Opinion
HHBCV166033504S
08-28-2017
Charles Bryant v. Police Officer Standards and Training Council, Department of Emergency Services and Public Protection
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Charles Bryant, challenges the decision of the defendant Police Officer Standards and Training Council Division of the Department of Emergency Services and Public Protection (council), which revoked his certification as a probationary candidate under the authority of General Statutes § § 7-294d(c)(2)(I), 7-294d(c)(2)(B), and 7-294d(c)(2)(C). The plaintiff had previously resigned his position to avoid being fired as a result of an internal affairs investigation. The council claims that the plaintiff's appeal is moot because it cannot certify a person who is not actively employed as a police officer and General Statutes § 7-291c precludes any police department from hiring an officer who has previously resigned as a result of an internal affairs investigation. The plaintiff argues, to the contrary, that because § 7-291c became effective on October 1, 2015, after the plaintiff's resignation, application of § 7-291c to the plaintiff would be impermissibly retroactive under decisions of the United States Supreme Court and our own Supreme Court. The plaintiff further argues that the council (1) impermissibly determined that it would " never again" certify the plaintiff as a police officer; (2) impermissibly shifted the burden of proof at the de novo hearing to the plaintiff and predetermined its outcome; and (3) reached conclusions that are not supported by clear and convincing evidence in the record, as required by General Statutes § 7-294d(c)(2).
After consideration of all the evidence in the record and the relevant legal authorities, the court concludes that the plaintiff's appeal is not moot because General Statutes § 7-291c cannot be applied retrospectively to preclude his possible future employment as a police officer. Addressing the merits of the plaintiff's claims, the court further concludes, however, that the plaintiff failed to establish that the council impermissibly shifted the burden of proof to him or predetermined the outcome of the de novo hearing. He also failed to establish that the council's findings under General Statutes § § 7-294d(c)(2)(B) and (C) are improper under the applicable burden of proof and standard of review. Because either of those findings, standing alone, would adequately support the council's decision, the court need not address the plaintiff's claims of error under General Statutes § 7-294d(c)(2)(I). The plaintiff's appeal is therefore dismissed.
I
FACTS AND PROCEDURAL HISTORY
The following facts and procedural history are set out by the council's hearing officer in a report and proposed final decision issued on December 8, 2015. Record (R.), pp. 181-96. These facts are supported by the evidence in the record, also cited herein.
The plaintiff, Charles M. Bryant III, was appointed as a probationary candidate with the New Haven Police Department (department) on November 10, 2014, and became a member of the New Haven Police Academy Session 192-NH. As required by General Statutes § 7-294d, all training was approved in advance by, and conducted under the authority of, the council. R., p. 183.
In applying for a position with the department, the plaintiff reviewed, completed, and signed a number of forms that stated the importance of honesty in the application process. R., p. 193. More specifically, on August 12, 2014, he signed the " New Haven Police Department Police Officer Applicant Questionnaire (Long Form)" (applicant questionnaire), R., pp. 137-46. The first page of the applicant questionnaire contained the following warning: " An applicant who intentionally makes a false statement of any material fact or practices or attempts any deception or fraud in his or her application . . . may be disqualified from the selection process immediately." R., p. 137. On August 13, 2014, in connection with his application to the department, the plaintiff signed the " New Haven Police Department Police Officer Applicant Integrity Statement, " which contained extensive warnings about the need for complete honesty in all application documents. The plaintiff signed this form, under oath, under the printed statement: " I have read and understand the contents of this statement." R., p. 148. Finally, on September 9, 2014, the plaintiff completed and signed the " Personal Data Questionnaire--Police Officer Candidate--PDCS 5145f" (personal data questionnaire). The personal data questionnaire contained the following warning: " To be considered for the position of police officer, the New Haven Police Department requires as part of your background investigation, that you complete truthfully and without omission, the Candidate Personal Data Questionnaire. Failure to complete this questionnaire, or providing false information or omissions thereon, will result in your removal from consideration or appointment, pursuant to the provisions of section 53a-157b of the Connecticut General Statutes, regarding making a false statement." R., p. 126.
