Norris v. Trumbull , 187 Conn. App. 201 ( 2019 )

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ASHLEY NORRIS ET AL. v. TOWN OF
TRUMBULL ET AL.
(AC 40094)
Alvord, Prescott and Eveleigh, Js.
Syllabus
The plaintiffs, B and her daughter A, sought to recover damages for personal
injuries from the defendant regional educational service center, which
was established pursuant to statute (§ 10-66a et seq.), in connection
with an incident in which A, a special needs student, was injured while
attending a school operated and managed by the defendant. The defen-
dant filed a motion to dismiss the only count of the complaint that was
directed against it, which alleged negligence, claiming that, as a regional
educational service center, under § 10-66c it was an agent of the state
and, therefore, had sovereign immunity in an action for money damages
absent a proper waiver of sovereign immunity. The trial court denied
the defendant’s motion to dismiss, and the defendant appealed to this
court. The defendant claimed that the trial court improperly determined
that the defendant’s role in supervising students committed to its care
and custody was a municipal function that was not shielded by the
doctrine of sovereign immunity. Held the trial court properly denied the
defendant’s motion to dismiss, as the defendant acted as an agent of
its constituent municipal boards of education, and not the state, when
overseeing the care and safety of children enrolled in its schools and
programs, and, thus, it could not invoke the doctrine of sovereign immu-
nity in this negligence action: the criteria set forth by our Supreme Court
in Gordon v. H.N.S. Management Co. (272 Conn. 81) for determining
when an entity properly can assert a sovereign immunity defense
weighed against concluding that the defendant acted as an arm of the
state with respect to any duty it may have had to supervise A, as a
careful reading of the enabling legislation revealed that the defendant
was not created by statute and that the legislature merely authorized
boards of education in interested municipalities to join together to create
a regional educational service center, the statutory language did not
support a conclusion that the legislature intended for entities like the
defendant to be treated like a state agent for all purposes, the fact that
the legislation authorized the defendant’s board to act on behalf of the
state was not itself dispositive of whether the legislature also intended
to treat the defendant as a state agency, entitled to all the rights and
privileges of the state, including sovereign immunity, and nothing in the
enabling legislation expressly states or of necessity implies that regional
educational service centers such as the defendant stand in any different
position than the municipalities that formed them and entrusted their
students to them; moreover, indirect state funding did not make regional
educational service centers, like the defendant, financially dependent
on the state, as it was clear from the record presented and the defendant’s
admissions that the local municipal board, not the state, was directly
responsible for much of the funding provided to the defendant for its
services, and the defendant’s constitution and bylaws made clear that
it was governed by a representative council made up of members from
its constituent local boards of education, and that no one from the
state Board of Education or any other state functionaries were officers,
directors, or trustees of the defendant, or were involved in the operation
of the defendant’s programs and services; furthermore, nothing in the
record indicated that the state had any direct oversight or control over
the defendant, its property or its operations other than to conduct an
annual audit of finances and evaluation of programs and services, there
was no requirement in the defendant’s bylaws that budgets, expenditures
or appropriations be reported to the state Board of Education for
approval or that the state closely monitor its day-to-day operations at
regional educational service centers, and a judgment against the defen-
dant would not have a direct adverse effect on the state.
Argued October 18, 2018—officially released January 15, 2019
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of, inter alia, the defendants’ negli-
gence, and for other relief, brought to the Superior
Court in the judicial district of Fairfield; thereafter, the
action was withdrawn as against the defendant town
of Trumbull et al.; subsequently, the court, Radcliffe,
J., granted the motion for summary judgment filed by
the defendant city of Bridgeport et al.; thereafter, the
court denied the motion to dismiss filed by the defen-
dant Cooperative Educational Services, and the defen-
dant Cooperative Educational Services appealed to this
court. Affirmed.
Ashley A. Noel, with whom, on the brief, was Timothy
R. Scannell, for the appellant (defendant Cooperative
Educational Services).
Kenneth J. Bartschi, with whom were Brendon P.
Levesque and, on the brief, Jeffrey D. Lynch, for the
appellees (plaintiffs).
Opinion
PRESCOTT, J. The sole issue raised in this appeal is
whether a regional educational service center estab-
lished, pursuant to General Statutes § 10-66a et seq., by
four or more municipal boards of education is entitled
to invoke sovereign immunity in a negligence action
brought by a special needs student injured while
attending a school operated and managed by the
regional educational service center. The defendant
Cooperative Educational Services1 appeals from the
trial court’s denial of its motion to dismiss on sovereign
immunity grounds that portion of the operative com-
plaint filed against it by the plaintiffs, Ashley Norris, a
minor child acting through her mother and next friend,
Bonita Wiggins, and Bonita Wiggins individually.2 The
defendant claims that the court improperly determined
that the defendant’s role in supervising students com-
mitted to its care and custody is a municipal function
that is not shielded by the doctrine of sovereign immu-
nity. We disagree and conclude that the court properly
denied the defendant’s motion to dismiss. Accordingly,
we affirm the judgment of the trial court.
The following facts, as alleged in or necessarily
implied from the plaintiffs’ complaint, and procedural
history are relevant to our resolution of the defendant’s
claim. On April 25, 2013, the minor plaintiff was enrolled
at a school for children with special needs located in
Trumbull and operated by the defendant, a regional
educational service center established pursuant to § 10-
66a. The school’s staff was aware that, for her safety,
the minor plaintiff needed to wear a gait belt at all
times.3 That day, however, the minor plaintiff, who was
participating in an activity being run and monitored by
the school, was walking with a staff member in the
school’s parking lot without her gait belt on when she
suffered a seizure and fell to the ground, striking her
face.
