author: Callahan, J.

text:
    City of New Haven et al. v. Freedom of Information Commission et al.
    (13144) (13145)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued November 13, 1987
    decision released January 12, 1988

      Marianne D. Smith, assistant general counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Richard F. Orr, with whom, on the brief, was Ben A. Solnit, for the appellant (defendant Susan M. Stone).

      MartinS. Echter, deputy corporation counsel, for the appellees (plaintiffs).
   Callahan, J.

These are consolidated appeals by the defendants, the freedom of information commission (hereinafter commission) and Susan Stone, from a judgment of the Superior Court, Schaller, J., that reversed, in part, the final order of the commission. The final order required the city of New Haven to provide Susan Stone “with copies of invoices for services rendered by the law firm of Beveridge and Diamond and by any other law firm or attorney retained for the purpose of litigating claims pertaining to the East Shore waste-water treatment plant.” The two issues raised in these appeals are (1) whether the trial court exceeded the permissible scope of judicial review of the final order of the commission, and, if not, (2) whether invoices that bear only the name of the firm and the amount billed from law firms that rendered legal services to the city of New Haven in connection with the East Shore waste-water treatment plant are exempt from disclosure under Connecticut’s Freedom of Information Act as “records pertaining to strategy and negotiations” under General Statutes § 1-19 (b) (4).

The underlying facts are not in dispute. In the mid-1970s the named plaintiff, the city of New Haven, entered into a series of contracts for the construction of the East Shore wastewater treatment plant. When the construction of the plant had been substantially completed in 1982, the city took possession of it and began operations. The plant did not function properly and shortly thereafter the city entered into a series of arbitrations with the general contractor. Upon the unfavorable termination of the arbitration proceedings, the city brought separate federal actions against Camp, Dresser and McKee, Inc., the consulting engineer of the project, and Zimpro, Inc., a chief supplier of component parts.

In February, 1986, Stone sent a letter to the public information/public advocacy office of the city and town of New Haven, and in accordance with General Statutes § 1-19 (a) requested the following: “As the result of constructing the East Shore sewage treatment plant, the City of New Haven has been, and continues to be, involved in legal proceedings relating to the construction of that facility. I hereby request that you provide copies of all invoices from any attorney or law firm retained or consulted by the city in conjunction with any legal proceeding, whether an arbitration or litigation, connected with the construction of that facility. This request includes, but is not limited to, invoices from the law firm of Beveridge and Diamond.” The letter went on specifically to limit the information requested to only the name of the attorney or law firm submitting the invoice, and the total amount of the invoice. The city did not respond to Stone’s letter, whereupon she filed a letter of complaint with the commission pursuant to General Statutes § l-21i (b). At the time Stone sent the letter of request to the city, she was employed as an associate with the law firm which has been representing Zimpro, Inc., in the federal actions filed by the city and which represents her in connection with the present appeal.

At the administrative hearing conducted by Commissioner E. Bartlett Barnes as the hearing officer, the city argued that the information was exempt from disclosure as: (1) attorney-client communications within General Statutes § 1-19 (b) (10); (2) attorney work product; and (3) records pertaining to strategy and negotiations with respect to pending claims and litigation under General Statutes § 1-19 (b) (4). Barnes rejected all of the city’s arguments and in a proposed written decision he found that the city had violated General Statutes §§ 1-15 and 1-19 (a) by refusing to disclose the invoices. The freedom of information commission adopted Barnes’ findings and conclusions and issued a “Notice of Final Decision” that ordered the city to provide Stone with the requested information from the invoices.

The city and the public information/public advocacy office of the city and town of New Haven took timely appeals from the final order of the commission pursuant to General Statutes §§ l-21i (d) and 4-183 (a). The trial court, Schaller, J., held that, while the requested invoices are not exempt from disclosure as attorney-client communications or attorney work product, they are exempt from disclosure as “records pertaining to strategy and negotiations” under General Statutes § 1-19 (b) (4). The trial court found: “The plaintiff[s] [are] correct in stating that access to the requested information would allow [the city’s] adversaries to ‘balance the amounts spent, the rate of expenditure and the course and posture of litigation proceedings against the amount of exposure in damages supported by the evidence revealed in discovery.’ This process would result in a ‘highly informed judgment about the negotiating posture and strategy of the City.’ That type of advantage is what the exemption under section 1-19 (b) (4) was designed to prevent.” The trial court also balanced the public’s interest in its right to know against the need for confidentiality during the pendency of litigation and held that “the public interest is best served by preventing the public’s legal adversaries from obtaining an advantage in the ongoing litigations.” Accordingly, the trial court sustained the plaintiffs’ appeals and reversed the final decision of the commission.

The appeals of the commission and Stone from the decision of the trial court were transferred to this court pursuant to Practice Book § 4023. The defendants argue that the trial court erred in reversing the final decision of the commission because it (1) exceeded the permissible scope of judicial review and (2) expanded the narrow scope of the exemption under § 1-19 (b) (4) by holding that the invoices requested pertained to strategy and negotiations. We find error.

The defendants first argue that the trial court exceeded the scope of judicial review as set forth in General Statutes § 4-183. Specifically, they argue that the commission’s decision was supported by substantial and competent evidence on the record as a whole, and thus, the trial court impermissibly substituted its judgment for that of the commission as to a question of fact. The city, however, argues that the trial court properly concluded that the commission’s decision was affected by an error in statutory interpretation which is a question of law and a matter for the courts.

“ ‘Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. Lawrence v. Kozlowski, 171 Conn. 705, [707-708,] 372 A.2d 110 (1976) [cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]. Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant.’ C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4-183 (g). ‘The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.’ Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981); Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 441, 423 A.2d 87 (1979); see also Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983).” Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986).

In reversing the final decision of the commission, the trial court found that the decision was affected by an error of law in that the commission misinterpreted § 1-19 (b) (4). Ordinarily, the construction and interpretation of a statute is a question of law for the courts where the administrative decision is not entitled to special deference, particularly where, as here, the statute has not previously been subjected to judicial scrutiny or time-tested agency interpretations. Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 599, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987); see also Board of Education v. Board of Labor Relations, 201 Conn. 685, 698-99, 519 A.2d 41 (1986); Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). Nevertheless, “ ‘[¡Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.’ ” (Emphasis added.) Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); Burnham v. Administrator, supra, 322. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. Finkenstein v. Administrator, 192 Conn. 104,112-13, 470 A.2d 1196 (1984); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5, 434 A.2d 293 (1980).

While the trial court here properly balanced the competing interests as intended by the legislature when applying the exemption under § 1-19 (b) (4), the trial court improperly substituted its own conclusion for the commission’s by applying the law to facts not reasonably supported by the record. The limited record before the trial court consisted of the following: (a) the eight page transcript of the administrative hearing before the hearing officer; (b) the three trial briefs of the parties; (c) the exhibits before the hearing officer; and (d) the oral arguments of counsel. This record fails to contain any evidence from which one could reasonably conclude that the invoices in question pertained to or, as “pertain” is defined in Webster’s Third New International Dictionary, had any “connection with or relation to” either strategy or negotiations in the pending lawsuits. The only references to such a connection were made by the plaintiffs’ attorney in arguments before the hearing officer, in their trial and appellate briefs, and before the trial court and this court at oral arguments. Arguments, however, are not evidence upon which findings can be based.

The city argues: “Strong evidence that the information requested has potential value to Zimpro ... in countering the City’s strategy and negotiations is the very fact that the request comes from the attorneys representing Zimpro.” We are unpersuaded. It is undisputed that Stone has been a member of the law firm representing Zimpro, Inc., in the city’s suit against Zimpro, Inc. While this fact raises questions and eyebrows regarding the motives behind Stone’s request for the invoices, we do not find it, in and of itself, to be sufficient evidence to demonstrate that the requested invoices in fact “pertain to” strategy and negotiations in the pending litigations. To draw a conclusion either way from this single fact would be nothing more than speculation and conjecture.

