Opinion
UWYCV175018503S
04-06-2018
EDUCATION CONNECTION v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT et al.
UNPUBLISHED OPINION
PELLEGRINO, J.T.R.
I.
Procedural and Factual Background
This is an unemployment appeal by the plaintiff, Education Connection, from the decision of the Employment Security Appeals Board of Review (" the Board" ) which determined that an employee, Jose M. Cora (" the claimant," ) who was employed as a bus driver transporting special needs students for the plaintiff, was entitled to unemployment benefits during a period commonly referred to as the " between-term," that is the period between academic years. On the other side of this appeal is the defendant, the Administrator of the Unemployment Compensation Act.
The following facts are not disputed. The claimant was employed as a bus driver for special needs students during the 2015-2016 school year, and he was offered employment for the 2016-2017 school year. During the " between-term," the period between academic years, from June 8, 2016, to September 2, 2016, the claimant accepted two individual assignments to transport students for which he was paid, and which have no bearing to this appeal. The claimant filed for unemployment benefits for the period he was not working in the " between-term" of the academic years 2015-2016, and 2016-2017, the result of which is the subject of this appeal. The Appeals Referee (referee) determined that the plaintiff was not an " educational institution," and, thus, was not subject to the exclusionary provision of § 31-227(d) which exempts employees of educational institutions that have an expectancy of employment in the " between-term" period from receiving unemployment benefits. In so determining, the referee applied the three-part test contained in the Board’s decision of Dominique v. Eastconn, Board Case No. 1797-85 B.R. (March 18, 1986) (decision of Employment Security Appeals Board of Review), which provides that an educational institution exists if it offers (1) an organized course of study or training through instructors or teachers which is (2) academic, technical, trade or preparation for gainful employment in a recognized occupation and is (3) approved, licensed or issued a permit to operate as a school by the State Department of Education or other government agency, that is authorized within the state to approve, license, or issue a permit for the operation of a school. The referee noted that a critical factor to be considered is what the employer actually does. The referee determined that the employer was not an educational institution as the claimant worked as a bus driver, and the provision of transportation services to special education students did not satisfy the above three-part test. The plaintiff appealed to the Board, which adopted the referee’s findings of fact, and later corrected relevant findings upon motion. The Board found, inter alia, that the plaintiff was a Regional Educational Service Center (RESC) organized pursuant to General Statutes § 10-66a et seq. In its decision, the Board reiterated that the critical factor to be considered in determining whether an employer is an educational institution is what the employer actually does. The Board further noted that " not every program offered by a regional education service agency qualifies as an educational institution," and, that, such a determination was made on a case by case basis. This notwithstanding, the decision of the referee was affirmed by the Board on the same grounds: the plaintiff, in its capacity of providing transportation to special needs students, was not an educational institution. This appeal followed.
The Board of Review’s findings of fact, adopting the Referee’s findings and modifying them consistent with the employer’s motion to correct are as follows:
The plaintiff filed a memorandum in support of their appeal on July 27, 2017, and the defendant opposed this appeal and filed a motion for judgment requesting affirmation of the Board’s decision on September 25, 2017. The matter was heard before this court on January 19, 2018. Subsequently, however, the defendant filed another motion for judgment on February 7, 2018, conceding that the Board applied the improper standard and requesting remand to determine additional factual issues. The plaintiff filed a memorandum in partial opposition on February 14, 2018, and the defendant filed a reply on February 16, 2018.
II
Discussion
" In the processing of unemployment claims ... the administrator, the referee and the employment security board of review decide the facts and then apply the appropriate law ... [The administrator] is charged with the initial responsibility of determining whether claimants are entitled to unemployment benefits ... This initial determination becomes final unless the claimant or the employer files an appeal within twenty-one days after notification of the determination is mailed ... Appeals are taken to the employment security appeals division which consists of a referee section and the board of review ... The first stage of claims review lies with a referee who hears the claims de novo. The referee’s function in conducting this hearing is to make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions ... of the law ... This decision is appealable to the board of review ... Such appeals are heard on the record of the hearing before the referee although the board may take additional evidence or testimony if justice so requires. Any party, including the administrator, may thereafter continue the appellate process by appealing to the Superior Court and, ultimately, to [the Appellate and Supreme Courts]." (Citations omitted; internal quotation marks omitted.) Ray v. Administrator, Unemployment Compensation Act, 133 Conn.App. 527, 531-32, 36 A.3d 269 (2012).