On February 20, 2015, the plaintiffs commenced the
underlying action. The operative revised complaint was
filed on August 17, 2015. Count three was the sole count
directed against the defendant and sounded in negli-
gence. According to the plaintiffs, the minor plaintiff fell
due to the carelessness and negligence of the defendant,
which allegedly had failed to take necessary precau-
tions to properly supervise and ensure the safety of
students in its care.4 The plaintiffs alleged that, as a
result of the defendant’s negligence, the minor plaintiff
suffered physical and emotional injuries, and that Wig-
gins was required to expend personal funds for her
child’s medical care. The defendant filed an answer
denying all of the allegations of negligence.
On September 13, 2016, the defendant filed a motion
to dismiss count three of the complaint on the ground
that the court lacked subject matter jurisdiction over
the claims against it. Specifically, the defendant argued
that, as a regional educational service center created
pursuant to § 10-66a, it is a state agent and, therefore,
has sovereign immunity in an action for money damages
absent a proper waiver of sovereign immunity.5
Attached to the motion to dismiss was an affidavit from
the defendant’s executive director averring that the
defendant was one of six regional education service
centers established in this state in accordance with the
provisions of § 10-66a. Also attached were copies of the
defendant’s constitution and governing bylaws.6
The plaintiffs filed an objection to the motion to dis-
miss on November 10, 2016, arguing that sovereign
immunity did not apply to the defendant under the
circumstances alleged. According to the plaintiffs, a
review of the statutory scheme governing regional edu-
cation service centers shows that those entities are not
state agencies and do not act as agents for the state
when overseeing children entrusted to their care. They
instead, according to the plaintiffs, are separate and
independent corporations formed by municipalities.
Furthermore, the plaintiffs noted that amongst the enu-
merated powers given to the regional educational ser-
vice centers by § 10-66c is the power ‘‘to sue and be
sued,’’ which evinces a legislative intent that they are
not state agencies shielded by sovereign immunity.
The court, Radcliffe, J., issued a memorandum of
decision on January 30, 2017, denying the defendant’s
motion to dismiss. The court reasoned that after a
regional education service center is formed by its con-
stituent municipal or regional boards of education, it
exists pursuant to § 10-66c (a) as a ‘‘ ‘body corporate
and politic,’ rather than as an agency of state govern-
ment.’’ More particularly, the court explained that
‘‘[b]ecause [the defendant] is governed by a board of
directors chosen by the member boards of education,
and accepts students from the boards of education, its
actions regarding enrolled students are in lieu of the
municipality in which the affected student resides. [The
defendant] performs functions, and assumes responsi-
bilities as to a given student, which would otherwise
be those of the local or regional board of education.’’
The court acknowledged that sovereign immunity
protections have been extended to entities that act on
behalf of the state, and that the furnishing of public
education is a state function. It noted, however, that
municipal boards of education, despite being entrusted
to perform a state function with respect to education,
nevertheless act as an agent of its municipality, not the
state, when performing that function and, thus, are not
protected by sovereign immunity. Because the court
concluded that a regional educational service center’s
role in the care and supervision of students entrusted
to it is directly analogous to the role performed by local
or regional boards of education, the court concluded
that regional educational service centers similarly can-
not invoke sovereign immunity.7 Although the court
acknowledged that at least one other Superior Court
considering the same issue had reached a contrary con-
clusion, it nonetheless held that ‘‘[i]n the absence of
any appellate authority, sovereign immunity will not be
permitted to bar an action against a ‘body corporate
and politic,’ charged with the care and custody of stu-
dents by local boards of education, under circum-
stances in which the General Assembly has explicitly
provided for the ability of the regional educational cen-
ter to ‘sue and be sued.’ ’’ This appeal followed.
The defendant claims on appeal that the trial court
improperly determined that the defendant was not enti-
tled to invoke sovereign immunity. According to the
defendant, express language exists in § 10-66c that dem-
onstrates that the defendant operates as an agent of
the state in fulfilling a state-mandated duty to provided
special education services to the minor plaintiff and,
therefore, sovereign immunity applies. We disagree.
Like the trial court, we conclude that, for the purposes
of this type of negligence action, the defendant was not
acting as a state agent and, therefore, is not entitled to
the protections of sovereign immunity.
We begin with our standard of review and other appli-
cable principles of law. A motion to dismiss is the proper
vehicle to assert lack of jurisdiction over the subject
matter. Practice Book § 10-30 (a) (1). ‘‘[T]he doctrine
of sovereign immunity implicates subject matter juris-
diction and is therefore a basis for granting a motion
to dismiss.’’ (Internal quotation marks omitted.) Bacon
Construction Co. v. Dept. of Public Works, 294 Conn.
695, 706, 987 A.2d 348 (2010). ‘‘[O]ur review of the trial
court’s ultimate legal conclusion and resulting [denial]
of the motion to dismiss [is] de novo.’’ (Internal quota-
tion marks omitted.) Id. Furthermore, to the extent that
we are called upon to engage in statutory interpretation,
such review is also plenary.8 See Gonzalez v. O & G
Industries, Inc., 322 Conn. 291, 302, 140 A.3d 950 (2016).
‘‘When [deciding] a jurisdictional question raised by a
pretrial motion to dismiss on the basis of the complaint
alone, [a court] must consider the allegations of the
complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by [1] affidavits submitted
in support of the motion to dismiss . . . [2] other types
of undisputed evidence . . . and/or [3] public records
of which judicial notice may be taken . . . the trial
court, in determining the jurisdictional issue, may con-
sider these supplementary undisputed facts and need
not conclusively presume the validity of the allegations
of the complaint. . . . Rather, those allegations are
tempered by the light shed on them by the [supplemen-
tary undisputed facts]. . . . If affidavits and/or other
evidence submitted in support of a defendant’s motion
to dismiss conclusively establish that jurisdiction is
lacking, and the plaintiff fails to undermine this conclu-
sion with counteraffidavits . . . or other evidence, the
trial court may dismiss the action without further pro-
ceedings. . . . If, however, the defendant submits
either no proof to rebut the plaintiff’s jurisdictional
allegations . . . or only evidence that fails to call those
allegations into question . . . the plaintiff need not
supply counteraffidavits or other evidence to support
the complaint, but may rest on the jurisdictional allega-
tions therein.’’