We note that the general rule under the Freedom of Information Act is disclosure with the exceptions to this rule being narrowly construed. The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183,188, 470 A.2d 1209 (1984); Wilson v. Freedom of Information Commission, 328-29, 341; see also State v. Januszewski, 182 Conn. 142, 170-71, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested. See Wilson v. Freedom of Information Commission, supra, 341; New Haven v. Freedom of Information Commission, 4 Conn. App. 216, 219-21, 493 A.2d 283 (1985); see also Lykins v. United States Department of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984), on remand sub nom. Lykins v. Assistant Attorney General Rose, 608 F. Sup. 693 (D.D.C. 1984); Yeager v. Drug Enforcement Administration, 678 F.2d 315, 320 (D.C. Cir. 1982); Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980); Church of Scientology v. United States Department of Defense, 611 F.2d 738, 742 (9th Cir. 1980); Mead Data Central, Inc. v. United States Department of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

It is clear from the trial court’s memorandum of decision that its conclusion that the invoices in question pertained to strategy and negotiations was founded primarily upon the arguments of the plaintiffs’ counsel set forth in the plaintiffs’ pretrial brief. As previously stated, unsupported conclusory allegations of counsel are not evidence and are insufficent for the application of an exemption from disclosure. Neither the administrative record nor the record on appeal before this court contains any evidence, either by way of expert testimony, testimony of a city representative, a relatively specific affidavit, a transcript of deposition testimony, or precedent, to support the court’s conclusion that the invoices in question pertain to strategy and negotiations in the pending litigations. The transcript before the hearing officer consists of eight pages of arguments and dialogue between the hearing officer and the attorneys for the parties. No testimony was taken nor were any exhibits presented that provided a premise for a correlation between the invoices and strategy and negotiations.

Under these circumstances, therefore, the trial court impermissibly substituted its judgment for that of the commission without a factual basis for doing so. Accordingly, we hold that the trial court erred in applying its interpretation of § 1-19 (b) (4) to thwart disclosure when there were no facts in the record to support such an application of the statute.

We note that our decision does not reach the substantive merits of the plaintiffs’ exemption claim under § 1-19 (b) (4). We need not, nor can we decide, on the basis of the state of the record before this court, whether invoices for legal services that bear only the name of the attorney or law firm and the amount of the billing might, under other circumstances, pertain to strategy and negotiations in pending litigation. While the commission may have erroneously reasoned that such invoices never pertain to strategy and negotiations, it correctly concluded that the city failed to demonstrate that the requested records are exempt from disclosure under any state or federal statute. Where, as here, one of the stated reasons is sufficient to support the action of the commission, then that action should be sustained by the court. See Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983); Goldberg v. Zoning Commission, 173 Conn. 23, 25, 376 A.2d 385 (1977). Accordingly, we hold that the commission’s order of disclosure was proper because the city failed to establish on the record that the requested information falls within any exemption under the Freedom of Information Act. See Hartford v. Freedom of Information Commission, supra, 435.

There is error, the judgment is set aside and the case is remanded with direction that judgment be rendered dismissing the plaintiffs’ appeals.

In this opinion the other justices concurred.

       General Statutes § 1-19 (a) provides in pertinent part: “access to public records, exempt records, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. . . .”

       General Statutes § 1-21Í (b) provides in pertinent part: “DENIAL op ACCESS TO PUBLIC RECORDS OR MEETINGS. APPEALS. NOTICE. ORDERS. CIVIL PENALTY. SERVICE OF PROCESS UPON COMMISSION. FRIVOLOUS APPEALS. . . .

        “(b) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. . . .”

       General Statutes § 1-19 (b) (10) provides: “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (10) records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship.”

       General Statutes § 1-19 (b) (4) provides: “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (4) records pertaining to strategy and negotiations with respect to pending claims and litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.”

       General Statutes § 1-15 provides in pertinent part: “application for COPIES OF PUBLIC RECORDS. CERTIFIED COPIES. FEES. Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .”

       General Statutes § 1 -21i (d) provides: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. Notwithstanding the provisions of section 3-125, legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation affecting said commission. Notwithstanding the provisions of subsection (b) of section 4-183 and section 52-64, all process shall be served upon said commission at its office. Any appeal taken pursuant to this section shall be privileged in respect to its assignment for trial over all other actions except writs of habeas corpus and actions brought by or on behalf of the state, including informations on the relation of private individuals. Nothing in this section shall deprive any party of any rights he may have had at common law prior to January 1, 1958. If the court finds that any appeal taken pursuant to this section or section 4-183 is frivolous or taken solely for the purpose of delay, it shall order the party responsible therefor to pay to the party injured by such frivolous or dilatory appeal costs or attorney’s fees of not more than one thousand dollars. Such order shall be in addition to any other remedy or disciplinary action required or permitted by statute or by rules of court.”

       General Statutes § 4-183 (a) provides: “appeal to superior court. (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

       It is appropriate to look to federal case law interpreting the federal Freedom of Information Act; 5 U.S.C. § 552 et seq.; for guidance because the purposes of the federal act and of Connecticut’s act are virtually identical. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553, 436 A.2d 266 (1980), and authorities cited therein.

       The following is a list of exhibits submitted at the administrative hearing, none of which is relevant to the substantive merits of the claimed exemption under General Statutes § 1-19 (b) (4):
      “Plaintiffs Exhibit A: Complaint letter dated February 18, 1986, from Susan M. Stone to Chairwoman Judith A. Lahey.
      “Plaintiff’s Exhibit B: Letter dated February 24, 1986, from Marianne D. Smith, Commission Counsel, to Susan M. Stone.
      “Plaintiff’s Exhibit C: Letter dated February 27, 1986, from Susan M. Stone to Marianne D. Smith.
      “Plaintiff’s Exhibit D: Letter dated February 10, 1986, from Susan M. Stone to William O’Sullivan.
      “Respondent's Exhibit 1: Complaint dated June 1, 1984, from Louis R. Pepe to the United States District Court for the District of Connecticut.”


source: Caselaw Access Project

license: Public Domain

text:
    Estate of George Zarrella v. Roger Pell
    Decided July 30, 1987
   The order of July 23, 1987, granting the plaintiffs petition for certification, 204 Conn. 811, is vacated and the petition is dismissed without prejudice.


text:
    Daniel Bombero et al. v. Irene Marchionne
    Decided July 30, 1987

      Bruce L. Levin, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 11 Conn. App. 485, is denied.


text:
    State of Connecticut v. Silas Harris
    Decided July 30, 1987

      Joette Katz, public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 397, is denied.


text:
    Malcolm T. Arenburg, Jr. v. Farmholme, Inc., et al.
    Decided July 30, 1987

      Richard H. Kosinski, in support of the petition.

      Raphael Korff, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 810, is denied.


text:
    State of Connecticut v. Carl Steve
    Decided September 23, 1987

      Peter D. Markle, assistant state’s attorney, in support of the petition.

      Louis S. Avitabile, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 699, is granted, with limitation.


text:
    State of Connecticut v. Carlton Woodard
    Decided September 23, 1987

      John W. Watson, assistant public defender, in support of the petition.

      Julia DiCocco Dewey, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 499, is denied.


text:
    Ruth E. Glendenning et al. v. Conservation Commission of the Town of Fairfield et al.
    Decided September 23, 1987

      Albert L. Harlow, in support of the petition.

      Allan R. Johnson and Linda M. Guliuzza, in opposition.
   The defendant Christian J. Trefz’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 47, is dismissed.


text:
    Ernest C. DeLucia v. J. William Burns, Commissioner of Transportation
    Decided September 23, 1987

      Benson A. Snaider, in support of the petition.

      Michael J. Lombardo, assistant attorney general, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 11 Conn. App. 439, is denied.


text:
    Clark-Franklin-Kingston Press, Inc. v. Thomas A. Romano et al.
    Decided September 23, 1987

      John S. Pinney, in support of the petition.

      Thomas R. Legenhausen, Robert W. Allen and John J. Resnick, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 121, is denied.


text:
    Housing Services Corporation, Inc. v. Nick Mathis
    Decided September 23, 1987

      Bessye W. Bennett, in support of the petition.

      Elliot J. Lane, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Planning and Zoning Commission of the Town of Lebanon v. William Craft et al.
    Decided September 23, 1987

      Mary E. Holzworth, in support of the petition.

      John L. Stawicki, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 12 Conn. App. 90, is denied.


text:
    State of Connecticut v. Jo Ann Bettini
    Decided September 23, 1987

      Joseph F. Keefe, in support of the petition.

