had gathered the children together and had ordered them into his car. After getting into the car with the children, he informed the plaintiff, who had exited the house in an attempt to prevent his leaving with the children, that if she did not get out of the way he would “run over” her and he then drove off.

Approximately one hour after this incident, the plaintiff called Sylvia Marshak, Sheldon’s mother, at her home in Waterbury and inquired whether Sheldon was there. Sylvia denied knowing where he was. The plaintiffs brother then drove by Sylvia’s house and observed Sheldon’s car parked in her driveway. Sheldon later drove to the defendant’s house with the four children and remained there for forty-five minutes to one hour. At 2:30 the next morning, August 7, Sheldon called the plaintiff. He told her that he was in New York and that he intended to take the children to the Bronx Zoo that day. He also said that he was going to get some counseling from a rabbi and return home the following evening. Instead, at approximately. 7:45 that morning, Sheldon again went to the defendant’s house with his children. Later that morning the defendant drove Sheldon and the children to the John F. Kennedy International Airport in Sheldon’s car. En route to the airport, they stopped at the United States state department office in Stamford in order to obtain passports for the children. There the defendant apparently signed an affidavit identifying Sheldon so that Sheldon was able to obtain the passports. The defendant then drove to New York and dropped Sheldon and the children off at the airport where they boarded a plane for a flight to Tel Aviv, Israel. After leaving Sheldon and the children at the airport, the defendant drove Sheldon’s car back to Waterbury and parked it in front of his own house.

Worried that her husband had not returned with the children, the plaintiff called the defendant at approximately 1:30 a.m. on August 8. The defendant told the plaintiff that he had not seen Sheldon in several days. When there was still no sign of the children by August 9, the plaintiff again called the defendant and pleaded with him to tell her where Sheldon and the children had gone. Again, the defendant denied knowing where they were. Also on August 9, still unaware of the whereabouts of her husband and children, the plaintiff filed an ex parte application for a protective order and a dissolution of marriage complaint with the Superior Court in Waterbury. Judge Robert Glass granted an ex parte protective order and awarded the plaintiff temporary custody of the four missing children. Also on August 9, Judge John Ottaviano, Jr., signed a warrant for Sheldon’s arrest for the crimes of disorderly conduct and reckless endangerment based on the incident of August 6 at the Marshak home.

On August 16,1985, the defendant went to the Marshaks’ property and removed some of the vehicles that he had stored there. At that time, the plaintiff again asked the defendant if he had seen Sheldon and he again denied having seen Sheldon or knowing his whereabouts. During the trial, however, he admitted that he had spoken to Sheldon on the telephone on a weekly basis the first four to six weeks after Sheldon had flown to Israel. On August 19, the trial court, Kremski, J., held a hearing on the plaintiff’s application for temporary protective and custody orders and granted a continuance of the August 9 ex parte orders for ninety days. On September 23, the defendant returned to the Marshak property and removed more of his vehicles. At that time, he said nothing to the plaintiff regarding Sheldon’s whereabouts.

Finally, on October 15, 1985, two months after the children had been removed from their home, the plaintiff received a telephone call from Sheldon. He told her that if she did not withdraw her dissolution action, she would never see the children again. On October 28, 1985, the Superior Court awarded pendente lite custody of the four missing children to the plaintiff.

On February 10, 1986, the plaintiff, having learned that Sheldon was in Israel with the children, flew to that country in the first of several costly efforts to find the children and bring them back to Connecticut. The plaintiff located her husband and the children in Israel. She thereafter took up residence in Jerusalem and commenced legal proceedings there to recover custody of the children. Those proceedings resulted in an agreement, on April 22,1986, pursuant to which the parents were to have joint custody of the children and Sheldon was to return the children to the United States by June 28, 1986. The plaintiff returned to Connecticut to await their arrival. Neither Sheldon nor the children, however, returned.

This precipitated two more trips to Israel by the plaintiff. On the second trip, the plaintiff participated in court proceedings in Jerusalem that had been initiated by Sheldon to gain custody of the children for himself. On November 19,1987, however, the Israeli court rendered a judgment awarding custody of all four children to the plaintiff. The court stayed execution of its judgment for fifteen days to allow Sheldon to appeal. While the judgment was stayed, Sheldon took the children out of school and disappeared.

The plaintiff next located her husband in Brazil. She flew to Brazil in June, 1991, and had Sheldon arrested in Sao Paulo. Before she could gain custody of the children, however, Sheldon was released by the police. He and the children thereafter disappeared and their current whereabouts are unknown to the plaintiff.

To commence this action the plaintiff, on February 7, 1989, filed a complaint against the defendant and her husband’s mother and sisters claiming that they were jointly and severally liable for the damages she had suffered and was suffering as a result of the loss of the children. In three separate counts the plaintiff asserted that the defendant was liable for conspiracy to interfere with her custodial relationship, intentional infliction of emotional distress, and aiding and abetting in the abduction of her children.

On January 16, 1992, the trial court, Blue, J., after hearing three days of testimony and examining a number of documents, made extensive factual findings and reviewed the claimed theories of liability as they applied to all of the defendants. The court initially decided against using the plaintiff’s claim for intentional infliction of emotional distress as a basis for the defendants’ liability. It reasoned that an action for intentional infliction of emotional distress exists in the context of behavior directed at a claimant and it is unlikely that abductions ordinarily occur for the specific purpose of tormenting the claimant. The trial court then adverted to the tort of child abduction (or interference with custodial relationship) and considered whether such a tort was, or should be, a legally cognizable cause of action in Connecticut. After reviewing authority from other jurisdictions, and the policy supporting such a cause of action, the trial court concluded that the tort of child abduction should be recognized by the Connecticut judiciary.