The integrity statement (R., p. 148) included the following warnings:
In May 2015, the department initiated an internal affairs investigation of the plaintiff, who was still a probationary candidate at that time. R., pp. 115-23. He had an internal affairs interview on May 28, 2015. R., pp. 161-75. The interview was conducted by Sergeant Elliot Rosa, with Lt. Racheal Cain, the officer in charge of internal affairs, also present. R., p. 162. The plaintiff was represented by two union representatives during the interview. R., p. 162. On July 10, 2015, after a meeting with the department's chief, the plaintiff resigned his position to avoid being fired. R., pp. 84, 183.
The plaintiff was subsequently notified, by letter dated August 11, 2015, that the council was considering the revocation of his probationary candidate status. R., pp. 106-08, 181. By this letter, the plaintiff was advised of his rights to a compliance conference and to a de novo hearing. The plaintiff's attorney subsequently informed the council that the plaintiff elected both a compliance conference and a de novo hearing. R., pp. 112, 181.
At the plaintiff's de novo hearing on October 27, 2015, Cain, the officer in charge of the department's internal affairs division, testified that part of the investigation involved questioning the plaintiff's veracity in completing his sworn application and personal questionnaire. R., pp. 24-25, 184. At his internal affairs interview, the plaintiff signed a department " False Statement Warning Form" that advised him that if he made a false statement intended to mislead a law enforcement officer in the performance of an official investigation, he would be in violation of General Statutes § 53a-157b. R., pp. 33, 124, 163, 184. The warning form further set out the terms of § 53a-157b. R., pp. 33, 163, 184.
As noted above, on August 12, 2014, the plaintiff had signed the department's applicant questionnaire, with its warning that false statements on the form may disqualify a candidate. R., pp. 137-46, 184. On page 8 of the applicant questionnaire, under the category " Educational Background, " the plaintiff represented that he had attended Wagner College in Staten Island, New York, from August 2003, through November 2006. R., pp. 141, 184. In the space labeled " Degree/Credits, " the plaintiff wrote " Associates" and did not indicate the number of credits he had received at Wagner College. R., pp. 141, 184.
During the internal investigation, the department obtained a copy of the plaintiff's Wagner College transcript. The spaces for " Degree Conferred" and " Degree Completed" are blank. R., pp. 155-56, 184. There is no evidence that Wagner College conferred an associate's degree on the plaintiff.
At his de novo hearing, the plaintiff explained, under oath, that he believed he had obtained an associate's degree because he had completed two years of college at Wagner College and believed he had enough credits to qualify for an associate's degree. He claimed that he was not purposely trying to lie to or mislead the department. R., pp. 70-72, 184-85. The hearing officer did not find his statements regarding the associate's degree to be intentionally false. See R., p. 196.
On page 8 of the applicant questionnaire, question 20 inquired: " Have you ever been disciplined, suspended or expelled from any type of school or training?" R., p. 141. The plaintiff checked the " No" box and printed " N/A" in response to the following instruction: " If YES, provide the agency name, date and circumstances." R., pp. 141, 185.
Exhibit 7 at the de novo hearing was a letter to the plaintiff from Sofia B. Pertuz, Assistant Dean for Campus Life, Wagner College, dated May 11, 2005. R., pp. 150, 189-90. Pertuz represented that the letter was a follow-up to an administrative hearing held on May 6, 2005, in which the plaintiff was charged with damage to college property in violation of the college's code of conduct. Based on the plaintiff's statement and the statements of other witnesses, Pertuz found that the plaintiff was responsible for the violation. She further stated: " During our conversation, I found several contradictions in your statements that caused me to question your credibility in this situation. I have reviewed your file and found that you have a number of past incidents that resulted in disciplinary action. Considering all information in your file, especially the fact that you are currently on disciplinary probation, which had already been extended, I have recommended suspension from Wagner College for one semester. In addition, you are expected to pay restitution to the Wagner College in the amount of $150." R., pp. 150, 189. The letter continued: " By way of this letter, I am upholding the sanction of suspension from Wagner College for the Summer and Fall 2005 semesters. In addition, you are also banned from the Wagner campus until January 15, 2006." R., pp. 150, 189-90. The letter further advised the plaintiff of his right to appeal the suspension to the dean of the college. R., p. 150.