      James G. Clark, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 684, is denied.


text:
    State of Connecticut v. Angel Castillo
    Decided September 23, 1987

      Martin Zeldis, assistant public defender, and Joette Katz, public defender, in support of the petition.

      Michael E. O’Hare, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 621, is denied.


text:
    State of Connecticut v. Cornelius Greene
    Decided September 23, 1987

      Martin Zeldis, assistant public defender, and Joette Katz, public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 575, is denied.


text:
    State of Connecticut v. Robert Lewis Hyde
    Decided September 23, 1987

      Robert Lewis Hyde, pro se, in support of the petition.

      SusannE. Gill, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellete Court, 11 Conn. App. 809, is denied.


text:
    Brian J. Foley v. Southport Manor Convalescent Center, Inc., et al.
    Decided September 23, 1987

      Louis R. Pepe, in support of the petition.

      Dwight F. Fanton, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 530, is denied.


text:
    Albert Nesbitt v. Mildred E. Mulligan, Administratrix (Estate of George C. Mulligan), et al.
    Decided September 23, 1987

      John W. Sitarz, in support of the petition.

      Paul J. McQuillan, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 11 Conn. App. 348, is denied.


text:
    Susan Ferrucci v. Frank Ferrucci
    Decided September 23, 1987

      Wesley W. Horton, in support of the petition.

      Susan W. Wolfson, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 369, is denied.


text:
    Peter Luzzi v. Ronald Cassidento et al.
    Decided September 23, 1987

      Marc M. Schindelman, in support of the petition.

      Aaron P. Slitt, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 806, is dismissed.


text:
    State of Connecticut v. David M. McKenna
    Decided September 23, 1987

      Richard Emanuel, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 122, is denied.


text:
    State of Connecticut v. Peter J. Butler
    Decided September 23, 1987

      Frederick W. Fawcett, assistant state’s attorney, in support of the petition.

      Timothy H. Everett, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 673, is denied.


text:
    State of Connecticut v. Roland Boucher
    Decided September 23, 1987

      Judith Rossi, deputy assistant state’s attorney, in support of the petition.
   The state’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 644, is granted, with limitation.


text:
    Cherie Paranteau et al. v. Frederick Devita
    Decided September 23, 1987

      Thomas F. Brown, in support of the petition.

      P. J. Pittman, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is granted, with limitation.


text:
    State of Connecticut v. Edward L. Reagan
    Decided September 23, 1987

      John E. Franckling, in support of the petition.

      CarolynK. Longstreth, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 540, is granted, with limitation.


text:
    Boris Silitschanu et al. v. Frederick Groesbeck, Jr.
    Decided September 23, 1987

      John Timbers, in support of the petition.

      James E. O’Donnell, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 12 Conn. App. 57, is granted, with limitation.


text:
    State of Connecticut v. Gary L. Hanson
    Decided September 23, 1987

      Vincent J. Giedraitis, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 32, is granted, with limitation.


text:
    Hans Lundgren v. Town of Stratford
    Decided October 9, 1987

      Anthony M. Guerrera, in support of the petition.

      Gerald F. Stevens, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 138, is denied.


text:
    State of Connecticut v. Nelson E. McIntosh
    Decided October 9, 1987

      Robert P. Hanahan, special assistant state’s attorney, in support of the petition.
   The state’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 179, is denied.


text:
    Richard O’Bymachow v. Debra Lee O’Bymachow
    Decided October 9, 1987

      Michael J. McClary, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 113, is denied.


text:
    State of Connecticut v. Herman Napoleon
    Decided October 9, 1987

      Peter A. Kelly, in support of the petition.

      Geoffrey Marion, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 274, is denied.


text:
    State of Connecticut v. Emil J. Carsetti, Jr.
    Decided October 9, 1987

      Conrad Ost Seifert, in support of the petition.

      Lawrence J. Tytla, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 375, is denied.


text:
    State of Connecticut v. George Mention
    Decided October 9, 1987

      Mark Rademacher, in support of the petition.

      Geoffrey Marion, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 258, is denied.


text:
    State of Connecticut v. Earle Allen, Jr.
    Decided October 9, 1987

      Donald D. Dakers, public defender, in support of the petition.

      Michael E. O’Hare, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 403, is denied.


text:
    State of Connecticut v. Heriberto Coriano
    Decided October 9, 1987

      Elsa Calderon, assistant public defender, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 196, is denied.


text:
    State of Connecticut v. Jonathan Bradley
    Decided October 9, 1987

      Kent Drager, assistant public defender, in support of the petition.

      Julia DiCocco Dewey, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 163, is denied.


text:
    Robert G. Reed v. Planning and Zoning Commission of the Town of Chester
    Decided October 9, 1987

      Thomas P. Byrne, in support of the petition.

      Peter M. Sipples, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 153, is granted, with limitation.


text:
    Paul G. Iasiello v. John R. Manson, Commissioner of Correction
    Decided October 21, 1987

      Hubert J. Santos, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 268, is denied.


text:
    State of Connecticut v. Otis Baskins
    Decided October 21, 1987

      Earl I. Williams, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 313, is denied.


text:
    State of Connecticut v. Richard A. Siller
    Decided October 21, 1987

      James M. Connolly, in support of the petition.

      Carolyn K. Longstreth, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 395, is denied.


text:
    State of Connecticut v. Alvin L. Merritt
    Decided October 21, 1987

      Carl D. Eisenman, public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 628, is denied.


text:
    Victor R. Dydyn et al. v. Department of Liquor Control
    Decided October 21, 1987

      Leslie Byelas, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 12 Conn. App. 455, is denied.


text:
    Armando Valeriano v. George D. Bronson, Warden
    Decided October 21, 1987

      Patrice S. Noah, in support of the petition.

      Steven M. Sellers, assistant state’s attorney, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 385, is granted, with limitation.


text:
    State of Connecticut v. John Trujillo
    Decided October 21, 1987

      James G. Clark, assistant state’s attorney, in support of the petition.

      Richard Emanuel, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 320, is denied.


text:
    State of Connecticut v. Robert Foshay
    Decided October 21, 1987

      John W. Watson, assistant public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 1, is granted, with limitation.


text:
    State of Connecticut v. Mary Diorio
    Decided October 21, 1987

      Richard Emanuel, in support of the petition.

      James A. Killen, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 74, is denied.


text:
    Margaret Malmberg, Administratrix (Estate of Scott C. Malmberg) v. Ann Marie Lopez
    Decided October 21, 1987

      Paul E. Pollock, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 438, is granted, with limitation.


text:
    Goon Git Lee et al. v. Irvin Chipperini et al.
    Decided October 28, 1987

      Thomas G. Moukawsher, in support of the petition.

      Sidney Axelrod, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 12 Conn. App. 802, is denied.


text:
    Stanley V. Tucker v. Connecticut Natural Gas Co.
    Decided October 28, 1987

      Stanley V. Tucker, pro se, in support of the petition.

      Patrick T. Hulton, in opposition.
   The plaintiff's petition for certification for appeal from the Appellate Court is denied.


text:
    The Metropolitan District v. Housing Authority of the City of Hartford
    Decided November 5, 1987

      Rudolph P. Arnold, in support of the petition.

      David G. Hetzel, in opposition.
   The respondent’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 499, is denied.


text:
    State of Connecticut v. Frank X. Lo Sacco
    Decided November 5, 1987

      Frank X. Lo Sacco, pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 481, is denied.


author: Covello, J.

text:
    Middlesex Memorial Hospital v. Town of North Haven
    (13097)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued November 13, 1987
    decision released January 19, 1988

      Judith A. Ravel, for the appellant (defendant).

      F. Jerome O’Malley, with whom were Thomas J. Riley and, on the brief, Robert D. Tobin, for the appellee (plaintiff).

      Martin Rosenfeld, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the state as amicus curiae.
   Covello, J.

In this action the plaintiff, Middlesex Memorial Hospital, sought to recover from the defendant, the town of North Haven, reimbursement for medical services rendered to a resident of the town. The issue at trial was whether the resident was a person whom the town was obligated to support in accordance with General Statutes §§ 17-273 and 17-274. The trial court found the defendant town liable for the medical care provided to the resident because the town had failed to prove her ineligible, and rendered judgment for the hospital to recover $7503.51.