The court then found that the defendant was liable to the plaintiff for having conspired with Sheldon Marshak and having aided and abetted him in committing the tort of child abduction. The trial court found that “[fit is ... a fair inference from the facts already described and about to be described that [the defendant] knew very well that he was participating in a forcible abduction.” The trial court further found that “[the defendant’s] conduct differs from Sylvia’s and Evelyn’s in that it was largely limited to assisting Sheldon in the initial abduction of August 6-7, 1985. [The defendant’s] role was, however, a crucial one, for he took Sheldon and the children to the airport and enabled them to get passports. Without this assistance, none of the remaining events of this sad case would have been possible. The court finds [the defendant’s] assistance to have been both substantial and necessary. The court has already found that he acted with full knowledge of what he was doing in combination with Sheldon. Under the circumstances he became a coabductor and, like Sylvia and Evelyn, a joint tortfeasor in the original sense of the term.”

The trial court then found that all the defendants were the proximate cause of the damages to the plaintiff for the loss of her children’s companionship, loss of parental rights, emotional distress, and her economic loss. The court concluded, consequently, that the defendants were jointly and severally liable to the plaintiff for such damages in the amount of $886,499.

Following the rendering of the trial court’s judgment in a memorandum of decision dated January 16,1992, the defendant filed a motion to set aside the judgment. He argued that because there was no evidence offered at trial as to his alleged complicity in the conspiracy after August, 1985, he should be allowed to amend his pleadings to add the special defense of the statute of limitations pursuant to General Statutes § 52-577. The trial court denied the defendant’s motion.

On appeal, the defendant claims that the trial court improperly: (1) refused to open the judgment to allow him to amend his pleadings to allege a special defense of the statute of limitations that would have defeated any liability for his alleged participation in the tort of child abduction; (2) concluded that the defendant was liable for the tort of child abduction when the children’s father had joint legal custody of the children at the time of their removal from the family home; (3) disregarded the effect of the Israeli custody agreement of April 22, 1986, between the plaintiff and her former husband on the defendant’s culpability; and (4) recognized the tort of child abduction when there is no such cause of action in Connecticut and when the complaint did not seek recovery under this common law theory, but rather under §§ 53a-97 and 53a-98 of the penal code, which do not provide a basis for civil liability. Because we agree with the defendant on his second claim, that the trial court improperly concluded that he was liable for child abduction under the circumstances of this case, we reverse the judgment of the trial court as to him. Consequently, we are not required to address the defendant’s remaining claims.

The defendant claims that because the children’s father had joint legal custody of the children at the time of their removal from the family home, the trial court improperly concluded that he was liable for conspiring with the father and aiding and abetting him in the abduction of the children. We agree.

In its memorandum of decision, the trial court, after stating that courts in other jurisdictions have recognized the tort of child abduction; see DiRuggiero v. Rodgers, 743 F.2d 1009, 1017-18 (3d Cir. 1984) (applying New Jersey law); Bennett v. Bennett, 682 F.2d 1039, 1044 (D.C. Cir. 1982) (D.C. law); Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir. 1980) (Texas law); Hinton v. Hinton, 436 F.2d 211, 212-13 (D.C. Cir. 1970) (D.C. law); Kunz v. Deitch, 660 F. Sup. 679, 683 (N.D. Ill. 1987) (Illinois law); Lloyd v. Loeffler, 539 F. Sup. 998, 1004 (E.D. Wis.), aff'd, 694 F.2d 489, 495-97 (7th Cir. 1982) (Wisconsin law); Kajtazi v. Kajtazi, 488 F. Sup. 15, 19 (E.D.N.Y. 1978) (New York law); Abdul-Rahman Omar Adra v. Clift, 195 F. Sup. 857, 866-67 (D. Md. 1961); Simmons v. Simmons, 41 F. Sup. 545, 548-49 (E.D.S.C. 1941) (South Carolina law); Borer v. American Airlines, Inc., 19 Cal. 3d 441, 451 n.3, 563 P.2d 858, 138 Cal. Rptr. 302 (1977); D & D Fuller CATV Construction, Inc. v. Pace, 780 P.2d 520, 523-24 (Colo. 1989); Shields v. Martin, 109 Idaho 132, 136-38, 706 P.2d 21 (1985); Whitehorse v. Critchfield, 144 Ill. App. 3d 192, 194-95, 494 N.E.2d 743 (1986); Montgomery v. Crum, 199 Ind. 660, 669-73, 161 N.E. 251 (1928); Wood v. Wood, 338 N.W.2d 123, 127 (Iowa 1983); Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 859-61, 571 N.E.2d 340 (1991); Larson v. Dunn, 460 N.W.2d 39, 44-45 n.3 (Minn. 1990); Plante v. Engel, 124 N.H. 213, 216, 469 A.2d 1299 (1983); La Grenade v. Gordon, 46 N.C. App. 329, 332, 264 S.E.2d 757 (1980); McBride v. Magnuson, 282 Or. 433, 435-37, 578 P.2d 1259 (1978); Bedard v. Notre Dame Hospital, 89 R.I. 195, 198, 151 A.2d 690 (1959); Hershey v. Hershey, 467 N.W.2d 484, 488-89 (S.D. 1991); Silcott v. Oglesby, 721 S.W.2d 290 (Tex. 1986); concluded that such a tort should be recognized in Connecticut. The court further noted that such a cause of action was sanctioned by the Restatement (Second) of Torts (1977), § 700, which provides: “One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.”