‘‘Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . An evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding based on memo-
randa and documents submitted by the parties.’’ (Cita-
tions omitted; emphasis omitted; footnotes omitted;
internal quotation marks omitted.) Conboy v. State, 292
Conn. 642, 651–54, 974 A.2d 669 (2009).
In the present appeal, in addition to the factual allega-
tions in the complaint, the following documents were
appended to the defendant’s motion to dismiss: (1) a
copy of the defendant’s constitution, (2) a copy of the
defendant’s governing bylaws and (3) an affidavit from
the defendant’s executive director. The plaintiffs never
challenged the authenticity of these submissions in their
opposition to the motion to dismiss or at the hearing
on the motion, nor did they attach any counteraffidavit
or other evidentiary submissions of their own. Neither
party asked the trial court to conduct an evidentiary
hearing in order to establish additional jurisdictional
facts, nor do they claim on appeal that an evidentiary
hearing was necessary in this case. Thus, in conducting
our de novo review, we limit ourselves to the factual
record as it existed before the trial court, supplemented
by any additional records of which we may take judicial
notice. See Conboy v. State, supra, 292 Conn. 653–54.
Turning to the substance of the issue before us, ‘‘[i]n
Connecticut, [w]e have long recognized the common-
law principle that the state cannot be sued without its
consent. . . . The doctrine of sovereign immunity pro-
tects the state, not only from ultimate liability for
alleged wrongs, but also from being required to litigate
whether it is so liable. . . . The protection afforded by
this doctrine has been extended to agents of the state
acting in its behalf.’’ (Citation omitted; internal quota-
tion marks omitted.) Palosz v. Greenwich, 184 Conn.
App. 201, 207, 194 A.3d 885, cert. denied, 330 Conn. 930,
194 A.3d 778 (2018).
It is possible, however, that an entity may be deemed
an agent of the state for some purposes, but not others.
For example, ‘‘[t]own boards of education, although
they are agents of the state responsible for education
in the towns, are also agents of the towns and subject
to the laws governing municipalities. . . . [O]ur juris-
prudence has created a dichotomy in which local boards
of education are agents of the state for some purposes
and agents of the municipality for others.’’ (Citation
omitted; internal quotation marks omitted.) Id, 207–208.
An entity is entitled to invoke sovereign immunity only
if it is acting in its capacity as an agent of the state.
See Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d
937 (1998) (duty of local boards of education to super-
vise students performed for benefit of municipality and
thus sovereign immunity not implicated in action
brought by student alleging injury caused by negligent
supervision), overruled on other grounds by Haynes v.
Middletown, 314 Conn. 303, 101 A.3d 249 (2014).
In Dolnack v. Metro-North Commuter Railroad Co.,
33 Conn. App. 832, 639 A.2d 530 (1994), this court was
faced with a similar question to the one raised in the
present appeal, namely, whether, in the context of a
personal injury action, the court should treat the defen-
dant, a ‘‘public benefits corporation’’ created by New
York state statute, as an arm of the state and, thus,
whether the defendant was entitled to raise sovereign
immunity as a defense. Id., 834. This court first extrapo-
lated from decisional law of other jurisdictions a set of
‘‘characteristics’’ that courts should consider in
determining whether an entity is entitled to raise the
bar of sovereign immunity.9 Id., 835–37. After setting
forth a list of relevant factors to consider, the court
cautioned: ‘‘The fact that an entity was created by a
state statute does not alone establish that it is an arm
of the state. Indeed, all of the [previously stated] charac-
teristics must be examined before a trial court can
conclude that a governmental body is entitled to sover-
eign immunity.’’ Id., 837. Because the trial court in that
case had granted a motion for summary judgment on
sovereign immunity grounds without a sufficient evi-
dentiary basis for determining whether, as a threshold
matter, the defendant was entitled to sovereign immu-
nity, this court reversed the trial court’s decision and
remanded the case for further proceedings. Id., 38–39.
Our Supreme Court, relying in part on our decision
in Dolnack, later established the following analytical
framework to employ when deciding whether an entity
properly could assert a sovereign immunity defense.
‘‘[T]he criteria for determining whether a corporate
entity is an arm of the state entitled to assert sovereign
immunity as a defense are whether: (1) the state created
the entity and expressed an intention in the enabling
legislation that the entity be treated as a state agency;
(2) the entity was created for a public purpose or to
carry out a function integral to state government; (3)
the entity is financially dependent on the state; (4) the
entity’s officers, directors or trustees are state function-
aries; (5) the entity is operated by state employees; (6)
the state has the right to control the entity; (7) the
entity’s budget, expenditures and appropriations are
closely monitored by the state; and (8) a judgment
against the entity would have the same effect as a judg-
ment against the state. To establish that an entity is an
arm of the state, an entity need not satisfy every criteria.
Rather, [a]ll relevant factors are to be considered cumu-
latively, with no single factor being essential or conclu-
sive. . . . We recognize that these criteria are
somewhat interrelated and overlapping. For example,
a determination that an entity is completely financially
dependent on the state could lead to an inference that
the entity is controlled by the state. Similarly, a determi-
nation that the state has the right to control the entity
could lend support to a determination that a judgment
against the entity would affect the state.’’ (Citation omit-
ted; footnotes omitted; internal quotation marks omit-
ted.) Gordon v. H.N.S. Management Co., 272 Conn. 81,
98–100, 861 A.2d 1160 (2004). By indicating that an
entity ‘‘need not satisfy every criteria,’’ the Gordon court
implicitly placed the burden on the entity attempting
to establish its entitlement to sovereign immunity.10
Id., 100.