On appeal, the town challenges the trial court’s assignment to the town of the burden of proof to establish that a claimant for medical support does not meet the requirements of §§ 17-273 and 17-274. Under such a proposition, failure to meet this burden would render the town liable for support. We conclude, however, that the burden of establishing eligibility lies with the claimant. Accordingly, we find error and direct the trial court to render judgment for the town.

The parties stipulated that on November 19, 1984, Nancy Franco, a resident of North Haven, entered Middlesex Memorial Hospital. The admitting diagnosis was “depression/drug abuse.” Within a twenty-one day period, she incurred charges totaling $7503.51.

On November 28,1984, the hospital submitted to the town an application for town aid which the hospital had prepared and Franco had signed. The application disclosed that Franco was thirty, divorced, living with her parents, unemployed and had no income. It further disclosed, however, that she “was living off [a] settlement,” owned a 1978 Peugeot and a 1974 Chevrolet Nova automobile, had checking and savings accounts totaling “about $200.00” and was the beneficiary of a Blue Cross Comprehensive Health Care Plan. Before signing the application, Franco, “[i]n compliance with section 17-273, 17-274 and 17-278 of Connecticut General Statutes, [certified] that the above financial information [was] a disclosure of [her] financial condition.”

The claimant’s uncertain economic status as depicted in the application never became much clearer. Franco failed to comply with repeated requests by the town to provide adequate financial information nor did she cooperate with the town’s attempts to determine her eligibility. An investigation by the town, however, disclosed that the 1984 North Haven grand list indicated that Franco owned a 1984 Dodge assessed at $6020. The trial court concluded that “it would appear that the plaintiff [hospital] has performed all that it was required to do under the statutes to entitle it to payment from the defendant” and that “[u]nder the present format, the defendant Town had the burden to establish that the patient was not eligible.” The town having failed to do so, the court rendered judgment for the plaintiff. We disagree that the town had such a burden.

General Statutes § 17-273 provides in relevant part that “[e]ach person who has not estate sufficient for his support, and has no relatives of sufficient ability who are obliged by law to support him, shall be provided for and supported at the expense of the town in which he resides .... When such person is in need of hospital . . . care, it shall be similarly provided subject to the provisions of section 17-274.”

General Statutes § 17-274 provides in relevant part that “[e]ach town shall provide medical treatment . . . for all persons . . . unable to pay for the same over a two-year period . . . and each town shall furnish necessary hospitalization.” This enactment further provides that “[t]he ability of a person to pay for medical assistance over a two-year period shall be determined by a town in accordance with regulations adopted by the department of income maintenance. . . .’’ Section 17-274-2 of the Regulations of Connecticut State Agencies sets forth specific acts that will constitute a reasonable effort by the town to determine eligibility.

General Statutes § 17-274 further provides that “[t]owns shall be liable for medical bills only for persons whose eligibility can be determined in accordance with the standards established pursuant to section 17-3a.” (Emphasis added.) Section 17-3a(a) in turn directs the commissioner of income maintenance to adopt regulations “establishing mandatory standards for the granting of . . . medical assistance ... by towns, including standards for investigation and eligibility . . . ."

It is evident that the statutes impose upon the towns not only the obligation to pay for necessary hospital care, but also the duty to carry out the required investigation to determine a claimant’s eligibility. The regulations adopted pursuant to these statutes define the specific acts required of local officials to determine this eligibility. The duty to carry out the required investigation, however, does not shift the legal burden to the municipality to provide hospital care in the event that the required investigation fails to yield sufficient information for determining the applicant’s eligibility.

‘A town is under no common-law obligation for the support of paupers. Its sole liability in this respect is imposed by statute, and it is not liable for a pauper’s support any farther than statute makes it so.’ State v. Bristol, 139 Conn. 469, 471 [95 A.2d 78 (1953)].” University of Connecticut v. Hartford, 33 Conn. Sup. 760, 764, 371 A.2d 611 (1976). “There is no liability for support until all of the statutory prerequisites are satisfied. William W. Backus Hospital, Inc. v. Norwich, 146 Conn. 686, 691 [155 A.2d 916 (1959)].” Id.

Here, § 17-274 provides that “[t]owns shall be liable for medical bills only for persons whose eligibility can be determined in accordance with the [statutory] standards . . . .’’(Emphasis added.) The statutory scheme requires that the town investigate and determine the statutory eligibility of a claimant furnished hospital care. If the person meets the statutory criteria, i.e., insufficient estate, no liable relatives, or inability to pay within two years, the town becomes liable for these services. Nowhere, however, does the language of the statute impose liability upon the town if the necessary eligibility cannot be determined.

There is error, the judgment is set aside and the matter is remanded to the trial court with direction to render judgment for the defendant.

In this opinion the other justices concurred.

       General Statutes § 17-273 provides in relevant part: “liability of town for support, (a) Each person who has not estate sufficient for his support, and has no relatives of sufficient ability who are obliged by law to support him, shall be provided for and supported at the expense of the town in which he resides, except as otherwise provided in this section ....''

       General Statutes § 17-274 provides in part: “medical treatment. (a) Each town shall provide medical treatment by one or more competent physicians for all persons receiving general assistance benefits from such town, or eligible to be supported by such town, or unable to pay for the same over a two-year period . . . .The ability of a person to pay for medical assistance over a two-year period shall be determined by a town in accordance with regulations adopted by the department of income maintenance in accordance with the provisions of chapter 54. Any person receiving medical treatment or hospitalization under this section shall make to the selectmen full disclosure of his financial condition as provided in section 17-278. Towns shall be liable for medical bills only for persons whose eligibility can be determined in accordance with the standards established pursuant to section 17-3a.”

       Section 17-274-2 (b) of the Regulations of Connecticut State Agencies provides in relevant part: “Such local welfare official shall make a reasonable effort to obtain such information as is necessary to determine such person’s eligibility. Reasonable effort may be demonstrated by but shall not be limited to the following:
      “(1) A telephone call to the applicant for the purpose of making an appointment for an eligibility interview.
      “(2) A certified letter to the applicant’s last known address for the same purpose.
      “(3) A check of available public records for the purpose of establishing the whereabouts of the individual so that an appointment as set forth above can be made. Such records shall include the local welfare official’s own files, local land and tax records, Connecticut Motor Vehicle Department records, voter registration lists, etc.”


author: Santaniello, J. Shea, J.,

text:
    Donald C. Cilley, Jr. v. Harold Lamphere et al.
    (13133)
    Peters, C. J., Healey, Shea, Callahan and Santaniello, Js.
    Argued October 7, 1987
    decision released January 19, 1988

      John C. Driscoll, with whom, on the brief, was Lewis C. Maruzo, for the appellant (plaintiff).

      Joseph C. Morelli, for the appellees (defendants).
   Santaniello, J.

The plaintiff, Donald C. Cilley, Jr., a patrolman for the city of Norwich, brought this action against Richard Podurgiel, Norwich director of personnel, Harold Lamphere, Norwich fire chief, and Charles Whitty, Norwich city manager. This matter arose out of the defendant Podurgiel’s refusal to comply with the plaintiff’s request that he be transferred from the Norwich police department to the Norwich fire department. In the plaintiff’s complaint, he seeks a writ of mandamus ordering the defendants to obey and implement the decision of the Norwich personnel and pension board (hereinafter board), which ordered the transfer of the plaintiff to a position in the fire department of the city of Norwich. The trial court denied the writ of mandamus, holding that the board did not have jurisdiction to order the transfer. The plaintiff has appealed from the judgment of the trial court. We find no error.

The trial court, in its memorandum of decision, made the following findings of fact and conclusions of law: On March 2,1981, and June 9,1981, the plaintiff requested a transfer to a position in the Norwich fire department. Both transfer requests were rejected. On April 17, 1982, the plaintiff complained to the board that his name had not been included on the transfer list. The board voted, on May 18,1982, to place the plaintiff on the transfer list to the fire department. Although the fire chief was willing to accept the plaintiff, on July 20, 1982, the police chief objected to the transfer because of the personnel needs of the police department. Even though the police chief objected, the board, on October 4, 1982, voted to transfer the plaintiff to the fire department. The defendant Podurgiel has refused to comply with the decision of the board, and the plaintiff brought this mandamus action, which was denied by the trial court.

