Glastonbury Education Ass'n v. Freedom of Information Commission , 35 Conn. App. 111 ( 1994 )

Heiman, J.

The defendant¹ freedom of information commission (FOIC) appeals from the judgments² of the trial court sustaining the plaintiffs’³ appeals from the defendant’s decisions. On appeal, the defendant claims that the trial court improperly found that the arbitration proceedings between the Glastonbury education association (GEA) and the Glastonbury board of education (board) were not subject to the Freedom of Information Act (FOIA); General Statutes § 1-15 et seq.; and in doing so failed to follow the applicable scope of judicial review. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. In 1990, the GEA and the board were negotiating a new contract. On December 8,1990, an arbitration hearing was held by a panel of three arbitrators pursuant to General Statutes § 10-153Í (c).⁴ The purpose of the hearing was to allow the GEA and the board to present a “last best contract” offer to the panel. See General Statutes § 10-153f (c) (4). Kathleen Stack, the editor of the Glastonbury Citizen, sought to attend the hearing. The panel members unanimously decided that the meeting was not open to the public because it constituted strategy or negotiations with respect to collective bargaining. See General Statutes §§ l-18a and 1-21 (a). Stack, along with James Hallas, the publisher of the Glastonbury Citizen, filed a complaint concerning the panel’s action with the FOIC. The FOIC found “that although the respondent panel’s hearings may and often do lead to further negotiation, the actual arbitration hearing, in this case, during which the parties offered evidence and argument, constituted a meeting within the meaning of § l-18a (b), which should have been open to the public pursuant to § 1-21.”

The plaintiffs appealed to the trial court pursuant to General Statutes §§ l-21i (b)⁵ and 4-183 (a)⁶ asserting that the FOIC improperly interpreted the definition of “meeting” in General Statutes § l-18a (b).⁷ The trial court determined that the FOIA is not applicable to arbitration hearings because the term meeting in General Statutes § 1-21⁸ and defined in § l-18a (b) does not encompass arbitration proceedings. It relied on two opinions of the state board of labor relations; In the Matter of Branford Board of Education, Dec. No. 2274 (1984), and In the Matter of New Canaan Board of Education, Dec. No. 2400 (1985), and an opinion of the defendant FOIC; Radford v. Trumbull, Docket No. FIC 79-246 (1980). The trial court found that the arbitration proceeding fell into the category of “strategy or negotiations with respect to collective bargaining” as stated in § l-18a (b). The defendant FOIC appealed to this court.

An appeal from an FOIC decision is governed by the Uniform Administrative Procedure Act (UAPA). Board of Pardons v. Freedom of Information Commission, 19 Conn. App. 539, 546, 563 A.2d 314, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989); see General Statutes § 4-166 et seq. “[WJhere a party appeals pursuant to the jurisdictional grant of the UAPA, the agency action is measured by the standards contained within the UAPA. McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 441, 363 A.2d 103 (1975). We, therefore, review the merits of the defendants’ claims in the context of the limited scope of judicial review afforded by the UAPA to determinations made by an administrative agency.⁹ 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). With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . 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. . . . The present appeal is from the decision of the trial court. We review that decision only to determine whether it was rendered in accordance with the [UAPA].” (Citations omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 660-61, 638 A.2d 6 (1994). Therefore, we must determine whether the trial court improperly determined that the FOIA does not apply to these arbitration proceedings.

Our courts have not decided whether the term “meeting” as found in General Statutes § l-18a (b) applies to these arbitration proceedings. The FOIC decided in a previous decision that the FOIA does not apply to arbitration hearings, which is contrary to its decision in this case. Radford v. Trumbull, supra, Docket No. FIC 79-246. We usually defer to the administrative agency’s decision when interpreting a statute. See Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994); Board of Education v. State Board of Education, 30 Conn. App. 720, 726, 622 A.2d 614 (1993), aff’d, 228 Conn. 433, 636 A.2d 378 (1994). Here, the FOIC has interpreted the statute in a manner inconsistent with its previous interpretation of the same statute. See Radford v. Trumbull, supra.¹⁰ Therefore, we must determine, without our usual deference, whether arbitration proceedings held pursuant to General Statutes § 10-153f (c) (4) are subject to the FOIA.

An examination of the language of the statute does not reveal the intent of the legislature as to whether the arbitration proceedings are exempt from the FOIA. It is facially unclear from the statutory language whether arbitration proceedings are subject to the FOIA under General Statutes § 1-21. “Generally, ‘when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Further, we must interpret a statute according to its plain and ordinary meaning. Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981). ‘When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve.’ Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992).” West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994).¹¹

The legislative history clearly demonstrates that the legislature intended the term meeting not to apply to any part of the collective bargaining process.¹² The House debate discloses that the statute should not apply to “sessions concerning collective bargaining.” 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3912. Further, the House debate on an amendment to the proposed bill emphatically stated that “the concept of collective bargaining [was] out of the ‘right to know law.’ ” Id., p. 3896. The Connecticut Civil Liberties Union also filed a policy statement with the Senate that stated that the FOIA should not apply when a legislative, executive or administrative body considers and negotiates employment contracts. 18 S. Proc., Pt. 5,1975 Sess., p. 379. Therefore, on the basis of the legislative history, collective bargaining hearings held pursuant to General Statutes § 10-153Í (c) (4) are not subject to the FOIA.¹³