Exhibit 8 at the plaintiff's de novo hearing was a letter to the plaintiff, dated October 24, 2006, from Pertuz, who stated that it was a follow-up to an administrative hearing on October 23, 2006, which the plaintiff failed to attend. R., pp. 152, 190-91. Pertuz stated that the plaintiff had been charged with four violations of the college's code of conduct, including " Behaving in a manner that disrupts the daily routine of other students, " " Any actions that disrupt the College's mission and environment, " " Physical assault or abuse of any person, on or off College property, " and " Conduct which threatens or endangers the health or safety of another person." R., p. 152. The letter referred to an incident that allegedly occurred on October 19, 2006. After reviewing all the incident reports and listening to the accounts of the other students involved in the incident, Pertuz concluded that the plaintiff was responsible for all the violations alleged in the letter. R., pp. 152, 191. Pertuz's letter informed the plaintiff that he was suspended from the college for the 2006-2007 academic year and that he was banned from the Wagner College campus, including residence halls and apartments, until May 31, 2007. R., pp. 152, 191.
In the plaintiff's internal affairs interview, before he was shown the Wagner College documents, Rosa asked the plaintiff about his college experience. R., pp. 165-66, 186. He stated that he attended Wagner College and graduated from Southern Connecticut State University. R., pp. 165, 186. When Rosa asked the plaintiff if there was any particular reason he left Wagner after three and a half years, he said no. R., pp. 166, 186-87. Asked if he voluntarily left, he replied " Yeah, We left--ah . . . my Mother, she said I could come home so." R., pp. 166, 187.
After the plaintiff gave that answer in the internal affairs interview, Cain reminded him that he had signed a release, and she stated that they had his transcripts from Wagner. R., pp. 166, 187. She then asked if he voluntarily left Wagner and he said no. He began to explain that there was an " altercation" and he was told to meet with the dean, but when he and his mother arrived for the meeting, they were told they were too late. R., pp. 166-67, 187.
Cain then asked the plaintiff how many times he had been suspended from Wagner. He said " That was the time I got suspended . . . That was in '05, I went to the apartments, and that was it." R., pp. 168, 187.
Rosa, the officer conducting the internal affairs interview, then showed the plaintiff the letter from Pertuz dated October 24, 2006, and recounted the specific allegations in the letter. R., pp. 168, 187. The plaintiff told Rosa that this letter was the one where he was supposed to go to a meeting with the dean but when he and his mother got there, they were told they had the wrong time and that they had missed the meeting. R., pp. 169, 187. In response to a question from Cain, the plaintiff admitted that he had " basically" been expelled from Wagner College. R., pp. 169-70.
Cain told the plaintiff that he had not been expelled because he missed an appointment and asked him about the situation that had caused him to be charged with physical assault. R., pp. 171, 188. A union representative who was attending the internal affairs interview explained to the plaintiff that there had apparently been two incidents. After the first, the plaintiff was suspended but later reinstated. R., pp. 171, 188-89.
The plaintiff explained the second incident by saying that he was in his girlfriend's dorm room when one of his roommates called her to tell her he was with another girl. He went down to his room to confront his roommate. He claimed that one of the males hit him and they started wrestling. He claimed that a second roommate then began jumping on him. When they stopped, he went back to his girlfriend's room, and then campus security arrived. R., pp. 172, 189.
The plaintiff explained to the internal affairs investigators that he had not actually been suspended after the first incident in 2005, where he was charged with damaging college property. R., pp. 172-73, 189. He explained that his mother had gone with him to talk with the provost after that incident, and the provost decided that he could attend classes but was " suspended off the dorms." R., p. 172. At that time in 2005, the plaintiff moved to an off-campus apartment owned by the college. R., pp. 172-73, 189. His Wagner College transcript in fact indicates that he attended classes during the fall term in 2005. R., pp. 155-56, 189.
At his de novo hearing, the plaintiff testified that he had not lied on his application form when he denied ever having intentionally or negligently damaged the property of another. R., pp. 77, 190. He claimed that a football teammate had caused the damage. R., pp. 77, 190. During his internal affairs interview, however, he had denied remembering what the " damaged property" was. R., pp. 168, 190.
In response to his attorney's questions at the de novo hearing, the plaintiff testified that he did not lie on the application when he represented that he had never been disciplined by any school; he claimed that he had just not remembered that he was disciplined in 2005 and that he did not lie about the suspension in 2006 because it was " entered by default" and he never got the chance to be heard on what happened. R., pp. 77-81, 191. He testified that he was told he could not appeal the decision because it was a " done deal." R., pp. 81, 191. Pertuz's letter of October 24, 2006, however, informed the plaintiff that he had the right to appeal the decision to the dean. R., p. 153.