Section 700 of the Restatement (Second), however, does not expressly state that it applies to third parties acting at the direction of, or in complicity with a parent legally entitled to the joint custody of a child. The trial court nevertheless reasoned that because an abducting parent can be held liable for taking a child from a custodial parent, any third person who conspires with an abductor, or aids or abets in the abduction of a child, can also be held liable. See, e.g., Fenslage v. Dawkins, supra, 1109; Lloyd v. Loeffler, supra; Kajtazi v. Kajtazi, supra; Kipper v. Vokolek, 546 S.W. 521, 525-26 (Mo. App. 1977); La Grenade v. Gordon, supra, 331. In order to extend liability to the defendant, the trial court noted that §§ 53a-97 and 53a-98 of the penal code forbid the abduction of a child from a parent. General Statutes § 53a-98 provides that a person is guilty of custodial interference when: “(1) Being a relative of a child who is less than sixteen years old and intending to hold such child permanently or for a protracted period and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian ... or (3) knowing that he has no legal right to do so, he holds, keeps or otherwise refuses to return a child who is less than sixteen years old to such child’s lawful custodian after a request by such custodian for the return of such child.” By referencing these statutes, the trial court suggested that third party civil liability can be imposed on any person, including a nonparent, for conspiring with, or aiding or abetting another to violate their provisions. That appears to have been the trial court’s basis for creating a legal duty owed by the defendant to the plaintiff. Cf. Lloyd v. Loeffler, supra (liability based on Wisconsin’s criminal statute); Rosefield v. Rosefield, 221 Cal. App. 2d 431, 433, 34 Cal. Rptr. 479 (1963) (liability based on California’s criminal statute); Spencer v. Terebelo, 373 So. 2d 200, 202 (La. App. 1979) (liability based on Louisiana statute).

The trial court noted that liability could be imposed for child abduction upon a third party who aided another in the removal of a child from its custodial parent under a civil conspiracy theory. The contours of “a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.” Williams v. Maislen, 116 Conn. 433, 437, 165 A. 455 (1933).

We agree with the trial court that the recognition of the tort of child abduction or custodial interference, as applied to either a parent or a third party, might well play an important role in encouraging the speedy return of abducted children to the custodial parent and in compensating that parent for the harm suffered from the child’s absence. We also agree that such a tort may have a place in our jurisprudence. We disagree with the trial court’s conclusion, however, that, under the circumstances of this case, the defendant was liable for such a tort. In order to impose liability on a third party for conspiring with or aiding another in the removal of children from the custodial parent, the third party must have conspired with, or aided the other, “to do a criminal or an unlawful act or a lawful act by criminal or unlawful means.” Williams v. Maislen, supra. In this case, however, civil liability was predicated on acts that were not themselves unlawful when they occurred because on August 7, 1985, the date on which the defendant drove the children and their father to New York, the father still had joint legal custody of the children.

Under existing law, a factual predicate for any tort related to child abduction, however derived, is the unlawful custody of a child. The Restatement (Second) of Torts, § 700, for instance, does not impose liability on a parent who has legal custody of a child. Comment (c) to § 700 provides: “When the parents are by law jointly entitled to the custody and earnings of the child, no action can be brought against one of the parents who abducts or induces the child to leave the other.” Similarly, although a duty to a custodial parent may be inferred from §§ 53a-97 and 53a-98 of the penal code, the breach of such a duty would take place only if the alleged abductor in fact knows that he has no “legal right” to the child’s custody.

The trial court did not find that the defendant had knowingly conspired with the plaintiff’s husband, Sheldon, or had aided and abetted his actions at a time other than when Sheldon had joint legal custody of the children. The trial court in fact stated in its memorandum of decision that “Sheldon had joint custody of the children until August 9, 1985, by which time they were in Israel and [the defendant’s] role (and Sylvia’s and Evelyn’s initial roles) had already been played.” The trial court nonetheless concluded that the fact that Sheldon had joint legal custody of the children during the time the defendant had allegedly conspired with and assisted him did not relieve the defendant of liability. To hold otherwise, according to the trial court, “not only overlooks the outrageousness of [his] actions prior to August 9, 1985, but it ignores the actual policy of the law.”

The trial court noted that § 700 of the Restatement (Second) of Torts is directed at actions “brought against one of the parents.” The court determined, however, that “[a]ctions against third parties assisting those parents stand on an altogether different footing.” According to the trial court, the defendant, unlike a parent, is not jointly entitled to the custody of the child and, as a third party, had “no right to decide who should have their custody.” The trial court therefore concluded that the defendant’s actions in assisting the father at a time when the father was jointly entitled to custody of the children provided the requisite basis for imposing liability upon the defendant for the harm the plaintiff had suffered up until the time of the trial. We disagree.

The absence of a specific finding by the trial court that the defendant had conspired with or aided the children’s father at a time after the father had been stripped of any legal entitlement to custody of the children is fatal to the plaintiffs claim. Although the trial court correctly stated that, standing alone, the plaintiffs claim that the defendant had conspired with or aided her husband was insufficient unless based on some underlying cause of action; see Carney v. DeWess, 136 Conn. 256, 262, 70 A.2d 142 (1949); Williams v. Maislen, supra; the trial court failed to find the facts necessary to satisfy the elements of an independent underlying cause of action. On August 7, 1985, when the defendant drove Sheldon and the children to the airport, Sheldon had not yet violated either §§ 53a-97 or 53a-98. Sheldon violated those provisions only after August 9, 1985, the date on which the court granted the plaintiff temporary custody of the children. The trial court, however, made no finding that the defendant conspired with or assisted Sheldon after August 7, 1985. The trial court found to the contrary that on August 7, the defendant’s role “had already been played.” It would be an overly expansive reading of § 700 of the Restatement to impose liability for conspiracy on third parties, such as the defendant, who have agreed to assist or have assisted another in doing something that at the time was not unlawful. Moreover, although the legislature, by enacting §§ 53a-97 and 53a-98 of the penal code, may have codified a duty not to interfere with the rights of a custodial parent, the breach of such a duty can occur only if in fact the provisions of those statutes have been violated. A contrary construction would expand the ambit of such provisions “by implication to create a liability which no language of the act purports to create.” Nowak v. Nowak, 175 Conn. 112, 125, 394 A.2d 716 (1978).