This interpretation is also in accord with the intent of the last best offer stage of the Teacher Negotiation Act (TNA). General Statutes § 10-153a et seq. The TNA gave teachers binding arbitration in lieu of the right to strike. L. Bingham, “Midterm Bargaining Disputes and Binding Arbitration of Public Sector Employees,” 17 Conn. L. Rev. 365, 375 (1985). At the arbitration sessions, the parties can stipulate to facts and offer evidence. Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 508, 522 A.2d 264 (1987); L. Bingham, supra, 380. Further, the statute requires that the arbitrator incorporate agreements negotiated prior to the final award. General Statutes § 10-153Í (c) (4); J. Clentano & L. Williamson, Jr., “Primer on Educator Collective Bargaining in Connecticut,” 17 Conn. L. Rev. 307, 340 (1985). Thus, the legislature intended continued negotiations throughout the arbitration hearings and after the hearings are concluded, prior to the issuance of the award.

The trial court correctly found that the FOIC improperly and illegally subjected the arbitration hearings to the FOIA.

The judgment is affirmed.

In this opinion Freedman, J., concurred.

1 The defendants in these actions are the freedom of information commission (FOIC); Kathleen Stack, the editor of the Glastonbury Citizen; James Hallas, the publisher of the Glastonbury Citizen; and the Glastonbury Citizen. Only the FOIC appealed. We refer to the FOIC as the defendant.

2 The plaintiffs appealed separately to the trial court and the appeals were subsequently consolidated.

3 The plaintiffs in these actions are the Glastonbury Education Association; Marilyn Campbell, the acting commissioner of education; and members of the panel conducting arbitration hearings between the Glastonbury education association and the Glastonbury board of education, Peter Blum, Leonard Rovins and Donald Deneen.

4 General Statutes § 10-153Í (c) provides in pertinent part that after mediation of a dispute has failed: “If each party has notified the commissioner of the name of the arbitrator it has selected, within five days after such notification, the commissioner shall select a third arbitrator, who shall be an impartial representative of the interests of the public in general. . . . At the hearing each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its positions.

* ** *

“(4) After hearing all the issues, the arbitrators . . . shall, within twenty days, render a decision in writing, signed by a majority of the arbitrators . . . which states in detail the nature of the decision and the disposition of the issues by the arbitrators .... The written decision shall include a narrative explaining the evaluation by the arbitrators ... of the evidence presented for each item upon which a decision was rendered by the arbitrators . . . and shall state with particularity the basis for the decision as to each disputed issue and the manner in which the factors enumerated in this subdivision were considered in arriving at such decision, including, where applicable, the specific similar groups and conditions of employment presented for comparison and accepted by the arbitrators . . . and the reason for such acceptance. ... At any time prior to the issuance of a decision by the arbitrators . . . the parties may jointly file with the arbitrators . . . any stipulations setting forth contract provisions which both parties agree to accept. . . . The parties shall submit to the arbitrators . . . their respective positions on each individual issue in dispute between them in the form of a last best offer. The arbitrators . . . shall resolve separately each individual disputed issue by accepting the last best offer thereon of either of the parties, and shall incorporate in a decision each such accepted individual last best offer and an explanation of how the total cost of all offers accepted was considered. . . .”

5 General Statutes § 1-211 provides in pertinent part: “(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, l-20a 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.

“(d) 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. . . .”

6 General Statutes § 4-183 (a) provides in pertinent part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .”

7 General Statutes § l-18a provides in pertinent part: “(b) ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. . . .” (Emphasis added.)

8 General Statutes § 1-21 provides in pertinent part: “(a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. . . .”

9 General Statutes § 4-183 ® provides in pertinent part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings.”

10 The dissent argues that we are incorrect in asserting that the decision of the FOIC in Radford v. Trumbull, supra, Docket No. FIC 79-246, is inconsistent with its decision here. That assertion is neither logically nor legally correct. In Radford, the FOIC said that the public was not entitled to access the written last best offer. There is no legal difference between a written document and the same information in oral form. Constancy and logic demand that they be treated in the same manner.

11 While the dissent argues that we need not look to the legislative history because the statute is facially clear, it then, by its argument, concedes that in fact the statute is not clear by asserting that events that are precluded from public scrutiny do, in fact, come into play in the course of proceedings that are statutorily exempt from the FOIA. Thus, the concession in the dissent that the statute applies to those instances is facially inconsistent with the premise that hearings of this nature are not exempt.

12 We agree with the dissent that, but for the existence of the statutory exemption, the hearing would be subject to the provisions of the statute.

13 The dissent argues in footnote 1, that the legislative history does not support the conclusion of the court. The dissent points to the legislative history wherein the legislators stated that the FOIA does not apply to collective bargaining. It then leaps, without benefit of citation of authority, to the conclusion that the last best offer procedure is not part of the collective bargaining scheme. This is inconsistent with the provisions of the Teacher Negotiation Act; General Statutes § 10-153a et seq.; is the vehicle by which this appeal arises.