The court is aware that it is unable to change or correct any facts found by the Board and any conclusion it reached based on those facts, unless the facts found and the conclusions made therefrom are unreasonable, arbitrary, illegal or an abuse of discretion. " To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry facts nor hear evidence ... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal, or an abuse of discretion." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996).
In its memorandum in support of its appeal, the plaintiff asserts that the board erred in ruling that it was not an " educational institution" pursuant to § 31-227(d). The plaintiff asserts that the Board misinterpreted § 31-227, and, in so ruling, based its determination on the status of the claimant, rather than on that of the employer. The plaintiff asserts that the decision of the board is inapposite to the current statutory scheme, and ignores, or renders meaningless, language within the statute that exempts persons working " in any other capacity" for an educational institution from eligibility for unemployment compensation benefits. The defendant initially opposed the appeal, but now moves for remand. The defendant concedes that " [i]t is apparent from both the Referee’s decision and the Board’s decision, that the sole focus in determining whether plaintiff is an educational institution was improperly only on the function the claimant performed for the employer." Def.’s Reply (Docket # 113). Accordingly, the defendant asks for remand to determine several issues including " in applying the [three]-prong test, what is the nature of what the [plaintiff] actually does, including its main function, not limited to the particular claimant’s job duties." Defendant’s Motion for Judgment (Docket # 111). The plaintiff partially objects, arguing the record is sufficient to make a determination, but does not oppose a remand if there is doubt as to what the plaintiff is, or does. The defendant, in reply, contends that remand is needed as it is clear there is error, and additional findings are necessary to make a new determination. For the reasons to follow, the court remands the case to the Board to apply the proper standard and to find additional facts, including what the plaintiff actually does, as well as any other findings and determinations it deems necessary.
The plaintiff also contends that the Board of Review erred in refusing to correct its findings with respect to its second finding of fact concerning the scope and nature of the employer’s programs. The plaintiff requested that the second finding of fact be revised to provide: " While the employer operates its business year [round], its program and services are largely based upon academic terms, in light of its role as an educational institution and consistent with schedules and needs of the RESC member school districts. As with any school employer/educational institution, the employer operates and provides certain additional programs and services between the academic years (e.g., services for special education students who may be receiving an ‘extended school year/summer programming’ )." (Emphasis representing proposed changes.) As noted by the defendant, however, much of this information is contained in the other findings of fact; see footnote one of this memorandum of decision; and the plaintiff’s status as an educational institution is the ultimate legal conclusion that must be made: it is not a mere fact to be found. Regardless, in light of this court’s conclusion, infra, the court believes that this issue will be adequately addressed upon remand.
The defendant also moves to remand to determine the following additional issues: (1) whether the plaintiff is a governmental authority, 501(c)(3) nonprofit, or an Indian tribe so that the claimant’s services for the employer constitute " employment" within the meaning of General Statutes § § 31-222(a)(1)(c) & (d) as that term is used in the first clause of § 31-227(d); and, (2) has the plaintiff been approved, licensed or issued a permit to operate as a school by the State department of education or a government agency authorized to do the same. The plaintiff, in its objection, states that the record is sufficient to make determinations on the requested remand issues. Specifically, the plaintiff contends based on the board’s findings, the plaintiff’s status as a RESC, and the statutes under which it is organized, there is no need to remand to determine whether the plaintiff is a governmental entity, and whether it is approved by the Department of Education. As noted in the body of this memorandum of decision, however, the court deems the record insufficient to determine these various issues, as the Board, through its constrained approach, left the record in an insufficient state for the court to make its own determination. The board must be the party to apply the proper standard in the first instance; Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act, 324 Conn. 822, 844, 155 A.3d 738 (2017); and this court cannot reweigh evidence in the record, Pajor v. Administrator, Unemployment Compensation Act, 174 Conn.App. 157, 170, 162 A.2d 265, cert. denied, 327 Conn. 977, 174 A.3d 801 (2017). Even so, the court will