In Rocky Hill v. SecureCare Realty, LLC, 315 Conn.
265, 105 A.3d 857 (2015), our Supreme Court indicated
that ‘‘[w]hen applying the various factors under Gordon,
courts must remain cognizant of the rationale underly-
ing the doctrine of sovereign immunity. Although, in
the past, we have explained that doctrine in theoretical
terms, namely, that there can be no legal right as against
the authority that makes the law on which the right
depends . . . [t]he modern rationale for the doctrine
. . . rests on the more practical ground that the subjec-
tion of the state and federal governments to private
litigation might constitute a serious interference with
the performance of their functions and with their con-
trol over their respective instrumentalities, funds and
property. . . . Pursuant to this rationale, the doctrine
protects the state from unconsented to litigation, as
well as unconsented to liability. . . .
‘‘Additionally, as . . . explained in the analogous
context of eleventh amendment immunity, when a cor-
porate entity attempts to assert a state’s sovereignty
without clear legislative support for that position, there
is great reason for caution . . . due to the broader con-
sequences that potentially could result from conferring
immunity.’’ (Citations omitted; emphasis added; foot-
note omitted; internal quotation marks omitted.) Id.,282–83. As an example of potential unwanted conse-
quences, the court in Rocky Hill v. SecureCare Realty,
LLC, after turning to the facts of the case before it,
indicated that ‘‘a holding that the defendants essentially
are state actors might not just relieve them from the
obligation of complying with zoning regulations, but
also could shield them from municipal taxation and
from various future lawsuits such as tort actions
brought by their employees or patients or others
harmed by their negligent acts . . . [which] could
create a disincentive to safe practices. . . . In short,
sovereign immunity is strong medicine that should not
be granted lightly to private actors.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.) Id.We turn then to the defendant’s claim that it is a state
agent entitled to sovereign immunity in the present
action and, therefore, the trial court incorrectly denied
the defendant’s motion to dismiss. For the reasons that
follow, we conclude that the criteria set forth by our
Supreme Court in Gordon v. H.N.S. Management Co.,
supra, 272 Conn. 98–100, on balance, weigh against
concluding that the defendant was acting as an arm of
the state with respect to any duty it may have to super-
vise the minor plaintiff, and, thus, we also conclude
that the defendant cannot properly invoke the doctrine
of sovereign immunity in this negligence action.
We first consider whether ‘‘the state created the entity
and expressed an intention in the enabling legislation
that the entity be treated as a state agency . . . .’’ Gor-
don v. H.N.S. Management Co., supra, 272 Conn. 98.
This criterion essentially has two subparts, namely, (1)
whether the defendant was created by legislation and
(2) whether such legislation included language indicat-
ing that the defendant be treated as a state agency. Our
review of the relevant statutes leads us to answer both
questions in the negative.
The formation of a regional educational service cen-
ter unquestionably is authorized by state statute. See
General Statutes §§ 10-66a through 10-66t. Section 10-
66a provides in relevant part: ‘‘A regional educational
service center may be established in any regional state
planning area designated in accordance with section
16a-4a upon approval by the State Board of Education
of a plan of organization and operation submitted by
four or more boards of education for the purpose of
cooperative action to furnish programs and services.
. . .’’ (Emphasis added.)
A careful reading of this enabling legislation, thus,
reveals that the defendant was not ‘‘created’’ by statute.
To ‘‘create’’ generally means to ‘‘bring into existence.’’
Merriam-Webster’s Collegiate Dictionary (11th Ed.
2003).11 Here, the legislature, through its enactment, did
not bring into existence the defendant or any other
regional educational service centers. It merely author-
ized boards of educations in interested municipalities
to join together to create such entities, albeit with
approval by the State Board of Education. If no munici-
palities exercise this statutory grant of authority, how-
ever, no regional educational service center would be
created. Thus, it is patently incongruent with the plain
language of the statute to conclude that the state ‘‘cre-
ated’’ the defendant.
Furthermore, we can find no statutory language from
which to conclude that the legislature intended entities
like the defendant to be treated like a state agent for
all purposes, and we reject the defendant’s argument to
the contrary. Section 10-66c (a) provides in relevant
part: ‘‘A regional educational service center shall be a
body corporate and politic. The board of a regional
educational service center shall be a public educational
authority acting on behalf of the state of Connecticut
and shall have the power to sue and be sued, to receive
and disburse private funds and such prepaid and reim-
bursed federal, state and local funds as each member
board of education may authorize on its own behalf, to
employ personnel, to enter into contracts, to purchase,
receive, hold and convey real and personal property
and otherwise to provide the programs, services and
activities agreed upon by the member boards of educa-
tion. . . .’’
The defendant argues that ‘‘the express language of
. . . § 10-66c demonstrates that [it] is an agent of the
state . . . .’’ The defendant focuses the thrust of its
argument on the language in subsection (a) of § 10-66c
that states that ‘‘[t]he board of a regional educational
service center shall be a public educational authority
acting on behalf of the state of Connecticut.’’ (Emphasis
added.) The defendant asserts that ‘‘acting on behalf
of the state’’ can only mean acting as an agent of the
state and, thus, entitling it to assert the state’s sover-
eign immunity.
The defendant, however, places far more weight on
this language than it will bear. Rather, as our Supreme
Court has made clear, an entity might act on behalf of
the state for some purpose and not others, and, thus,
the existence of this language does little to advance
the argument that the language could only have been
intended to convey a blanket grant of sovereign immu-
nity. Here, a plain reading of the language reveals only
that a regional educational service center acts on behalf
of the state when it exercises its duties as a ‘‘public
educational authority.’’ This undefined language simply
begs the question because local boards of education
also ‘‘are agents of the state responsible for education
in the towns . . . .’’ Palosz v. Greenwich, supra, 184
Conn. App. 207. Nevertheless, local boards of education
are not acting as agents of the state when they supervise
children. See Purzycki v. Fairfield, supra, 244 Conn.