The plaintiff argues in his appeal that the court (1) erred in concluding that the board had neither the power nor the jurisdiction to resolve the plaintiffs appeal, and (2) abused its discretion in refusing to grant the plaintiffs request for mandamus.

I

The plaintiff first claims that the trial court erred in holding that the board did not have the power or jurisdiction to order the transfer of the plaintiff from the police department to the fire department. The plaintiff claims that the board’s power to order transfers derives from one of three sources: Merit System Rule VIII, § 3; Merit System Rule XIII, § 2; and chapter XIV, § 4, of the Norwich city charter.

Transfers of employment are governed by the Norwich city charter and the Norwich merit system rules. Chapter XIV, § 5, of the Norwich charter provides: “[t]he rules adopted in accordance with the provisions of this chapter shall have the force and effect of law. Among other things they shall provide for . . . transfer of employees within the classification plan . . . .” The rules adopted pursuant to chapter XIV, § 5, of the Norwich city charter are known as the merit system rules. Rule VIII, § 3, of the merit system rules, which relates specifically to transfers, provides that the director of personnel must “contact the heads of the departments in which employees requesting transfer are employed and ascertain whether or not any of these employees are available for temporary or permanent transfer according to the needs. ... If the employees so referred are rejected by the department head or if no employees are available for transfer, the Director of Personnel will proceed to fill the vacancy according to the regular certification procedure outlined in section 4 of this rule. . . .” (Emphasis added.)

When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction. Seals v. Hickey, 186 Conn. 337, 346, 441 A.2d 604 (1982). The language used in Rule VIII, § 3, is clear and unambiguous. According to the rule, if a department head states that the needs of the department are such that the employee is not available for transfer, then the director of personnel must fill the vacancy according to the regular certification procedure. The rule does not give the director of personnel, or the board, the power to review and overrule the decision of the department head. The board has the authority to grant transfers excepting when the department head vetoes a transfer for reasons of department needs. Accordingly, the trial court did not err in holding that the board did not have the jurisdiction under Merit System Rule VIII, § 3, to overrule the chief of police and transfer the plaintiff to the fire department.

The plaintiff argues nonetheless that pursuant to Merit System Rule XIII, § 2, the board has jurisdiction to decide the plaintiffs appeal regarding his requested transfer. An administrative body “ ‘ “must act strictly within [its] statutory authority, within constitutional limitations, and in a lawful manner.” ’ ” Lundy Electronics & Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 694, 458 A.2d 387 (1983); Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). Rule XIII, § 2, provides that the board shall have the power to review decisions of the director of personnel relating to complaints and grievances that an employee may have because of any action affecting his status or condition of employment. As previously stated, under Merit System Rule VIII, § 3, it is the department head, and not the director of personnel, who determines the needs of his department and thus whether an employee is available for transfer. Rule XIII, § 2, gives the board the power to review decisions of the director of personnel, but the rule does not give the board the power to review the decisions of department heads. Accordingly, the court did not err in holding that the board had neither the power nor jurisdiction to decide the plaintiffs appeal pursuant to Merit System Rule XIII, § 2.

The plaintiff finally argues that pursuant to chapter XIV, § 4, of the Norwich city charter, the board has jurisdiction to decide the plaintiffs appeal regarding his transfer. “ ‘It is well established that a city's charter is the fountainhead of municipal powers. . .' ” Lombardi v. Bridgeport, 194 Conn. 601, 604, 483 A.2d 1092 (1984). “The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised.” West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983). Agents of a city, including commissions, have no source of authority beyond the charter. Perretta v. New Britain, 185 Conn. 88, 92, 440 A.2d 823 (1981). When a charter is construed, the rules of statutory construction generally apply. Arminio v. Butler, 183 Conn. 211, 217, 440 A.2d 757 (1981). Common sense must be used in construing a statute. Murach v. Planning & Zoning Commission, 196 Conn. 192, 196, 491 A.2d 1058 (1985).

Chapter XIV, § 4, of the Norwich city charter provides that it shall be the duty of the board “[t]o hear appeals from any action pertaining to classification, reclassification and allocation of positions and from any disciplinary action . . . .” The plaintiff argues that a denial of his transfer is an action that pertains to allocation of positions, and thus the board has the jurisdiction to hear his appeal. The trial court held that chapter XIV, § 4, of the Norwich city charter does not apply to transfers.

This court has hereinbefore held pursuant to chapter XIV, § 5, of the Norwich city charter, and Merit System Rule VIII, § 3, and Rule XIII, § 2, that the board does not have the power or jurisdiction to review decisions of department heads as to the needs of the department and the availability of an employee for transfer. Chapter XIV, § 4, of the Norwich city charter does not give the board any broader powers to review decisions of department heads with respect to the availability of an employee for transfer. Accordingly, the trial court did not err in holding that chapter XIV, § 4, of the Norwich city charter does not give the board jurisdiction to decide the plaintiff’s appeal.

II

The plaintiff’s final claim of error is that the trial court abused its discretion in refusing to grant the plaintiff mandamus relief to effectuate the final decision of the board. The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate remedy at law. Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985). “The issuance of the writ rests in the sound discretion of the court.” West Hartford Taxpayers Assn., Inc. v. Streeter, supra, 740. In light of the trial court’s holdings that the board was bound by the Norwich city charter and the merit system rules, it concluded that to grant the plaintiff’s request under the circumstances of this case would be a misuse of mandamus. We find that the plaintiff has failed to establish that he has a clear legal right to be transferred, and therefore, the trial court did not err in denying the plaintiff’s request for mandamus.

There is no error.

In this opinion Peters, C. J., Healey and Callahan, Js., concurred.

Shea, J.,

dissenting. In affirming the trial court’s conclusion that the Norwich personnel and pension board (board) lacked jurisdiction to decide the plaintiffs appeal and thus to order his transfer to the fire department, the majority opinion takes a much narrower view of the scope of the grievance procedure available to city employees than justified by the language of the merit system rules establishing that procedure. Rule XIII, § 2, of the Norwich merit system rules, provides that “[a]ll other complaints and grievances [i.e., those not involving suspensions, demotions or dismissals] which an employee may have because of any action affecting his status or conditions of employment shall be handled” under the prescribed grievance procedure that culminates in a decision of the director of personnel, which ££[t]he Personnel Board may review . . . and its decision shall be final.” The plaintiff’s claim that the chief of police had arbitrarily refused to consent to his transfer to the fire department certainly constituted a complaint or grievance falling within this jurisdictional grant, because that refusal was an “action affecting his status or conditions of employment.” The result of the refusal is that he must remain a policeman instead of changing his “status or conditions of employment” to those of a fireman.

The majority declines to follow the plain intention of the merit system rules to vest in the board the final authority to resolve all employee grievances, because it views the decision of the board ordering the transfer in the face of the police chief’s opposition as contrary to the provisions of the merit system rules relating to transfers. Whether the board has erred in applying or interpreting these rules is immaterial in deciding whether the plaintiffs dispute with the police chief falls within the board’s jurisdiction. The provision that a decision of an administrative agency “shall be final” precludes any review of the merits of that decision. “The power of the [agency] to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952). “ ‘[W]here a court or administrative body is dealing with a controversy of the kind it is authorized to adjudicate, and has the parties before it, it has jurisdiction. And jurisdiction does not depend upon the regularity of the exercise of its power or the correctness of decisions made.’ ” Thermoid Western Co. v. Union Pacific R. Co., 12 Utah 2d 256, 259, 365 P.2d 65 (1961), quoted with approval in State v. Tedesco, 175 Conn. 279, 286, 397 A.2d 1352 (1978). The reliance of the majority upon the circumstance that the board may have applied the merit system rules erroneously indicates a confusion between the incorrect exercise of jurisdiction and the lack thereof. See Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984).