The plaintiff argues, and the trial court concluded, however, that an expansion of the coverage of the tort of child abduction to apply to the present facts was warranted because it was reasonably foreseeable to the defendant that his actions on August 7, 1985, would subsequently deprive the plaintiff of the rightful custody of the children. In the view of the plaintiff and the trial court, the reasonable foreseeability that his actions might ultimately result in the unlawful abduction of the children by their father was sufficient to attach continuing liability to the defendant. To support this argument, the plaintiff reasons that because the basis of the defendant’s liability was an alleged conspiracy, the defendant’s liability continued to attach to the foreseeable consequences of his actions. We disagree.

“[T]here is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself.” Cole v. Associated Construction Co., 141 Conn. 49, 54, 103 A.2d 529 (1954). That the plaintiff has made an “allegation as to conspiracy brings no strength to the declaration, for it shows no additional cause of action.” Id.

The trial court found that the defendant in assisting Sheldon had acted at a time that predated the award of sole custody of the children to the plaintiff, when Sheldon was entitled to their joint custody. The court, moreover, did not make a specific finding that any alleged conspiracy entered into, or aid furnished to Sheldon by the defendant, continued beyond August 7, 1985. The court found rather that the defendant’s role had already “been played” by the time that sole custody of the children was first awarded to the plaintiff on August 9,1985. The defendant’s conduct, therefore, even if in pursuance of an agreement to assist Sheldon to take his children to Israel, was not, when completed, unlawful. Conduct that was not unlawful when consummated cannot be the basis for damages or continuing liability in order to accomplish what may appear to be a desirable result. Jones v. O’Connell, 189 Conn. 648, 662, 458 A.2d 355 (1983).

Without an independent basis for finding illegality in the defendant’s actions in allegedly conspiring with and aiding Sheldon prior to August 9, 1985, the date of the order awarding custody to the plaintiff, and in the absence of a specific finding that the defendant conspired with or aided Sheldon subsequent to that date, the plaintiff cannot prevail on her claim against this defendant. Id.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other justices concurred.

       At the conclusion of the plaintiff's case-in-chief, the trial court granted the defendant Jacquelyn Marshak’s motion for a directed verdict in her favor concerning the claims against her.
      The defendants Sylvia and Evelyn Marshak filed a separate appeal of the trial court’s judgment. Both, however, withdrew their appeal on December 9, 1992. The defendant James Ambadjes is the only defendant involved in this appeal and all references hereinafter to the defendant are to him. The trial court’s decision makes it abundantly clear that the aid furnished by Sylvia and Evelyn, particularly that furnished by Sylvia, was the most substantial factor in permitting Sheldon Marshak to be able, over the years, to remain outside the country with the children.

       The defendant’s appeal came before this court sitting en banc.

       The trial court did not make a specific finding regarding the relevancy or import of the payments to the plaintiff’s claims.

       Sheldon Marshak was six feet tall and weighed three hundred pounds.

       On August 8, the plaintiff also called Sylvia Marshak, who likewise told her that she had not seen Sheldon.

       The trial court in the present action took judicial notice of the file in the action for dissolution of the marriage between Karel and Sheldon Marshak. Marshak v. Marshak, Superior Court, judicial district of Waterbury, Docket No. 73483 (July 2, 1987), aff'd, 17 Conn. App. 835, 556 A.2d 189 (1989).

       On July 2, 1987, a judgment granting a dissolution of the Marshaks’ marriage was filed in the Superior Court in Waterbury. In his opinion granting the dissolution, Judge Robert Wall found intolerable cruelty by Sheldon toward the plaintiff and an irretrievable breakdown of the marriage. Judge Wall awarded sole custody of the four children to the plaintiff.

       “[General Statutes] Sec. 52-577. action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       After the trial court’s judgment, the defendant filed a motion to articulate requesting that the trial court articulate its decision concerning twenty-four specifics. The trial court denied this motion. The defendant thereafter filed a similar motion to articulate with the Appellate Court, which granted the motion and ordered the trial court to respond to several questions raised in the motion. The questions largely addressed the issues concerning the defendant’s liability, if any, after Sheldon and Karel Marshak had entered into a joint custody agreement on April 22, 1986, in Israel. The trial court responded that such an agreement did not diminish the defendant’s liability because the agreement had been broken by Sheldon; Sheldon’s breaking the agreement was not the sole proximate cause of the plaintiffs injuries; and it was foreseeable that Sheldon would breach such an agreement.

       Since 1938, the American Law Institute has recognized as a cause of action conduct “inducing [a] minor child to leave or not to return home.” Restatement (First), Torts (1938) § 700.
      Comment (g) of § 700 of the Restatement (Second) of Torts (1977) allows the parent to recover for loss of society, emotional distress, loss of service, and reasonable expenses of regaining the custody.

       “[General Statutes] Sec. 53a-97. custodial interference in the first degree: class d felony, (a) A person is guilty of custodial interference in the first degree when he commits custodial interference in the second degree as provided in section 53a-98: (1) Under circumstances which expose the child or person taken or enticed from lawful custody or the child held after a request by the lawful custodian for his return to a risk that his safety will be endangered or his health materially impaired; or (2) by taking or enticing the child or person out of this state.
      “(b) Custodial interference in the first degree is a class D felony.”
      “[General Statutes] Sec. 53a-98. custodial interference in the second degree: class a misdemeanor, (a) A person is guilty of custodial interference in the second degree when: (1) Being a relative of a child who is less than sixteen years old and intending to hold such child permanently or for a protracted period and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian; (2) knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or any person entrusted by authority of law to the custody of another person or institution; or (3) knowing that he has no legal right to do so, he holds, keeps or otherwise refuses to return a child who is less than sixteen years old to such child’s lawful custodian after a request by such custodian for the return of such child.
      “(b) Custodial interference in the second degree is a class A misdemeanor.”