112. The fact that the legislation authorizes the defen-
dant’s board to act on behalf of the state, therefore, is
not itself dispositive of whether the legislature also
intended to treat the defendant as a state agency, enti-
tled to all the rights and privileges of the state, including
sovereign immunity.
The plaintiff offers a reasonable justification as to
why the legislature included the ‘‘acting on behalf of
the state of Connecticut’’ language in the statute that has
nothing to do with cloaking entities like the defendant
in sovereign immunity. The ‘‘acting on behalf of the
state’’ language was not in the statute when it initially
was enacted in 1972. Rather, that language was added
to subsection (a) as a technical change to the statute
in 1987, at the same time the legislature added subsec-
tions (b) through (d), granting the regional educational
service centers the power to issue bonds, notes or other
obligations. Public Acts 1987, No. 87-460, § 1. The lan-
guage ‘‘acting on behalf of the state’’ is best construed
in light of those contemporaneous additions. Because
the Internal Revenue Code excludes from gross income
interest made on any state issued bonds; see 26 U.S.C.
§ 103 (a) (2012); it is reasonable to assume that the
legislature intended to designate regional educational
service centers as ‘‘acting on behalf of the state’’ in
order to allow them to reap the benefit of selling tax-
free bonds.
The defendant’s argument also fails to account for
the language in the statute that immediately precedes
the language authorizing a regional educational service
center to act ‘‘on behalf of the state,’’ namely, the lan-
guage designating such entities as a ‘‘body corporate
and politic.’’ We do not read statutory language in isola-
tion, but rather must consider it within the context of
the statute as a whole and in harmony with surrounding
text. Rather than creating either a state or municipal
agency, we construe the legislature’s use of the lan-
guage describing a regional educational service center
as a ‘‘body corporate and politic’’ as intending to create
an independent corporate entity that is separate and
distinct from state government. See Gordon v. Bridge-
port Housing Authority, 208 Conn. 161, 173, 544 A.2d
1185 (1988) (construing statute describing municipal
housing authorities as ‘‘body corporate and politic’’;
General Statutes § 8-40; as creating independent corpo-
rate entity that is not agent of municipality in which
it resides).
We turn next to the language that follows the ‘‘acting
on behalf of the state’’ language, namely, that regional
educational service centers have the ‘‘power to sue and
be sued.’’ We agree with the trial court that this language
supports a conclusion that the legislature intended that
a regional educational service center would not enjoy
sovereign immunity but, instead, would be subject to
suit in the same manner as other entities that do not
enjoy sovereign immunity. The language is not the type
that the legislature typically would use if it intended that
an entity be protected by sovereign immunity, which
protects the state not only from liability but from being
sued in the first instance.12
Arguably, the defendant, like a local board of educa-
tion, is authorized to act for the state in its role as a
provider of educational services to the citizens of the
state. ‘‘[T]he furnishing of education for the general
public, required by article eighth, § 1, of the Connecticut
constitution, is by its very nature a state function and
duty. . . . This responsibility has been delegated to
local boards which, as agencies of the state in charge
of education in the town . . . possess only such pow-
ers as are granted to them by the General Statutes
expressly or by necessary implication.’’ (Citation omit-
ted; emphasis added; internal quotation marks omitted.)
Campbell v. Board of Education, 193 Conn. 93, 96–97,
475 A.2d 289 (1984). Nevertheless, when it comes to
overseeing the day to day care of students enrolled in
one of its schools or other facilities, nothing in the
enabling legislation expressly states or of necessity
implies that regional educational service centers like
the defendant stand in any different position than the
municipalities that formed them and entrusted their
students to them. Although municipal boards of educa-
tion have been described as ‘‘agencies of the state in
charge of education in the town’’; (internal quotation
marks omitted) id., 97; municipalities are not entitled
to invoke sovereign immunity in a negligence action
brought by a student injured at a school under their
control. See Purzycki v. Fairfield, supra, 244 Conn.
111–12. We find unpersuasive the defendant’s reliance
on the ‘‘acting on behalf of the state of Connecticut’’
language as definitive proof that the legislature intended
the defendant to be treated as a state agent in all circum-
stances.
The enabling legislation does contain some express
language that strongly suggests that the legislature did
not intend ‘‘the entity be treated as a state agency’’ for
all purposes. Subsection (i) of § 10-66c provides: ‘‘A
regional educational service center shall be considered
an agency of the state for purposes of subdivision (14)
of subsection (d) of section 42a-9-109.’’ The defendant
ignores this language, however, likely because its exis-
tence undermines rather than bolsters the defendant’s
position.
In subsection (i), the legislature expressly states that
the defendant should be ‘‘considered an agency of the
state’’ for purposes of applying an exclusion in the Uni-
form Commercial Code with respect to secured transac-
tions, further details of which are not relevant to this
discussion. ‘‘[I]t is a basic tenet of statutory construc-
tion that [w]e construe a statute as a whole and read its
subsections concurrently in order to reach a reasonable
overall interpretation.’’ (Internal quotation marks omit-
ted.) Planning & Zoning Commission v. Freedom of
Information Commission, 316 Conn. 1, 12–13, 110 A.3d
419 (2015). Moreover, as we have already indicated,
‘‘the legislature [does] not intend to enact meaningless
provisions. . . . [I]n construing statutes, we presume
that there is a purpose behind every sentence, clause,
or phrase used in an act and that no part of a statute
is superfluous.’’ (Internal quotation marks omitted.)
Connecticut Podiatric Medical Assn. v. Health Net of
Connecticut, Inc., 302 Conn. 464, 474, 28 A.3d 958(2011).