address these issues with greater specificity. The court notes that while the plaintiff could arguably be a governmental authority or political subdivision pursuant to § 31-222(a)(1)(c), the record as to this issue is limited, and other courts, albeit in different contexts, have had mixed results in determining whether a RESC is such an entity. See Austin v. Greater Hartford Academy of the Arts, Superior Court, judicial district of Hartford, Docket No. CV-15-6058258-S (July 19, 2016, Huddleston, J.) (striking claims against RESC on basis of sovereign immunity in part due to fact that they were " a political subdivision of the state," based on § 10-66a); Bogle-Assegai v. Bigelow, United States District Court, Docket Nos. 3:01CV2366 (EBB), D:01CV2367 (EBB) (D.Conn. October 25, 2007) (RESC was not an arm of the state entitled to sovereign immunity); Sanchez v. Capitol Region Education Council, Superior Court, judicial district of Hartford, Docket No. CV-00-0598554-S (April 6, 2001, Fineberg, J.) (29 Conn.L.Rptr. 312, n.1) (defendant RESC was a state actor for purposes of sovereign immunity analysis but was not a political subdivision of the state for purposes of liability under § 52-557n[a][2][B] ). Based on this, and absent clear authority, the court finds the record insufficient to make such a determination of its own accord. Furthermore, as noted by the defendant, it does not necessarily follow that just because a RESC is a " body and corporate politic," a " public educational authority," and a " Local Educational Agency," pursuant to General Statutes § 10-66c, that it is also a governmental authority for purposes of the labor statute, § 31-227(d). See New Britain v. Administrator, Unemployment Act, Superior Court, judicial district of New Britain, Docket No. CV-06-4009163-S (June 20, 2006, Shaban, J.) (41 Conn.L.Rptr. 555) (although city was a school district it did not necessarily follow that a school district was an educational institution as defined under § 31-227). Accordingly, the court finds the facts in the record inadequate to make a determination as to this issue. As to the other issue, whether the plaintiff is licensed to operate as a school, the court similarly declines to decide this issue. While the RESC statues do provide that they, as entities, are approved by the Department of Education, there is no indication that they are specifically authorized to act as a school. Absent such a finding, a clear provision in the statute, or authority that stands for the same, the court is unable to decide this issue here. See New Britain v. Administrator, Unemployment Act, supra, 41 Conn.L.Rptr. 555. The lower proceedings’ findings of fact are mostly limited, and do not touch the issue of whether the plaintiff is a governmental authority under § 31-222(a), nor if they were licensed to operate as a school. Consequently, these issues are better dealt with upon remand, to be decided with the most important consideration: what the plaintiff actually does.
The court first addresses whether the Board of Review applied § 31-227 correctly, which presents a question of statutory interpretation. In such a circumstance, the court’s standard of review is plenary. " Statutory construction is a question of law over which we exercise plenary review ... When interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship 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. General Statutes § 1-2z." (Citations omitted; internal quotation marks omitted.) Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 755, 911 A.2d 736 (2006). However, " [w]hen 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 ... A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) State v. Thompson, 307 Conn. 567, 577-78, 57 A.3d 323 (2012).
" [W]hen interpreting provisions of the act, we take as our starting point the fact that the act is remedial and, consequently, should be liberally construed in favor of its beneficiaries ... Indeed, the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases. General Statutes § 31-274(c)." (Internal quotation marks omitted.) Tuxis Ohr’s Fuel, Inc. v. Administrator, Unemployment Compensation Act, 309 Conn. 412, 423, 72 A.3d 13 (2013). It has also been noted that " exemptions to statutes are to be strictly construed ... Nevertheless, the act should not be construed unrealistically in order to distort its purpose." (Citation omitted; internal quotation marks omitted.) Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act, 320 Conn. 611, 616-17, 134 A.3d 581, 586 (2016).
General Statutes § 31-227(d) provides in relevant part that " [b]enefits based on service in employment defined in subdivisions (1)(c) and (D) of subsection (a) of section 31-222 shall be payable in the same amount, on the same terms and subject to the same conditions as compensation payable on the basis of other service subject to this chapter; except that ((1) ... benefits shall not be paid based on service performed in an instructional, research or principal administrative capacity for an educational institution for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive ... and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms; (2) ... for service performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms ..."