       Subdivision (2) of § 53a-98 (a) is irrelevant to this appeal.

       The framework for employing a criminal statute to derive a cause of action in tort was set forth by the United States Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). “In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted’ . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?” (Emphasis in original.) Id.

       Authorities unanimously agree that the abduction of children is a grave problem. L. Karp & C. Karp, Domestic Torts: Family Violence, Conflict & Sexual Abuse (1989) § 5.01; S. Abrams, Children in the Crossfire: The Tragedy of Parental Kidnaping (1983) p. 5; M. Agopian, Parental Child-Stealing (1981) p. 1. Statistics on the abuses related to child abduction are contained in the Office of Juvenile Justice and Delinquency Prevention, United States Department of Justice, Missing, Abducted, Runaway and Thrownaway Children in America (1990) p. i.

       General Statutes § 45a-606 provides in relevant part: “The father and mother of every minor child are joint guardians of the person of the minor, and the powers, rights and duties of the father and the mother in regard to the minor shall be equal.”

       Nor did the trial court find that the defendant had conspired with Sylvia and Evelyn Marshak whose activities in support of Sheldon appear to have continued long after Sheldon had been divested of any legal right to the custody of the children.

       At oral argument the plaintiff conceded that the trial court had never made a specific finding linking Sheldon’s phone calls to the defendant to the alleged conspiracy.

       Our conclusion should not suggest that we are limiting the class of potential defendants against whom the tort of child abduction might apply, nor precluding the extension of liability to third parties who conspire with and aid others in abducting children. Imposition of such liability may well be efficacious in deterring child abductions. See Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir. 1980); Lloyd v. Loeffler, 539 F. Sup. 998, 1004 (E.D. Wis.), aff’d, 694 F.2d 489, 495-97 (7th Cir. 1982); Kajtazi v. Kajtazi, 488 F. Sup. 15, 19 (E.D.N.Y. 1978).


author: Berdon, J.

text:
    Department of Administrative Services et al. v. Employees’ Review Board et al.
    (14615)
    Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued May 6
    decision released July 27, 1993

      Robert J. Krzys, for the appellants (defendant Marietta G. Sonido et al.).

      Laurie Adler, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellees (plaintiffs).
   Berdon, J.

The defendants, state managerial employees, appeal from the judgment of the trial court that the employees’ review board (review board) lacked jurisdiction to hear their grievances arising out of an employment benefit that allegedly discriminated against managerial employees. The employment benefit took the form of subsidized rent for state owned rental housing occupied by state employees. The state attempted to increase the rent on all of its housing, and thereby reduce the cost of this benefit. The increased rent was applied unilaterally to the defendants, who as managerial employees have no collective bargaining rights. The state was required, however, to negotiate the increase with collective bargaining unit employees, and at least one bargaining unit took the matter to arbitration and won a lower rent increase. The issue to be resolved is whether this difference in outcomes, resulting from collective bargaining law, constitutes a form of discrimination within the jurisdiction and remedial authority of the review board.

The facts, as found by the review board, are as follows. The defendant Marietta G. Sonido is a state employed psychiatrist and medical director at Fairfield Hills Hospital (hospital), a state hospital for the mentally ill. The defendant Okhikadu Devarajan is also employed by the state as chief of psychiatry at the hospital. The defendants lived for a number of years in state owned rental housing on the hospital grounds. Their rents were heavily subsidized by the state as a recruitment and retention incentive, so that the defendants were able to pay rents that were considerably below the contemporary rental market value of the housing. The defendants are managerial employees, and thus, unlike many of their physician and psychiatrist colleagues at the hospital, the defendants have no state employee collective bargaining rights. General Statutes § 5-270 (b).

In 1987, the state reappraised its state employee housing rental rates to reflect the prevailing market rate. The commissioner of administrative services ordered that all state employees occupying state housing, including managerial and collective bargaining employees, pay rent at 70 percent of the appraised market value, to be phased in over a three year period. The commissioner unilaterally applied the new rent levels to the defendants, resulting in a 797 percent increase in Devarajan’s biweekly rent from $51 in 1987 to a completely phased in rent of $402 in 1990, including utilities. Sonido received a 669 percent increase, from $77 paid biweekly in 1987 to a completely phased in rent of $515 in 1990, including utilities. The review board found that these increases, in essence, constituted a pay cut for the defendants.

The commissioner was not able to apply higher rents unilaterally to bargaining unit employees, due to collective bargaining law which places a duty upon employers to bargain in good faith with the representatives of the employees prior to instituting modifications in terms and conditions of employment. Although some bargaining units acquiesced in the increases, the Health Care (P-1) collective bargaining unit took the matter to arbitration and won much smaller rent increases, amounting to a total increase of 52 percent over a three year period.

Citing the disparity between rental increases for managerial employees and collective bargaining employees, the defendants filed grievances in November, 1988. General Statutes (Rev. to 1989) § 5-202. The defendants’ supervisor and appointing authority waived the first two steps of the preliminary review procedure; General Statutes (Rev. to 1989) § 5-202 (g) and (h); and the office of labor relations of the department of administrative services denied the grievances at the third and final stage of the preliminary review procedure. General Statutes (Rev. to 1989) § 5-202 (i). The defendants appealed to the review board claiming that the disparity in rental increases constituted a form of discrimination within the review board’s remedial authority under § 5-202 (a).

Before the review board, the state argued that the rental increases did not constitute discrimination within the review board’s jurisdiction. The review board held in favor of the defendants, finding discrimination within the meaning of § 5-202 (a) on the basis of the different treatment between managerial employees and collective bargaining employees. The review board defined “discrimination” as “treating similarly-situated persons differently on a matter of importance.” The review board concluded that the defendants and the health care collective bargaining employees were similarly situated, and stated that while “[pjerfect equality in compensation” between managers and nonmanagerial employees is not required, a “gross differential” between the two groups is unacceptable. The review board found such a gross differential and ordered restitution of part of the difference between the rents paid by the defendants and the rents paid by the employees in the health care collective bargaining unit.