The majority construes § 2 of the Merit System Rule XIII not to “give the Board the power to review the decisions of department heads.” No effort has been made to justify textually or otherwise this narrow interpretation of the grant to the board of authority to review decisions of the director of personnel upon complaints or grievances of an employee “because of any action affecting his status or conditions of employment.” (Emphasis added.) Such a construction effectively nullifies the grievance procedure established by rule XIII, § 2, because subparagraphs (b), (c), (d) and (e) indicate that the department head must first decide a grievance of any employee within his department before the personnel director “shall make a complete report of his findings and render a decision to the employee and the department head in writing.” Thus it is clear that all grievances which are the subject of a decision by the personnel director must first have been decided by a department head. Under the position taken in the opinion that the board has no power to review a decision of a department head even though that decision has later been reviewed by the personnel director and thus has become his decision, the board would be effectively deprived of all jurisdiction in these grievance matters falling within the ambit of rule XIII, § 2, of the merit system rules.

Accordingly, I dissent from this virtual gutting of the grievance procedure established by the merit system rules, which the majority opinion has achieved.

       The plaintiff first brought this action in December, 1982. On September 12, 1983, the trial court, Goldstein, J., denied the plaintiffs request for a writ of mandamus. See Cilley v. Lamphere, Superior Court, judicial district of New London, Docket No. 72057S (September 13,1983). The plaintiff appealed the decision to the Appellate Court which dismissed the appeal. On December 30,1985, the plaintiff brought an identical action (this action). On August 12,1986, the court, Norko, J., denied the plaintiff’s request for a writ of mandamus. Judge Norko adopted Judge Goldstein’s decision of September 12,1983, as his own. See Cilley v. Lamphere, Superior Court, judicial district of New London, Docket No. 082429 (August 12,1986). Since Judge Norko adopted Judge Goldstein’s decision as his own, references made to the trial court decision in this opinion are to Judge Goldstein’s memorandum of decision.

       Chapter XIV, § 5, of the Norwich city charter provides: “rules of the Personnel and Pension Board.
      “The rules adopted in accordance with the provisions of this chapter shall have the force and effect of law. Among other things they shall provide for the method of holding competitive examinations; the method of certifying eligibles for appointment; the establishment, maintenance, consolidation and cancellation of eligible lists; administration of the classification plan and the pay plan and methods of promotion and the application of service ratings thereto, probationary periods of employment; transfer of employees within the classification plan, hours of work, vacations, sick leaves and other leaves of absence; overtime pay; the order and manner in which lay offs shall be effected; suspensions and dismissals and appeals therefrom; and such other rules as may be necessary to provide an adequate and systematic procedure for handling the personnel and pension affairs of the city.”

       Norwich Merit System Rule VIII, § 3, provides: “TRANSFERS. Employees wishing to be transferred to a position in the same class in another department shall so notify the Director of Personnel in writing who shall maintain suitable lists of such employees. The regular procedure for transfer of such employees will be as follows; When a vacancy occurs, the Director of Personnel will survey the transfer list and contact the heads of the departments in which employees requesting transfer are employed and ascertain whether or not any of these employees are available for temporary or permanent transfer according to the needs. If employees are available and the department heads involved are willing to accept the transfer, the Director of Personnel will notify the head of the department where the vacancy exists by forwarding a list of names of employees who appear on the appropriate transfer list. The department head will interview the employee referred to him and if he finds one or more satisfactory to him, he will make the appointment and notify in writing the employee and the Director of Personnel. If the employees so referred are rejected by the department head or if no employees are available for transfer, the Director of Personnel will proceed to fill the vacancy according, to the regular certification procedure outlined in section 4 of this rule. No person shall be transferred to a position for which he does not possess the minimum qualifications.”

       Norwich Merit System Rule XIII, § 2, provides: “complaints and GRIEVANCES OTHER THAN THOSE RELATING TO SUSPENSIONS, DEMOTIONS OR dismissals. Complaints which involve suspensions, demotions or dismissals shall be handled by the Personnel Board as provided in Section 3 of this rule. All other complaints and grievances which an employee may have because of any action affecting his status or conditions of employment shall be handled as follows:
      “(a) The grieved employee and/or representative shall take up his grievance with his immediate supervisor who will take the necessary steps to adjust the complaint if it is in his power to do so.
      “(b) If the immediate supervisor is unable or unwilling to adjust the grievance, the. grievance should be put into writing and sent to his division or department head with a copy to the Department of Personnel. The department or division head will discuss the grievance with the employee and his representatives if any, and attempt to adjust the problem if it is within his power to do so. The division or department head will reduce Ms finding in the case to writing and advise the employee and the personnel department of his decision in the case.
      “(c) Should the employee still be grieved he should apply in writing to the Director of Personnel stating the reasons for his grievance, including all pertinent facts of the case.
      “(d) Within ten days after receiving the complaint, the Director of Personnel shall call a meeting which shall include the department head, the complainant and representatives of his own choosing, and any other person or persons involved in the complaint. The Director of Personnel shall preside at the meeting and hear the entire case to obtain all of the facts.
      “(e) The Director of Personnel shall make a complete report of Ms findings and render a decision to the employee and the department head in writing.
      ‘ ‘(1) The Personnel Board may review the decision of the Director of Personnel and its decision shall be final.”

       Chapter XIV, § 4, of the Norwich city charter provides: “powers and DUTIES OF THE PERSONNEL AND PENSION BOARD.
      “It shall further be the duty of the personnel and pension board: (a) To hear appeals from any action pertaining to classification, reclassification and allocation of positions and from any disciplinary action suspending, reducing or removing any officer or employee in the classified service as hereinafter provided, and to report in writing to the officer taking the action appealed from, its findings and decisions therein; (b) to consider the rules recommended by the director of personnel and to adopt or amend the same but only after public hearing thereon of which at least five days’ notice shall be given by advertisement once in a daily newspaper of general circulation in the city; (c) to adopt or amend the classification plan recommended by the director of personnel; (d) to investigate any or all matters relating to conditions of employment in the city service and to make at least annually a report of its findings to the council; (e) to administer retirement funds as hereinafter set forth.”

       See footnote 4, supra, of the majority opinion.

       See footnote 4, supra, of the majority opinion.


author: Peters, C. J.

text:
    Laurie L. Ames v. Sears, Roebuck and Company
    (13208)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued December 1, 1987
    decision released January 19, 1988

      Kirk D. Tavtigian, Jr., with whom, on the brief, were Philip S. Walker and Steven M. Greenspan, for the appellant (defendant).

      Frank N. Eppinger, with whom, on the brief, was Peter J. Bartinik, for the appellee (plaintiff).
   Peters, C. J.

This appeal entails an examination of the circumstances under which a judgment debtor, by use of a writ of audita querela, can obtain relief from a final judgment awarding monetary damages to a judgment creditor. The defendant, Sears, Roebuck and Company, filed its application for a writ of audita querela alleging that the plaintiff, Laurie L. Ames, was threatening to cause execution to issue on a judgment in her favor in the amount of $175,000. Because the plaintiff had earlier received a payment of $25,000 from other alleged tortfeasors, the defendant claimed that its postjudgment payment of $150,000 had fully paid and satisfied the outstanding judgment. The trial court, Hurley, J., after a hearing, denied the defendant’s application for the writ and ordered payment of the balance due on the judgment. The defendant has appealed. We find no error.

For the purposes of this appeal, the facts of the underlying litigation can be briefly summarized. On August 10, 1978, the plaintiff was seriously injured when she accidentally fell off a riding lawnmower. The accident occurred on the property of Wallace and Gladys Nordstrom, who had bought the mower from the defendant. The Nordstroms paid the plaintiff $25,000 in return for a release that was executed in advance of the trial of the plaintiffs products liability action against the defendant. The products liability action was tried to a jury, which returned a plaintiffs verdict in the amount of $250,000, reduced to $175,000 because of a jury finding that the plaintiffs conduct had contributed 30 percent to the accident. The trial court, Vasington, J., rendered a judgment in accordance with the jury’s verdict. That judgment was subsequently appealed to, and affirmed by, the Appellate Court. Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 514 A.2d 352 (1986). We denied a petition for certification. Ames v. Sears, Roebuck & Co., 201 Conn. 809, 515 A.2d 378 (1986).

As Judge Hurley’s memorandum of decision in the present proceedings attests, the issue of the pretrial release of the Nordstroms, and their payment of $25,000, was addressed at three different junctures in the trial of the underlying litigation. The defendant first sought, unsuccessfully, to amend its pleadings to file a special defense relating to the Nordstroms’ settlement. The defendant then attempted, again unsuccessfully, to have the settlement admitted into evidence before the jury. Finally, the defendant relied on the settlement in its posttrial motions to have the verdict set aside and for a remittitur. The trial court, Vasington, J., denied these motions.