In the present case, both the referee and the Board applied § 31-227 erroneously. In the matter below, the board stated that " the claimant worked as a bus driver for the subject employer in its capacity of transporting special education students" and went on to hold that, as a result, " the subject employer does not qualify as an educational institution ..." In so holding, the board inappropriately based its determination of whether the plaintiff was an educational institution on the status of the claimant rather than on the status of the employer. There is nothing contained in § 31-227 that suggests that an educational institution should be defined as it relates to the claimant. Indeed, the board’s holding here essentially renders § 31-227(d)(2) meaningless. " Interpreting a statute to render some of its language superfluous violates cardinal principles of statutory interpretation. It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions." (Internal quotation marks omitted.) American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008). Because " [e]very word and phrase [of a statute] is presumed to have meaning" ; Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002); § 31-227(d) must be construed, " if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Under the board’s formulation in this case any non-instructional role, or program, would not qualify as an " educational institution," despite § 31-227(d)(2) clearly providing that an employee serving an educational institution in " any other capacity" may be exempt. Indeed, the Board itself has noted that educational institutions that do not exclusively offer educational programs can still qualify for exemption under § 31-227(d). See Mangiafico v. Blueridge, Board Case No. 1370-BR-00 (January 25, 2001) (decision of Employment Security Appeals Board of Review). As noted by the plaintiff, the Board has not micro-divided the functions of other institutions in such a manner to the point where an inordinate focus is placed upon the job of the claimant. For example, in Zapata v. Weston Board of Education, Board Case # 1313-BR-15 (November 30, 2015) (decision of Employment Security Appeals Board of Review), the Board held that an individual employed by a local school district as a bus driver was employed by an educational institution and was subject to exemption eligibility; this determination was not based on the school district’s status as a provider of transportation services, as here. See also Dominique v. Eastconn, Board Case No. 1797-85-BR (3/18/86) (RESC was an educational institution). Accordingly, the board erred. In determining whether an entity is an " educational institution" the plaintiff and defendant have argued, and the court agrees, that the Board’s focus should be on what the plaintiff actually does, including its main function, not limited to the job of the claimant, and, if the employer is an educational institution, § 31-227(d)(1) or (2) should then be applied based on the nature of the claimant’s job. The court now addresses the issue of remand.
As an additional matter, it should be that this inappropriate focus on the function of the claimant has seemingly occurred as the result of the board micro-dividing the functions of a RESC to determine whether each function or program offered constitutes an " educational institution." Such an interpretation, however, seemingly results in the term " institution" being rendered superfluous. See
The defendant moves to remand to determine, inter alia, what the employer actually does, including its main function, not limited to the claimant’s job duties. See also footnote three of this memorandum of decision for additional requested remand issues. The board did make some findings of fact as to this issue; see footnote one; including that the employer offers a variety of services such as special education, head start services, professional development and training, adult education, and transportation services to certain school districts. Additionally, the underlying record contains information on, and listings of, the various programs and services offered by the plaintiff. While this information may be indicative of what the plaintiff’s function may be, the court finds it insufficient to make the determination as to the plaintiff’s status as an educational institution at this limited stage of review. The facts in this matter are limited due to the Board’s misapprehension of the legal standard insofar as it afforded dispositive weight to the function of the claimant. Accordingly, a remand is required for fact-finding in accordance with the proper standard. In a somewhat procedurally similar case, Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act, 324 Conn. 822, 155 A.3d 738 (2017), our Supreme Court remanded the case before them to the Board as it ultimately concluded that the Board inappropriately focused on the wrong factors in applying the test to determine if the claimants employed by the employer in that matter were independent contractors. The court articulated that remand was required as " [t]he board’s decision was based on a misapprehension of the governing legal standard insofar as it afforded dispositive weight to the lack of evidence that [the claimants] performed services for third parties, despite the ample evidence suggesting that they had independent business enterprises. Accordingly, we conclude that remand to the board is required for fact-finding in accordance with the proper legal standard." (Footnote omitted.) Id., 844. See also Almada v. Administrator, 137 Conn. 380, 391-92, 77 A.2d 765 (1951) (remanding case to board to find additional facts court noting that " [i]f [the board] ha[s] failed to make a finding of fact on any issue on which a finding is