On cross examination by the agency advocate at the de novo hearing, the plaintiff admitted that being expelled from school was " a pretty significant life event." R., pp. 95, 192. When the hearing officer asked the plaintiff about the $150 restitution he was required to pay as a result of property damage, the plaintiff claimed that his teammate was drunk and fell through a shower door. R., pp. 96-97, 190. He said he was only helping his roommate up when the resident assistants arrived and blamed him for the broken door. He claimed that he explained to the dean that he had not broken the door but he still had to pay the $150. R., pp. 97, 192.
Based on the totality of the evidence presented at the de novo hearing, the hearing officer found that the plaintiff was advised and warned on five occasions that he was required to answer questions truthfully and without omission. He further found, by clear and convincing evidence, that the plaintiff had intentionally made false statements in violation of General Statutes § § 53a-157b and 7-294d(c)(2)(I); that he had obtained his probationary candidate status through misrepresentation in violation of General Statutes § 7-294d(c)(2)(B); and that he had falsified application documents required by the New Haven Police Department to obtain his probationary candidate status in violation of General Statutes § 7-294d(c)(2)(C). R., pp. 195-96. The hearing officer found that the plaintiff's testimony during the de novo hearing was not credible. R., p. 196.
The council considered the hearing officer's report and recommended final decision at its meeting of January 14, 2016. Supplemental Record (S.R.), pp. 200-05C. After obtaining clarification from the council's attorney that its task was to decide, based on its independent review of the evidence in the record, whether clear and convincing evidence supported one or more of the bases for not certifying the plaintiff, the council voted to adopt the hearing officer's report as its final decision. S.R., pp. 205A-205B. This appeal followed.
One page of the transcript of the council meeting of January 14, 2016, was omitted from the record originally filed with the court. At the court's direction, the attorney for the council filed a supplement to the record on May 2, 2017, which included the previously omitted page.
II
SCOPE OF REVIEW
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. Judicial review of the commissioner's action is very restricted. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). " [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id.; see also Hogan v. Dep't of Children & Families, 290 Conn. 545, 561, 964 A.2d 1213 (2009).
Section 4-183(j) provides in relevant 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."
" In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Frank v. Dep't of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014).
" [A]dministrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative." (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 108, 596 A.2d 374 (1991).
III
DISCUSSION
A
MOOTNESS
The plaintiff asserts three grounds on appeal. Before the court can address the plaintiff's claims, however, the court must first address the council's argument that the plaintiff's appeal is moot and that the court, accordingly, lacks subject matter jurisdiction to consider the appeal. More specifically, the council argues that General Statutes § 7-291c(a) precludes any police department from hiring the plaintiff, and consequently, the council cannot certify the plaintiff as a " police officer" pursuant to General Statutes § 7-294d.
" Whether the plaintiff may be afforded practical relief raises the question of mootness. The test for determining mootness is whether a judgment, if rendered, would have any practical legal effect upon an existing controversy." (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 13, 917 A.2d 966 (2007). A case will not be considered moot " where, although the court cannot grant the specific relief originally requested by the plaintiff, the plaintiff still has a stake in the outcome of the proceedings for which effective relief can be provided." (Internal quotations marks omitted.) Id., 13-14. " On the other hand, it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotations marks omitted.) Id., 14. " In other words, where the question presented is purely academic, [the court] must refuse to entertain the appeal." (Internal quotation marks omitted.) Id.
To resolve the issue of mootness asserted by the council, the court turns first to the text of General Statutes § 7-291c and its relationship with the council's governing statutes and regulations. Section 7-291c was first enacted as section six of Public Acts No. 15-4 (P.A. 15-4) of the June Special Section in 2015. Its effective date was October 1, 2015, nearly three months after the plaintiff resigned his probationary candidate position. Section 7-291c(a) provides as follows: " No law enforcement unit, as defined in section 7-294a, shall hire any person as a police officer, as defined in section 7-294a, who was previously employed as a police officer by such unit or in any other jurisdiction and who (1) was dismissed for malfeasance or other serious misconduct calling into question such person's fitness to serve as a police officer; or (2) resigned or retired from such officer's position while under investigation for such malfeasance or other serious misconduct." Pursuant to General Statutes § 7-291c(d)(1), " malfeasance" means " the commonly approved usage of " malfeasance." The common dictionary definition of " malfeasance" is " wrongdoing or misconduct esp. by a public official." Merriam-Webster's Collegiate Dictionary (11th Ed. 2012), p. 752; see also 58 H. Proc., Pt. 25, 2015 June Spec. Sess., p. 8343 (remarks of Representative Tong, quoting dictionary).