In its appeal to the Appellate Court, the defendant challenged only one of these adverse rulings relating to the Nordstrom settlement. It contended that the settlement should have been put before the jury because the governing statute, General Statutes § 52-216a, unconstitutionally made an evidentiary distinction between a jury trial and a court trial. Because this constitutional claim had not been “distinctly raised at the trial”; Practice Book § 4185, the Appellate Court declined to consider it. Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 649, 514 A.2d 352 (1986). The defendant’s petition for certification raised no issue with regard to the Nordstrom settlement.

Subsequent to the Appellate Court decision, the defendant paid the plaintiff $150,000 and interest. When the plaintiff refused to discharge the judgment without a further payment of $25,000, the defendant filed the application for a writ of audita querela whose merits are presently before us. In its application, the defendant sought an adjudication that, in light of the $25,000 Nordstrom settlement, the plaintiff’s judgment should be “declared to be wholly satisfied and discharged, and all proceedings under any writ of execution be stayed . . . .” The trial court, Hurley, J., denied the application on the ground that the relevant issues either had been resolved or should have been raised in the underlying proceedings. The defendant was accordingly ordered to pay the balance due on the judgment.

In the defendant’s appeal from this judgment, it maintains that the trial court erred in refusing to apply the common law rule that amounts paid in settlement to a plaintiff by a joint tortfeasor must be credited against any judgment obtained by the plaintiff against other joint tortfeasors. Dwy v. Connecticut Co., 89 Conn. 74, 95, 92 A. 883 (1915). The plaintiff responds that such a claim of error may not be raised by a post-judgment writ of audita querela unless the defendant can show some matter of defense or discharge that postdates the judgment, and that the defendant in this case has failed to make the necessary showing. As did the trial court, we agree with the plaintiff.

The ancient writ of audita querela has been defined as “a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense (e.g., a release) arising, or at least raisable for the first time, after judgment.” A. Leff, “The Leff Dictionary of Law: A Fragment,” 94 Yale L. J. 1855, 2101 (1985); see also Black’s Law Dictionary (5th Ed. 1979) p. 120; 7 J. Moore, Federal Practice (1987) § 60.13; E. Stephenson, Connecticut Civil Procedure (1981) § 209. Because the writ impairs the finality of judgments, the common law precluded its use in cases in which- the judgment debtor sought to rely on a defense such as payment or a release that he had the opportunity to raise before the entry of judgment against him. Wintle v. Wright, 151 Me. 212, 213-14, 117 A.2d 68 (1955). “No authority has been cited to suggest that the writ of audita querela was ever available to present issues which were presented before the entry of the judgment attacked by the writ.” Ameri can National Bank & Trust Co. v. Pennsylvania R. R. Co., 40 Ill. 2d 186, 193, 238 N.E.2d 385 (1968). “The writ of audita querela provides relief from a judgment at law because of events occurring subsequently which should cause discharge of a judgment debtor.” Lapin v. Shulton, Inc., 333 F.2d 169, 171 (9th Cir.), cert. denied, 379 U.S. 904, 85 S. Ct. 193, 13 L. Ed. 2d 177 (1964).

The defendant has not challenged the proposition that a writ of audita querela depends upon a showing of “new matter in defense . . . arising, or at least raisable for the first time, after judgment.” A. Leff, supra. Although the defendant has not fully articulated the grounds for its alleged right to audita querela relief, it appears to be proffering two separate reasons why it has properly invoked the writ. First, the defendant maintains that its postjudgment payment of $150,000, and the plaintiffs subsequent insistence that another $25,000 was due and owing, for the first time made it possible to raise the issue of whether the defendant’s payment would constitute full satisfaction of the plaintiff’s judgment. Second, the defendant claims that it was precluded from an earlier appellate challenge of the relationship of the Nordstrom settlement to the trial court’s denial of its posttrial motions for a remittitur or to have the judgment set aside, because of its justifiable reliance on a judicial construction of § 52-216a that was subsequently changed. Although we find neither of these arguments to be persuasive, they warrant separate consideration.

The defendant’s argument that its postjudgment payment of $150,000 triggered a right to invoke audita querela is based on its claim that the $25,000 Nordstrom settlement, as a matter of law, constituted partial satisfaction of the outstanding judgment of $175,000. Whether that statement of law is sound is not, in our view, an issue that first arose at the time when the defendant made its payment of $150,000. As previously noted, that issue was in fact raised in the underlying trial proceedings, and could have been pursued in the appeal to the Appellate Court. The defendant has cited no authority for the proposition that audita querela lies to afford relief from a final judgment when the legal effect of a pretrial release was a litigated issue in the proceedings that resulted in the disputed judgment. Such a proposition would be inconsistent with the principles of public policy that underlie our rules of res judicata, where we have emphasized that “a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-64, 511 A.2d 333 (1986); Corey v. Avco-Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). “[T]he purpose of a law suit is not only to do substantial justice but to bring an end to controversy.” F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.2, p. 590.

The defendant’s alternate argument is that its attempts to litigate the effect of the Nordstrom settlement were unfairly hampered by its reliance on a judicial interpretation of the relevant statute, § 52-216a, that this court has subsequently changed. At the time of the trial in this case, this court had construed § 52-216a to direct a trial court to consider a pretrial release “[i]n making its postverdict determination on the issue of any claimed excessiveness or inadequacy” in the amount of damages awarded to a plaintiff. Peck v. Jacquemin, 196 Conn. 53, 71, 491 A.2d 1043 (1985). The defendant claims that it relied on Peck when it decided not to pursue in the Appellate Court the merits of the trial court’s denial of its posttrial motions addressed to the amount it had been ordered to pay the plaintiff. Thereafter, in the unrelated case of Alfano v. Insurance Center of Torrington, 203 Conn. 607, 611, 525 A.2d 1338 (1987), we affirmed a trial court’s order of remittitur when we concluded that, in the circumstances of that case, an out-of-court settlement made a jury award excessive as a matter of law. The defendant maintains that, in this case as well, an award of compensation to the plaintiff will be “excessive as a matter of law” unless the jury verdict is reduced to reflect the amount of the Nordstrom settlement.

We need not decide today whether the defendant is correct in its application of the principles of Alfano and Peck to the circumstances of this case. This matter does not come to us on direct appeal from the judgment rendered by Judge Vasington. The question before us is whether, even if there has been a change in the legal principles governing pretrial settlements, such a change entitles a judgment debtor to posttrial relief in audita querela. We conclude it does not.

The parties have cited no case, nor have we been able to find one, in which this question has been addressed with respect to the writ of audita querela. In the federal courts, audita querela has been superseded by the provisions of Rule 60 (b) of the Federal Rules of Civil Procedure. Numerous federal cases decided pursuant to Rule 60 (b) have expressly held that postjudgment relief is not warranted merely because the law applied by a court has subsequently been overruled or declared erroneous in another, unrelated, proceeding. Travelers Indemnity Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir.), cert. denied, 479 U.S. 885, 107 S. Ct. 277, 93 L. Ed. 2d 253 (1986); McKnight v. United States Steel Corporation, 726 F.2d 333, 338 (7th Cir. 1984); E.E.O.C. v. Safeway Stores, Inc., 611 F.2d 795, 799-800 (10th Cir. 1979), cert. denied sub nom. Courtwright v. E.E.O.C., 446 U.S. 952, 100 S. Ct. 2918, 64 L. Ed. 2d 809 (1980); Marshall v. Board of Education, 575 F.2d 417, 424 (3d Cir. 1978); Coalition of Black Leadership v. Cianci, 570 F.2d 12, 16 (1st Cir. 1978); Title v. United States, 263 F.2d 28, 31 (9th Cir.), cert. denied, 359 U.S. 989, 79 S. Ct. 1118, 3 L. Ed. 2d 978, reh. denied, 360 U.S. 914, 79 S. Ct. 1292, 3 L. Ed. 2d 1263 (1959); Berryhill v. United States, 199 F.2d 217, 219 (6th Cir. 1952); and see 7 J. Moore, Federal Practice (1987) § 60.26 [3], p. 60-248; 11 C. Wright & A. Miller, Federal Practice and Procedure (1973) § 2863, p. 203; F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 12.14, pp. 679-80. These authorities concur in the view expressed by the Supreme Court of the United States in a related context: “Petitioner made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home. His choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the [subsequent] case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.” Ackermann v. United States, 340 U.S. 193, 198, 71 S. Ct. 209, 95 L. Ed. 207 (1950). We agree. Monroe v. Monroe, 177 Conn. 173, 177-78, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-216a, as amended to the date of trial in 1984, provided: “reading of agreements or releases to jury prohibited. ADJUSTMENTS FOR EXCESSIVE AND INADEQUATE VERDICTS PERMITTED. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”
      For civil actions accruing on or after October 1,1986, the governing statutes have been amended to require the reduction of a damages award in a personal injury or wrongful death action by amounts received from collateral sources, including joint tortfeasors. See General Statutes §§ 52-225a, 52-225b. These amendments are inapplicable in this case because the accident occurred on August 10, 1978.