If the language in subsection (a) of § 10-66c indicating
that the defendant was ‘‘acting on behalf of the state of
Connecticut’’ was intended by the legislature to convey
that the defendant generally was an agent of the state,
as opposed to merely acting with state authority in
certain instances or, as the plaintiffs suggest, permitting
favorable tax treatment with respect to bonds, there
would have been no need to mandate in subsection (i)
that the defendant be treated as a state agency for
purposes of the UCC secured transaction exclusion.
Construing the enabling legislation as a whole, we con-
clude with respect to the first of the Gordon criteria
that the defendant has not demonstrated that it was
created by the state or that the legislature intended
that it be treated as a state agency with respect to its
supervision of children attending its schools or
programs.
We turn next to the second criterion which asks
whether the defendant ‘‘was created for a public pur-
pose or to carry out a function integral to state govern-
ment . . . .’’ Gordon v. H.N.S. Management Co., supra,272 Conn. 98. As we have already indicated, it is a
constitutionally mandated core function of the state
to ensure that all students in the state are provided
with a minimally adequate education, which includes
providing special education services.13 Authorizing the
formation of regional educational service centers
undoubtedly was intended to provide local school
boards with a tool to more effectively and efficiently
fulfill this function. This second criterion, therefore,
seems to favor the position of the defendant.
The third factor to be considered is whether the
defendant ‘‘is financially dependent on the state . . . .’’
Id., 98–99. To answer this question, we look to our
statutes, the defendant’s constitution and bylaws, and
the factual admissions of the defendant at the hearing
on the motion to dismiss. Article III of the defendant’s
constitution provides that the defendant consists of
the member boards of education that pay dues to the
defendant in accordance with Article IX. Article IX,
titled ‘‘Dues and Administration Expenses,’’ provides
that the amount of dues are set every year by the defen-
dant’s representative council and that ‘‘[a]ny necessary
administrative and overhead expenditures as deter-
mined by the [r]epresentative council shall be shared
jointly by the participating [b]oards of [e]ducation.’’ At
the hearing on the motion to dismiss, the court asked
the defendant’s counsel about the manner in which the
defendant was funded, and counsel agreed with the
court that the regional educational service centers are
funded by the municipalities.
There is no dispute that, as a result of block grants,
each municipality receives funds from the state for the
purpose of discharging the educational requirements
of its residents and that some of this money flows to
the regional educational service centers. See General
Statutes § 10-262h and General Statutes § 10-66j (b).14
We do not view such indirect state funding, however,
as making regional educational service centers ‘‘finan-
cially dependent’’ on the state. The defendant made no
effort to demonstrate to what extent it relies on state
funding and the record before us is silent as to what
percentage, if any, of the regional educational service
centers funding comes directly through block grants as
opposed to funding through dues and tuition payments
by municipalities. Nevertheless, on the basis of the
record presented and the defendant’s own admissions,
it is clear that the local board, and not the state, is
directly responsible for much of the funding provided
to the defendant for its services.15 On balance, the third
criterion weighs in favor of the plaintiffs.
We address together the fourth and fifth factors,
namely, whether the defendant’s ‘‘officers, directors,
or trustees are state functionaries’’ and whether the
defendant ‘‘is operated by state employees . . . .’’ Gor-
don v. H.N.S. Management Co., supra, 272 Conn. 99.
We answer both questions in the negative.
Section 10-66b provides in relevant part: ‘‘The opera-
tion and management of any regional educational ser-
vice center shall be the responsibility of the board of
such center to be composed of at least one member
from each participating board of education, selected
by such board of education. The board of the regional
educational service center may designate from its mem-
bership an executive board which shall have such pow-
ers as the board of the regional educational service
center may delegate and which are consistent with this
part. . . . The director of the regional educational ser-
vice center shall serve as the executive agent of the
board of the regional educational service center.’’
The defendant’s constitution and bylaws, articles II
and III, make clear that it is governed by a representative
council that is made up of members from its constituent
local boards of education. Under article VI of the defen-
dant’s constitution, officers are chosen annually from
among the members of the representative council.
These requirements are statutorily mandated. See § 10-
66b (‘‘[t]he operation and management of any regional
educational service center shall be the responsibility
of the board of such center to be composed of at least
one member from each participating board of educa-
tion, selected by such board of education’’). No one
from the state Board of Education or any other ‘‘state
functionaries’’ or state employees are ‘‘officers, direc-
tors, or trustees’’ of the defendant or are involved in
the operation of the defendant’s programs or services.
The fourth and fifth criteria accordingly weigh against
a finding that the defendant is an agent of the state.
Pursuant to the sixth and seventh Gordon factors,
we consider whether ‘‘the state has the right to control
the [defendant]’’ or whether the defendant’s ‘‘budget,
expenditures, and appropriations are closely monitored
by the state . . . .’’ Gordon v. H.N.S. Management Co.,
supra, 272 Conn. 99–100. As we already have indicated,
the defendant is under the managerial control of the
participating municipal boards of education that formed
it. There is nothing in the record before us suggesting
that the state has any direct oversight or control over
the defendant, its property or its operations other than
to conduct an annual audit of finances and evaluation
of programs and services. General Statutes §§ 10-66g
and 10-66h. There is no requirement in the defendant’s
bylaws requiring that budgets, expenditures, or appro-
priations be reported to the state Board of Education
for approval or that the state ‘‘closely’’ monitor its day-
to-day operations at regional educational service cen-
ters. The lack of state involvement in the regular man-
agement of the regional education service centers leads
us to conclude that the sixth and seventh criteria also
weigh strongly against the defendant’s position that it
is entitled to sovereign immunity because litigation
could not seriously be expected to interfere with the
performance of any important state function or its con-
trol over state instrumentalities, funds or property.