General Statutes § 7-294a(8) defines " law enforcement unit" in relevant part as " any agency, organ or department of this state or a subdivision or municipality thereof . . . whose primary functions include the enforcement of criminal or traffic laws, the preservation of public order, the protection of life and property, or the prevention, detection or investigation of crime . . ."
In determining whether the plaintiff's appeal is moot, the inquiry must start with whether, as a matter of law, General Statutes § 7-291c(a) has prospective or retroactive application. " Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute . . . In order to determine the legislative intent, we utilize well established rules of statutory construction." (Internal quotations marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 620, 872 A.2d 408 (2005). " Our point of departure is General Statutes § 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect." (Internal quotations marks omitted.) Id. " The obligations referred to in the statute are those of substantive law . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only." (Internal quotations marks omitted.) Id. " [I]t is generally agreed that a substantive law creates, defines and regulates rights . . ." (Internal quotations marks omitted.) Id., 621.
As its express language establishes, the purpose of General Statutes § 7-291c(a) is to prohibit law enforcement units from employing a police officer who has previously been dismissed for malfeasance or other serious misconduct calling into question the officer's fitness to serve, or who resigned or retired while under investigation for such malfeasance or other serious misconduct. In addition, General Statutes § 7-291c(b) provides that " [a]ny law enforcement unit that has knowledge that any former police officer of such unit who (1)(A) was dismissed for malfeasance or other serious misconduct, or (B) resigned or retired while under investigation for such malfeasance or other serious misconduct; and (2) is an applicant for the position of police officer with any other law enforcement unit, shall inform such other unit of such dismissal, resignation or retirement." Before General Statutes § 7-291c was enacted in 2015, no statute categorically disqualified any police officer who was separated from a law enforcement unit as a result of allegations of malfeasance or other serious misconduct from being employed by another law enforcement unit, and no statute required such an officer's former law enforcement unit to apprise any other law enforcement units of such officer's history. The court concludes that General Statutes § 7-291c imposes new obligations and is therefore a substantive law. As such, it is presumptively prospective in application.
The inquiry, however, does not end there. Although the text of § 7-291c does not contain an express statement that the legislature intended it to apply retrospectively, the text could reasonably be construed to prohibit law enforcement units, as of its effective date, from hiring police officers who had been dismissed for malfeasance or other serious misconduct, or who had resigned or retired while under investigation, no matter when the dismissal, retirement, or resignation occurred. Because the text is ambiguous as to the legislature's intent, the court must consider whether the statute's application to police officers who were dismissed or resigned or retired before its enactment would produce an impermissible retroactive effect. See Zuluaga Martinez v. INS, 523 F.3d 365, 372 (2d Cir. 2008), cert. denied sub nom. Zuluaga-Martinez v. Immigration & Naturalization Service, 555 U.S. 1170, 129 S.Ct. 1314, 173 L.Ed.2d 584 (2009).
A retroactive law relates back and gives a previous transaction a legal effect different from that which it had under the law in effect when it occurred. See Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Shannon v. Commissioner of Housing, 322 Conn. 191, 204-05, 140 A.3d 903 (2016). " [A] statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment . . . or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment ." (Emphasis in original; internal quotation marks omitted.) Shannon v. Commissioner of Housing, supra, 322 Conn. 204. " The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity." Landgraf v. USI Film Products, supra, 511 U.S. at 270.
" Put differently, under Landgraf, a law has retroactive effect when it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." (Internal quotation marks omitted.) Shannon v. Commissioner of Housing, supra, 322 Conn. 205-06. " In applying this framework [the court] must exercise [its] commonsense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment." (Citation omitted; internal quotations marks omitted.) Martinez v. Immigration & Naturalization Service, supra, 373. " [W]hether a particular application is retroactive will depen[d] upon what one considers to be the determinative event by which retroactivity or prospectivity is to be calculated." (Internal quotation marks omitted.) Martinez v. Immigration & Naturalization Service, supra, 523 F.3d 373; see Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 857 n.3, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring).