The plaintiffs appealed to the trial court pursuant to General Statutes §§ 5-202 (l) and 4-183 (a). The trial court sustained the appeal, holding that the review board had exceeded its statutory authority because the disparities complained of did not constitute “discrimination.” The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We now affirm the judgment of the trial court.

Section 5-202 (a) delimits the jurisdiction of the review board. It provides that “[a]ny employee who is not included in any collective bargaining unit of state employees and who has achieved a permanent appointment as defined in subsection (r) of section 5-196 may appeal to the employees’ review board if he or she . . . is demoted, suspended or dismissed, or is aggrieved as a result of alleged discrimination . . . (Emphasis added.)

The defendants rely on the “discrimination” clause of § 5-202 (a) as the basis for the review board’s jurisdiction over their appeal. The discrimination that the defendants allege is that managerial employees must pay 70 percent of the market value of employee housing rent, while at least some nonmanagerial employees covered by collective bargaining agreements pay a substantially lower rent. Section 5-202 does not define the term “discrimination,” nor does General Statutes § 5-196, the definitional section of the State Personnel Act. We are therefore presented with an issue of statutory construction.

The purpose of statutory construction is to determine the intent of the legislature. Police Department v. State Board of Labor Relations, 225 Conn. 297, 303 n.7, 622 A.2d 1005 (1993); All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. Police Department v. State Board of Labor Relations, supra, 300; Crocetto v. Lynn Development Corporation, 223 Conn. 376, 381, 612 A.2d 1212 (1992). “[A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” Lieberman v. State Board of Labor Relations, 216 Conn. 253, 262, 579 A.2d 505 (1990). This case, however, presents a pure question of law, and therefore “invokes a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” Id., 263; State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 718, 546 A.2d 830 (1988). Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny, as in this case, the agency is not entitled to special deference. Lieberman v. State Board of Labor Relations, supra; Connecticut Light & Power Co. v. Department of Public Utility Control, 210 Conn. 349, 357, 554 A.2d 1089 (1989).

Section 5-202 is part of the State Personnel Act (personnel act), codified in General Statutes §§ 5-193 through 5-269. “We are obligated ... to read statutes together when they relate to the same subject matter.” Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990). This is because of the presumption that the legislature intended to create a harmonious body of law. Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984). We are therefore directed to General Statutes (Rev. to 1989) § 5-227, also found within the personnel act, which provides in relevant part: “No person in the classified service or seeking admission thereto may be appointed, demoted or dismissed or be in any way favored or discriminated against because of his political opinions or affiliations or as the result of a discriminatory employment practice as defined in section 4-6a-51.” (Emphasis added.) Section 5-227 is not expressly set out as a definition for “discrimination,” and the venerable policy expressed in § 5-227 predates the creation of the review board by at least thirty-two years. Nevertheless, this court presumes that a law was enacted in view of existing relevant statutes and that the legislature intended them to be read together so as to constitute one consistent body of law. Shortt v. New Milford Police Department, 212 Conn. 294, 302, 562 A.2d 7 (1989). This principle is particularly applicable in this case since General Statutes § 5-194 of the personnel act states in relevant part: “This chapter shall be so construed and administered as to provide a uniform and equitable system of personnel administration of employees in the state service. ...” (Emphasis added.)

The language of §§ 5-202 and 5-227, read together, indicate that § 5-202 was intended to establish jurisdiction in the review board for the types of discrimination that had earlier been set out in § 5-227. Under § 5-227, managerial employees may seek relief from the review board for claims of discrimination solely on the bases of political considerations or the forbidden grounds of a “discriminatory employment practice” as defined in General Statutes (Rev. to 1989) § 46a-51. “Discriminatory employment practice” is defined in § 46a-51 (7), and pertains to certain types of employment discrimination. Section 46a-51 (7) does not prohibit discrimination between managerial employees and employees covered by a collective bargaining contract. We conclude, therefore, that the review board’s authority to redress discrimination does not extend to a claim based upon differences between compensation of managerial employees and collective bargaining employees that resulted from the arbitral process.

Our conclusion is bolstered by an examination of the purposes underlying the statutory scheme of the personnel act. Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993). The purposes of that act and its statutory predecessors are to establish a system of public employment based on merit principles, eliminate political patronage, personal favoritism and discrimination against disfavored political and religious factions, and thereby prevent governmental corruption. Engle v. Personnel Appeal Board, 175 Conn. 127, 131, 135, 394 A.2d 731 (1978); Wagner v. Connecticut Personnel Appeal Board, 170 Conn. 668, 671, 368 A.2d 20 (1976).

The statutory predecessors to the personnel act attempted to further the same policy of merit based employment, and also sought to combat the same evils of political patronage and religious discrimination. See, e.g., General Statutes (1930 Rev.) § 2047 (a predecessor to § 5-227, barring employment examination questions relating to political and religious opinions and affiliations). This court, in addressing a municipal civil service ordinance, described the background of these statutes as follows: “Soon after the formation of political parties in this country, the maxim ‘[t]o the victor belong the spoils’ became current and its wide application gave birth to the so-called ‘spoils system.’ This in turn resulted in political scandals which have rocked the nation to its foundation. In an attempt to remedy this condition, various forms of merit systems have been adopted aimed to obtain qualified appointees and to ensure them a tenure of office free from interference on political or religious grounds.” State ex rel. McNamara v. Civil Service Commission, 128 Conn. 585, 588, 24 A.2d 846 (1942). Subsequent cases have made clear that these purposes undergird the personnel act. For example, in Engle v. Personnel Appeal Board, supra, 135, this court stated that the intent of the personnel act was in part to “eliminate as far as practicable the element of partisanship and personal favoritism in making appointments.” (Internal quotation marks omitted.) See also Wagner v. Connecticut Personnel Appeal Board, supra, 674 (personnel act affords state employees “ample and laudable protection against the evils of preference” [internal quotation marks omitted]). On the basis of this history, it stands to reason that the meaning of the term “discrimination” in the review board jurisdictional statute, § 5-202 (a), is limited by the types of discrimination prohibited in § 5-227.