Finally, we must consider whether ‘‘a judgment
against the [defendant] would have the same effect as
a judgment against the state.’’ Gordon v. H.N.S. Man-
agement Co., supra, 272 Conn. 100. A finding of liability
against the defendant in favor of the plaintiffs likely
would result in an award of monetary damages. Such
damages would be assessed against the defendant and
would become an operating expense of the defendant
that ultimately would be paid by the municipalities in
accordance with article IX of the defendant’s constitu-
tion. A judgment against the defendant would not have
a direct adverse effect on the state. In contrast, a judg-
ment against the state would mean that the state itself
would be responsible for paying damages, presumably
out of the state’s coffers. This eighth criterion thus
seems to weigh against concluding that the defendant
is an agent of the state.
In sum, the majority of the Gordon criteria weigh
against a finding that the defendant is an entity entitled
to the protections of sovereign immunity. Having con-
sidered and weighed the various Gordon criteria, and
considering them in light of the circumstances pre-
sented in this case, we conclude that the defendant
acts as an agent of its constituent municipal boards of
education, not the state, when overseeing the care and
safety of children enrolled in its schools and programs.
It truly would be a bizarre result to construe the relevant
statutes as conferring sovereign immunity to the defen-
dant, if, under identical facts, a municipality would not
be so entitled.
The present litigation simply cannot reasonably be
viewed as representing the type of serious interference
with a state’s function or control that justifies the
‘‘strong medicine’’ of sovereign immunity. (Internal quo-
tation marks omitted.) See Rocky Hill v. SecureCare
Realty, LLC, supra, 315 Conn. 283. Conferring such
immunity could also have unintentional and unwanted
consequences. Recognizing a blanket shield protecting
regional educational service centers in all tort actions,
for instance, could disincentivize them from engaging in
the types of oversight and control necessary to protect
students with special needs, a particularly vulnerable
class of persons. Because the defendant is not entitled
to the protection of sovereign immunity in this negli-
gence action, the court properly denied the defendant’s
motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In addition to the defendant, the operative revised complaint named as
additional defendants the town of Trumbull; the Trumbull Board of Educa-
tion; Timothy M. Herbst, the first selectman of Trumbull; Ralph Iassogna,
Trumbull’s superintendent of schools; Cooperative Educational Services
Foundation, Inc.; the city of Bridgeport; Bill Finch, the mayor of Bridgeport;
the Bridgeport Board of Education; and Paul Vallas, Bridgeport’s superinten-
dent of schools. The plaintiffs withdrew the action as to Herbst, Iassogna,
the town of Trumbull, the Trumbull Board of Education, and Cooperative
Educational Services Foundation, Inc. The court later granted summary
judgment in favor of Finch, Vallas, the city of Bridgeport, and the Bridgeport
Board of Education. Thus, Cooperative Educational Services is the sole
remaining defendant in this action and, accordingly, we refer to it as the
defendant throughout this opinion.
2
Although, ordinarily, the denial of a motion to dismiss is not an immedi-
ately appealable final judgment, the denial of a motion to dismiss that raises
a colorable claim of sovereign immunity is a final judgment. See Shay v.
Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000) (‘‘unless the state is permitted
to appeal a trial court’s denial of its motion to dismiss, filed on the basis
of a colorable claim of sovereign immunity, the state’s right not to be required
to litigate the claim filed against it would be irretrievably lost’’), overruled
in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d
549 (2003).
3
A gait belt is a device used by caregivers to prevent falls when assisting
the movement of persons who have mobility issues, problems with balance,
or other medical conditions.
4
The defendant argues in its brief before this court that the gravamen of
the plaintiffs’ negligence allegations against the defendant do not actually
involve a failure by itself or its agents to supervise the minor plaintiff, but
rather concern ‘‘a failure to comply with [her] individualized needs as a
special education student.’’ By making this argument, the defendant seeks
to differentiate between inadequate supervision of school children, which
is decidedly a municipal function; see Purzycki v. Fairfield, 244 Conn.
101, 112, 708 A.2d 937 (1998), overruled on other grounds by Haynes v.
Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014); and the development
or furnishing of special education services generally, which arguably has a
closer nexus to a state function. See M.H. v. Bristol Board of Education,
169 F. Supp. 2d. 21, 38 (D. Conn. 2001). A reading of the specifications of
negligence in the operative complaint, however, belies the defendant’s
argument.
In particular, the plaintiffs alleged that the defendant had failed (1) to
hire and train properly its staff tasked with supervising minor children, (2)
to supervise properly persons they assigned to escort students who required
the use of gait belts, (3) to implement safety guidelines with respect to
students requiring the use of specialized equipment, (4) to implement proper
training for employees or agents assigned to children who needed to use
specialized equipment, (5) to have adequate numbers of employees or agents
in place to monitor student activities in the parking lot, and (6) to require
as a condition of funding that their agents assured any persons charged
with providing services were trained and supervised properly.
5
A waiver of sovereign immunity in a suit seeking money damages requires
either a clear legislative intent to waive sovereign immunity; see Miller v.
Egan, supra, 265 Conn. 314; or a granting of waiver by the claims commis-
sioner pursuant to General Statutes § 4-160.
6
According to the defendant’s website, the defendant consists of school
board members from the following municipalities: Bridgeport, Darien, Eas-
ton/Region #9, Fairfield, Greenwich, Monroe, New Canaan, Norwalk, Ridge-
field, Redding, Shelton, Stamford, Stratford, Trumbull, Weston, Westport,
and Wilton. Cooperative Educational Services, About C.E.S., ‘‘Representative
Council,’’ available at https://www.ces.k12.ct.us/page.cfm?p=3393 (last vis-
ited November 29, 2018). It is not clear from the current record which of
these municipalities was involved in the formation of the defendant.