necessary to support their conclusion of law, the case should be remanded to them to make a finding as to what the fact is upon that issue" ). Similarly, here, the board afforded dispositive weight to the claimant’s function, with little attention as to what the plaintiff actually does, despite evidence that the plaintiff may generally operate as an educational institution. Consequently, remand is necessary to make additional determinations and for the Board to apply the proper standard in the first instance. Ultimately, the Board made only one finding of fact which references several programs, but does not make note of the plaintiff’s main function. Additional findings and reconsideration on remand are necessary to make such a determination. Indeed, it has been noted that " [w]hile the court cannot make a finding as a substitute for the commissioners, it may when the evidence calls for it, remand the case to the commissioners for a rehearing and finding of facts in accordance with the evidence." Cennamo v. Administrator, 22 Conn.Supp. 302, 306, 170 A.2d 739 (1961). The court cannot reweigh the facts that are in evidence; Pajor v. Administrator, Unemployment Compensation Act, 174 Conn.App. 157, 170, 162 A.2d 265, cert. denied, 327 Conn. 977, 174 A.3d 801 (2017); nor can it base conclusions off of facts the board did not find, Ray v. Administrator, supra, 133 Conn.App. 534. Because of the foregoing this court lacks a factual basis from which it could reach a conclusion as to whether the plaintiff is an educational institution. United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 389, 551 A.2d 724 (1988). Accordingly, remand is necessary to avoid invading the board’s fact-finding province. See Southwest Appraisal Group, LLC v. Administrator, supra, 844 n.15. Should the board deem an additional remand to the referee is needed it may do so pursuant to General Statues § 31-249.
III
Conclusion
For the foregoing reasons, this matter is remanded to the Board to make additional findings of fact not inconsistent with this opinion, including the reapplication of the three-prong test; with particular attention to be given to what the plaintiff actually does and its main function, not limited to the claimant’s job duties.
1. The subject employer is a regional educational service center (’RESC’) organized and operating under Connecticut General Statutes § 10-66a et seq. A RESC is a " body and corporate politic" and a " public educational authority," pursuant to Connecticut General Statutes § 10-66c, and is created by local and regional boards of education that are members of the subject employer. The member boards of education select and serve on the subject employer’s Board of Directors, and select the programs services, and activities that the RESC provides. The boards of education pay membership fees based on the number of students in their district to cover administrative expenses, and also pay for additional services on a pro rata basis. The subject employer, Education Connection, offers a variety of services such as: special education, Head Start Services, professional development and training, adult education, and transportation services to certain school districts of Connecticut.
2. The employer operates its business year round.
3. On December 24, 2012, the State Department of Education confirmed that the employer is a duly approved Regional Educational Service Center. The State Department of Education further confirmed that state statutes concerning education apply to the operation of Regional Education Service Centers, including Education Connection. In addition, Education Connection is considered to be a Local Education Agency (LEA) pursuant to General Statutes Section 10-66a.
4. The claimant worked as a full-time driver for the special education needs students during the 2015-2016 academic year.
5. The claimant ceased working on June 8, 2016, as the academic year had ended.
6. The employer subsequently offered the claimant two driving assignments during the summer of 2016. The claimant worked from July 5, 2016, to August 12, 2016, and July 6, 2016, through August 10, 2016.
7. On May 5, 2016, the employer made an offer of rehire for the 2016-2017 academic year. The claimant accepted this offer of work on May 5, 2016.
8. The claimant is expected to work again as a driver between August 25, 2016 and September 2, 2016, when classes resume for the new academic year.
Hatt v. Burlington Coat Factory, supra, 263 Conn. 310. The term " institution," educational or otherwise, is not explicitly defined anywhere within the General Statutes. Because of this the court turns to General Statutes § 1-1(a), which provides in relevant part: " In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language ... We look to the dictionary definition of the [term] to ascertain [its] commonly approved meaning." (Footnote omitted; internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 17-18, 950 A.2d 1247 (2008). Black’s Law Dictionary defines " institution" as " [a]n established organization, esp. one of a public character, such as a facility for the treatment of mentally disabled persons." Black’s Law Dictionary (7th Ed. 1999). This definition suggests an autonomous body that is not necessarily divisible. Furthermore, there is nothing in § 31-227 from which it can be inferred that an entity that otherwise would qualify as an " educational institution" would be excluded simply because of some program or function that is non-educational in nature, notwithstanding what the organization principally does. Accordingly, while a case-by-case interpretation may at times be warranted, micro-division of the type engaged in here resulted in exclusive focus being put upon the status of the claimant, which is inappropriate.