Finally, a review of the legislative history of the personnel act, and our examination of the relationship between that act and the state employee collective bargaining law; General Statutes §§ 5-270 through 5-280; also leads us to reject the view that the review board has the authority to compare the compensation of managerial employees and collective bargaining employees and remedy a perceived unfair differential. Before 1979, the review board’s jurisdiction, as set out by § 5-202 (a), included grievances complaining of “alleged discrimination” and “unfair treatment.” The provision was amended in 1979 by No. 79-621 of the 1979 Public Acts, however, and while “alleged discrimination” was left in, “unfair treatment” was eliminated as a ground for agency jurisdiction. The 1979 amendment also amended § 5-200 (r) by vesting in the commissioner of administrative services discretionary authority to compensate managerial employees with employment benefits that are equal to those of collective bargaining employees. These amendments were part of a comprehensive overhaul of the personnel act. It is clear from the legislative history that the 1979 amendments were intended, inter alia, to harmonize the personnel act and the public employee collective bargaining law. The two statutes together create a scheme under which the compensation of collective bargaining employees is to be determined by the bargaining and arbitral process, and jurisdiction over questions of unfair treatment of managerial employees is transferred from the review board to the commissioner of administrative services. It is the commissioner, not the review board, that has the discretionary authority to compare and equalize the compensation of collective bargaining and managerial employees.

Moreover, we have upheld different treatment of managerial and unionized employees with respect to collective bargaining rights. State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 529 A.2d 1276 (1987). In O’Neill, we reasoned that managers have the responsibility to decide major personnel decisions and formulate agency policies, and therefore managers are differently situated than nonmanagerial employees and supervisors. These responsibilities give managers prestige, autonomy and managerial authority that is not enjoyed by other employees. On the other hand, because managers administer collective bargaining agreements; id., 759; they have no bargaining or organizational rights.

We conclude that disparate treatment of managerial employees and employees subject to collective bargaining is not a form of discrimination within the review board’s jurisdiction under § 5-202 (a).

The judgment is affirmed.

In this opinion the other justices concurred.

       Although the employees’ review board is the named defendant in this appeal, it has not submitted a brief or otherwise actively participated.

       The plaintiffs are the state department of administrative services, the state of Connecticut, and the state of Connecticut department of mental health.

       The rent increases for Devarajan were phased in as follows. In 1987 the rent was $51 every two weeks; the rent was subsequently increased to $173 in 1988, to $288 in 1989, and then to $402 in 1990 respectively. The rent for Sonido’s housing in 1987 was $77; rent was subsequently increased to $216 in 1988, to $366 in 1989, and then to $515 in 1990 respectively.

       The commissioner of administrative services has the authority to modify unilaterally the benefits and compensation of state employees. General Statutes (Rev. to 1989) § 5-200 (i), (q) and (r), recodified as § 5-200 (k), (o) and (p) respectively. This authority is limited, however, by the state employee collective bargaining law. General Statutes §§ 5-270 through 5-280. Under this law, the state has the duty to bargain with state employees who are represented by an employee organization over questions of “wages, hours and other conditions of employment.” General Statutes § 5-272 (c). The result of the duty to bargain in this context is that the state may not unilaterally alter the compensation or employment benefits of union represented employees without first bargaining to impasse. General Statutes §§ 5-272 (a) (4) and (c), 5-276a (c); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 120-21, 584 A.2d 1172 (1991). Managerial employees, however, have no collective bargaining rights; General Statutes § 5-270 (b); and their compensation may be modified unilaterally without prior bargaining.

       As an example, the review board noted that one grade 4 psychiatrist lived in an identical residence, in the same duplex, as Devarajan but because he was a supervisor, rather than a manager like Devarajan, he enjoyed union representation and received the smaller rent increase.