7
Although discussed at the hearing before the trial court, nothing in this
opinion should be read as addressing whether the defendant might be enti-
tled to invoke qualified governmental immunity pursuant to General Statutes
§ 52-557n (a) (2) (B) or whether the ‘‘identifiable person-imminent harm’’
exception to governmental immunity is implicated and applicable under the
facts of this case. See Edgerton v. Clinton, 311 Conn. 217, 229–31, 86 A.3d
437 (2014).
8
It is axiomatic that our objective in construing statutory language ‘‘is to
ascertain and give effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned manner, the meaning of
the statutory language as applied to the facts of [the] case, including the
question of whether the language actually does apply. . . . General Statutes
§ 1-2z directs us first to consider the text of the statute itself and its relation-
ship to other statutes. If, after examining such text and considering such
relationship, the meaning of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual evidence of the meaning
of the statute shall not be considered. . . . [If] a statute is not plain and
unambiguous, we also look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the legislative policy it
was designed to implement, and to its relationship to existing legislation
and common law principles governing the same general subject matter
. . . . The test to determine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable interpretation.’’ (Internal
quotation marks omitted.) Gonzalez v. O & G Industries, Inc., 322 Conn.
291, 302–303, 140 A.3d 950 (2016).
9
Specifically, the court in Dolnack stated: ‘‘Several factors for consider-
ation have evolved in determining whether a given entity is an arm of the
government entitled to be clothed in the tort immunity of the state. These
inquiries include whether the entity was created by the state and to whose
control the entity is subject, an analysis of the issues involved and the relief
sought, whether the state itself has a pecuniary interest or a substantive
right in need of protection, whether the governmental body functions state-
wide, does the state’s work, was created by the state legislature and is
subject to local control, and to what extent the entity depends financially
on state coffers, and whether the instrumentality was created as a state
agency and empowered to accomplish a public purpose. Some other consid-
erations are the character of power delegated to the governmental body by
a legislative enactment, the relation of the entity to the state, whether the
entity is a public corporation separate from the state, and whether the
instrumentality uses state owned land or owns the land independently.’’
(Footnotes omitted; internal quotation marks omitted.) Dolnack v. Metro-
North Commuter Railroad Co., supra, 33 Conn. App. 836–37.
10
In the present appeal, neither the trial court nor the parties have cited
to Gordon or utilized the criteria set forth in that case and its progeny.
Nevertheless, the analytical framework used by our Supreme Court in Gor-
don is binding upon us and many of the parties’ arguments in the present
case fall sufficiently within one or more of the Gordon criteria. See also
Turner v. Eastconn Regional Educational Service Center, United States
District Court, Docket No. 3:12-CV-788 (VLB) (D. Conn. Mar. 15, 2013) (ana-
lyzing Gordon criteria in determining that regional education service center
not state agent for purposes of sovereign immunity); Bogle-Assegai v.
Bigelow, United States District Court, Docket No. 3:01-CV-2366, Docket No.
3:01-CV-2367 (EBB) (D. Conn. Oct. 25, 2007) (same).
11
There is no statutory definition of ‘‘create’’ to consult and, therefore,
General Statutes § 1-1 (a) directs us to use the ‘‘commonly approved usage’’
of that word. In so doing, courts frequently look to the dictionary definition
of a term. See, e.g., Kuchta v. Arisian, 329 Conn. 530, 537, 187 A.3d 408(2018) (‘‘[i]n the absence of a statutory definition . . . our starting point
must be the common meaning of the term, as reflected in the dictionary’’).
12
The defendant also argues in its brief that the legislature, in enacting
§ 10-66c, did not waive the state’s sovereign immunity by providing that the
defendant has the ‘‘power to sue and be sued.’’ Although the trial court
referred to the ‘‘sue and be sued’’ language as supporting its conclusion that
the defendant was not entitled to invoke sovereign immunity, the court did
not base its denial of the motion to dismiss on a finding of waiver. Because
we conclude that the defendant is not an entity entitled to the protection of
sovereign immunity under the circumstances before us, we do not consider
whether sovereign immunity was waived. Instead, we construe this language
as evincing an intent that the defendant is not to be treated as an agent of
the state for all purposes.
13
The constitution of Connecticut, article eighth, § 1, provides: ‘‘There
shall always be free public elementary and secondary schools in the state.
The general assembly shall implement this principle by appropriate legisla-
tion.’’ General Statutes § 10-4 (a) provides in relevant part that the state’s
Board of Education ‘‘shall have general supervision and control of the educa-
tional interests of the state, which interests shall include preschool, elemen-
tary and secondary education, special education, vocational education and
adult education . . . .’’
14
General Statutes § 10-262h provides in relevant part that ‘‘each town
maintaining public schools according to law shall be entitled to an equaliza-
tion aid grant’’ and sets forth in detail how the amount of the grant is to
be calculated.
General Statutes § 10-66j (b) provides: ‘‘Each regional educational service
center shall receive an annual grant equal to the sum of the following:
‘‘(1) An amount equal to fifty per cent of the total amount appropriated
for purposes of this section divided by six;
‘‘(2) An amount equal to twenty-five per cent of such appropriation
multiplied by the ratio of the number of its member boards of education
to the total number of member boards of education state-wide; and
‘‘(3) An amount equal to twenty-five per cent of such appropriation
multiplied by the ratio of the sum of state aid pursuant to section 10-262h
for all of its member boards of education to the total amount of state aid
pursuant to section 10-262h state-wide.’’
15
In considering this factor and whether the defendant is financially depen-
dent on the state, we note that municipalities also receive directly significant
funding from the state for the purposes of fulfilling their state-mandated
obligation to provide educational services. See General Statutes § 10-262h.
Accordingly, the mere fact that regional educational service centers also
receive state funds does not compel a conclusion that they are state agents
for all purposes because, if that were true, the municipal boards of education
also would be state agencies simply because they receive significant educa-
tional funding from the state to educate all students.