       Rule 60 of the Federal Rules of Civil Procedure provides in relevant part: “Relief from Judgment or Order ....
      “(b) mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons; (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . . . Writs of . . . audita querela are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.”

       There may well be different considerations when the question is not relief from a monetary judgment but modification of the terms of an injunction governing future conduct. F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 12.14, p. 680; 2 Restatement (Second), Judgments (1982) § 73, comment c.


author: Santaniello, J.

text:
    Georgia Kilpatrick v. Board of Education of the Town of Fairfield et al.
    (13072)
    Healey, Callahan, Glass, Covello and Santaniello, Js.
    Argued November 5, 1987
    decision released January 19, 1988

      William J. Kupinse, Jr., with whom, on the brief, was George J. Markley, for the appellant (plaintiff).

      William J. Dolan, for the appellees (defendants).
   Santaniello, J.

The plaintiff, Georgia Kilpatrick, a member of the teaching staff of the Fairfield public schools, brought this action seeking a permanent injunction against and damages from the board of education of the town of Fairfield (board) and the Fairfield Education Association, Inc. (FEA). The plaintiff claims that service fees that the defendants collected from the plaintiff were illegal because they exceeded the dues of the FEA, and thereby violated General Statutes § 10-153a (b). The trial court denied the plaintiff’s request for a permanent injunction and damages. The plaintiff has appealed. We find no error.

The trial court’s memorandum of decision and the record reveal the following facts: The plaintiff is not a member of the FEA, which is the exclusive bargaining agent for all teachers in the Fairfield public schools. Pursuant to a collective bargaining agreement between the defendants, all teachers in the Fairfield public schools are required either to join the FEA, or to pay to the FEA a service fee which is equivalent to the proportion of FEA dues uniformly required of members to underwrite the costs of collective bargaining, contract administration and grievance adjustment. All members of the FEA are also required to be members of the Connecticut Education Association (CEA) and the National Education Association (NEA). FEA members were required to pay as dues a total of $346 for the academic year 1985-1986. Of the total, $127 was allocated directly to the FEA as dues, and $219 was allocated to the CEA and the NEA. The plaintiff was assessed 79.9 percent of the total dues of FEA members as a service fee ($274), and a portion of that service fee went to the CEA and the NEA.

The trial court found that since the CEA and the NEA render assistance to the FEA in collective bargaining, contract administration and grievance adjustment, it was not a violation of General Statutes § 10-153a (b) for the local teachers organization to allocate part of the service fee to the CEA and the NEA.

The plaintiff argues in her appeal that the court erred in: (1) failing to find that the service fee that the defendants collected from her was illegal because it exceeded the dues of the FEA, and thereby violated § 10-153a (b); and (2) failing to grant the plaintiff a permanent injunction and to award damages.

I

This appeal focuses on the issue of whether the service fee provided for in the collective bargaining agreement between the defendants violates the express terms of § 10-153a (b). That section provides in part that all employees in a bargaining unit may be required as a condition of employment to “pay to the exclusive bargaining representative of such employees an annual service fee, not greater than the amount of dues uniformly required of members of the exclusive bargaining representative organization, which represents the cost of collective bargaining, contract administration and grievance adjustment . . . .” There are therefore two requirements pursuant to this section for assessing fees to nonmembers of an exclusive bargaining representative. First, the fees must not be greater than the amount of dues uniformly required of members of the exclusive representative, and second, the fees must represent the costs of collective bargaining, contract administration and grievance adjustment.

A

The first requirement of § 10-153a (b) is that the annual service fee may not be “greater than the amount of dues uniformly required of members of the exclusive bargaining representative organization . . . .” The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed. State v. Pellegrino, 194 Conn. 279, 284, 480 A.2d 537 (1984). Intent is to be ascertained from the language of the statute if plain and unambiguous. State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). The courts must apply enactments according to their plain terms, and cannot read into a statute something that is not there. Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). The plaintiff is asking this court to interpret § 10-153a (b) to mean that the service fee may not be greater than the amount of FEA dues uniformly required of members. It is clear from the language of § 10-153a (b) that the intent of the legislation is to require employees in a bargaining unit, who are not members of the exclusive representative, to pay their fair share of the costs of collective bargaining, contract administration and grievance adjustment. Since the legislature has failed to provide that a nonmember employee is required to pay a fee not greater than the “local” dues of the exclusive representative, we cannot read this limitation into the statute.

The United States Supreme Court has recognized that “[t]he tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditures of much time and money.” Abood v. Detroit Board of Education, 431 U.S. 209, 221, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977). Employees in a bargaining unit who reap the benefits of an exclusive representative’s collective bargaining efforts may be required to pay their fair share of the costs of those efforts. Railway Employes' Department v. Hanson, 351 U.S. 225, 238, 76 S. Ct. 714, 100 L. Ed. 1112 (1956).

In the present case, there is no dispute that the FEA is the exclusive bargaining representative for the Fair-field public schools. There is also no dispute that members of the FEA are required as well to be members of the CEA and the NEA, and are thus assessed annual dues for these memberships. Since a member of the FEA is required to pay dues to the FEA, the CEA, and the NEA, then, pursuant to § 10-153a (b), a nonmember may be assessed a service fee not greater than the total dues of the three organizations relating to the costs of collective bargaining, contract administration and grievance adjustment. Accordingly, the trial court did not err in holding that the defendants’ service fee arrangement did not violate the first requirement of § 10-153a (b).

B

The second requirement of General Statutes § 10-153a (b), is that the service fee must represent the costs of collective bargaining, contract administration and grievance adjustment. The trial court found that the CEA and the NEA render assistance to the FEA in collective bargaining, contract administration and grievance adjustment. The plaintiff did not dispute this finding or the particular amounts apportioned. Therefore, the trial court did not err in holding that the defendants’ service fee arrangement did not violate § 10-153a (b).

II

In light of our holding that the service fees assessed under the collective bargaining agreement did not violate § 10-153a (b), we need not address the issue of damages, or the failure of the trial court to issue a permanent injunction.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 10-153a (b) provides: “Nothing in this section or in any other section of the general statutes shall preclude a local or regional board of education from making an agreement with an exclusive bargaining representative to require as a condition of employment that all employees in a bargaining unit pay to the exclusive bargaining representative of such employees an annual service fee, not greater than the amount of dues uniformly required of members of the exclusive bargaining representative organization, which represents the cost of collective bargaining, contract administration and grievance adjustment; and that such service fee be collected by means of a payroll deduction from each employee in the bargaining unit.”

       The collective bargaining agreement between the board and the FEA, for the period July 1, 1984, through June 30, 1986, provided: “10.9 dues DEDUCTION AND SERVICE FEE DEDUCTION.
      “1. Conditions of Continued Employment.
      “All bargaining unit employees of the Fairfield Board of Education shall, as a condition of continued employment join the Association or pay a service fee to the Association. Said service fee shall be equal to the proportion of Association dues uniformly required of members to underwrite the costs of collective bargaining, contract administration and grievance adjustment.”

       At oral argument, the parties stated that a member of the FEA was also required to be a member of the CEA and the NEA. Counsel for the plaintiff did note that this requirement was mandated by the CEA and the NEA, and not by the FEA.