       The relevant subsections of General Statutes (Rev. to 1989) § 5-202 read as follows: “(a) Any employee who is not included in any collective bargaining unit of state employees and who has achieved a permanent appointment as defined in subsection (r) of section 5-196 may appeal to the employees’ review board if he or she receives an unsatisfactory performance evaluation or is demoted, suspended or dismissed, or is aggrieved as a result of alleged discrimination, or unsafe or unhealthy working conditions or violations involving the interpretation and application of a specific state personnel statute or regulation. Such employee must have complied with preliminary review procedures, except as otherwise provided in subsection (k) of this section. Such an appeal shall be submitted to the board within ten days of the completion of the final level of the preliminary review procedure, provided the first level of the procedure shall have been initiated no later than thirty calendar days from the date of the alleged violation, except that in cases of dismissal, demotion or suspension the grievance must be submitted directly to the third level of the procedure within twenty-one calendar days of the effective date of such action.
      “(b) Upon receiving an appeal, the board shall assign a time and place for a hearing and shall give notice thereof to the parties concerned. The hearing panel shall not be bound by technical rules of evidence prevailing in the courts. If, after hearing, a majority of the hearing panel determines that the action appealed from was arbitrary or taken without reasonable cause, the appeal shall be sustained; otherwise, the appeal shall be denied. The hearing panel shall have the power to direct appropriate remedial action and shall do so after taking into consideration just and equitable relief to the employee and the best interests and effectiveness of the state service. The hearing panel shall render a decision within sixty calendar days from the date of the conclusion of the hearing. . . .
      “(f) All matters involving examination, including application rejection, type of examination or results, compensation for class or classes or duties, establishment of a new class or classes, compliance with health and safety standards and the Connecticut Occupational Safety and Health Act or alleged discrimination in cases where an appeal has been filed with the human rights commission, shall not be appealable under this section.
      “(g) The first level of the preliminary review procedure preparatory to the filing of an appeal from an alleged grievable action other than dismissal, demotion or suspension shall be the aggrieved employee’s supervisor or department chief or other employee as designated by the employee’s appointing authority. Such aggrieved employee shall present his grievance in writing on a form developed by the commissioner of administrative services and the employee review board which form shall contain a statement of the date the alleged violation occurred and the relief sought in answer to the grievance. The first level designee shall give his answer to such employee within seven calendar days from the date the grievance is submitted to him or within seven days from the date of a meeting convened for the purpose of reviewing the grievance, in which case such meeting shall be convened within seven calendar days from the date the grievance is submitted.
      “(h) The second level of the preliminary review procedure preparatory to the filing of an appeal from an alleged grievable action other than dismissal, demotion or suspension shall be the aggrieved employee’s appointing authority or designated representative. Such employee, upon receiving a response at the first level which he deems to be unsatisfactory, may proceed to this level by presenting the same form containing the first level answers within seven calendar days from the date the answer was given at the first level. The appointing authority or designated representative shall answer such employee within seven calendar days from the date the grievance is received or within seven calendar days from the date of a meeting convened for the purpose of reviewing such grievance, in which case such meeting shall be convened within seven calendar days from the date such grievance is received.
      “(i) The third level of the preliminary review procedure preparatory to the filing of an appeal from an alleged grievable action including dismissal, demotion or suspension shall be the commissioner of administrative services or his designated representative. The employee, upon receiving a response at the second level which he deems to be unsatisfactory, may proceed to this level by presenting the same form containing the first and second level answers within seven calendar days from the date the answer was given at the second level, except in the case of a dismissal, demotion or suspension in which case such employee must present the form, completed but without answers at lower levels within twenty-one calendar days of the effective date of such action. The commissioner of administrative services or his designated representative shall reply to such employee within thirty calendar days from the date such grievance is received or within fifteen calendar days from the date of a meeting convened for the purpose of reviewing such grievance, in which case such meeting shall be convened within thirty calendar days from the date such grievance is received. . . .
      “(l) Either the state or any employee aggrieved by a decision of the employees’ review board may appeal therefrom in accordance with section 4-183. Any employee who prevails in a decision of the employees’ review board shall be entitled to recover court costs and reasonable attorney’s fees if such decision is appealed by the state and affirmed by the court in such appeal.”

       See footnote 6 for the text of General Statutes (Rev. to 1989) § 5-202 (g), (h), and (i).

       See footnote 6 for the text of General Statutes (Rev. to 1989) § 5-202 (l). General Statutes § 4-183 (a), a section of the Uniform Administrative Procedure Act, states in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section.”

       The trial court also held that the defendants’ claims involved “compensation for duties” and therefore were not within the jurisdiction of the review board. General Statutes (Rev. to 1989) § 5-202 (i); see footnote 6. Section 5-202 (i) specifically excludes grievances involving “compensation for duties” from the jurisdiction of the review board. Because we determine that the term “discrimination” in § 5-202 (a) does not include disparate treatment between managerial employees and collective bargaining employees, we do not reach the issue of application of the phrase “compensation for duties” in § 5-202 (f).

       General Statutes (Rev. to 1989) § 5-227 provides: “No person in the classified service or seeking admission thereto may be appointed, demoted or dismissed or be in any way favored or discriminated against because of his political opinions or affiliations or as the result of a discriminatory employment practice as deilned in section 46a-51. No question in any examination or contained on any form used in connection with carrying out the provisions of this chapter may relate to political or religious opinions or affiliations of any competitor, prospective competitor or eligible person on any employment or reemployment list established and maintained by the commissioner of administrative services.”

       See Public Acts 1911, chapter 206, § 7 (act authorized adoption of a civil service system based on merit, and barred use of examination questions which “relate to political or religious opinions or affiliations”). The personnel appeal board was first created as a three member body in 1943. General Statutes (Cum. Sup. 1943) § 417g. It was reconstituted as the employees’ review board in 1979, with a modification of its jurisdiction discussed later in this opinion. Public Acts 1979, No. 79-621.

         General Statutes (Rev. to 1989) § 46a-51 (7) provides: “ ‘Discriminatory employment practice’ means any discriminatory practice specified in section 46a-60.” General Statutes § 46a-60 sets out a number of unlawful employment practices, such as discrimination on the basis of age. Section 46a-51 (7) has been amended so that it now also references discriminatory practices specified in General Statutes § 46a-81c. Section 46a-81c bars discrimination on the basis of sexual orientation.

       General Statutes (Rev. to 1989) § 5-200 (r), recodified as § 5-200 (p), states in pertinent part: “When such authority is not otherwise conferred by statute, the commissioner may issue orders to provide that (1) executive or judicial branch employees . . . not included in any prevailing bargaining unit contract ... be granted rights and benefits not less than those granted to employees . . . covered under such contracts . . . .”

       See 22 S. Proc., Pt. 16, 1979 Sess., p. 5329, remarks of Senator Richard F. Sehneller (“the purpose of the bill is to change certain aspects of the state personnel policy and procedures and to make them consistent with the executive reorganization and with collective bargaining statutes”); 22 H.R. Proc., Pt. 31, 1979 Sess., pp. 10979-80, remarks of Representative Gardner Wright, Jr. (“the bill . . . sets up a lot, makes a number of changes to change the personnel administration to agree with both collective bargaining and the reorganization that occurred two years ago”). We note that the legislative history is silent on the specific issue of why “unfair treatment” was removed from General Statutes § 5-202 (a).