Here, the determinative event happened when the plaintiff resigned his probationary police officer position with the New Haven Police Department while under investigation, because that is the event that would trigger the application of General Statutes § 7-291c(a). In this court's exercise of " commonsense, functional judgment, " the court concludes that § 7-291c(a) would have a retroactive effect if applied to the plaintiff because it would change the legal consequences of the plaintiff's July 10, 2015 resignation. See Landgraf v. USI Film Products, supra, 511 U.S. at 282-83 (changed consequences created an impermissible retroactive effect); Martinez v. Immigration & Naturalization Service, supra, 523 F.3d 374 (" [t]he relationship between the consequences of a new law and the conduct pre-dating the new law is an important one for retroactivity analysis"). Under the law as it existed at the time of the plaintiff's resignation, the plaintiff was not barred from reemployment as a police officer. See Landgraf, supra, 511 U.S. at 265 (" the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place . . ." (internal quotation marks omitted)). Under the new law, however, the plaintiff would be indefinitely barred from reemployment as a police officer in Connecticut.
The council argues, however, that when the plaintiff resigned, he did not have a " vested right" to be employed as a police officer in the future, but merely a unilateral inchoate hope. It argues that the effect of General Statutes § 7-291c is merely to establish prospective standards for the hiring of police officers. This argument is not implausible. Nevertheless, a similar argument was rejected in INS v. St. Cyr, 533 U.S. 289, 314-26, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), where the United States Supreme Court held that a section of an immigration reform act would have a retroactive effect if applied to a noncitizen who had pled guilty to a deportable criminal offense before the effective date of the act. The act in question eliminated the possibility that a person convicted of certain offenses could obtain a discretionary waiver of deportation or exclusion. The Court concluded that the elimination of such a possibility--which was far from a vested right--nevertheless would " [attach] new legal consequences to events completed before its enactment." (Citation omitted; internal quotation marks omitted.) Id., 321. Our Supreme Court, in a recent decision considering the issue of retroactivity, has applied the rationale in St. Cyr. See Shannon v. Dept. of Housing, supra, 322 Conn. 207-08 (following the " broader, more realistic approach taken by the Supreme Court in St. Cyr ").
Under the reasoning of Landgraf, St. Cyr, and Shannon, General Statutes § 7-291c(a) would have a retroactive effect if construed to apply to the plaintiff in this case. Such a construction is presumptively disfavored but not conclusively barred. As the United States Supreme Court commented in Landgraf, constitutional barriers against retroactivity are limited in scope, and absent a violation of a specific constitutional provision, " the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope. Retroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary. However, a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." (Footnote omitted.) Landgraf v. USI Film Products, supra, 511 U.S. at 267-68.
In determining whether a legislature manifested a clear intent to make a civil statute retroactive in effect, the courts look first to the text and, if the text is silent or ambiguous with respect to retroactivity, then to the legislative history of the enactment. In this case, General Statutes § 7-291c(a) is silent as to whether it is intended to apply to former officers who were dismissed or who resigned or retired under investigation prior to its enactment. The council asserts that its legislative history demonstrates a clear intention to make it immediately applicable. The court is not persuaded, however, that the legislative history reveals a clear intent to make its provisions applicable to conduct that occurred before its enactment.
General Statutes § 7-291c(a) was enacted in the June Special Session of the General Assembly's 2015 term. See Public Acts 2015 (June Sp. Sess.), No. 15-4, " An Act Concerning Excessive Use of Force, " § 6. Prompted by concerns about incidents around the country in which police had used lethal or excessive force without clear justification, the act included a number of provisions intended to prevent or reduce the use of such excessive force. The act included provisions regarding training, procedures, equipment, hiring, and accountability. Most of the discussion of the bill on the floor of the legislature concerned provisions intended to promote the hiring, retention, and promotion of minorities in police departments in communities in which there are high concentrations of minority residents. Section six of the bill, which became § 7-291c, was discussed only briefly. See, e.g., 58 H. Proc., Pt. 25, 2015 June Spec. Sess., pp. 8311, 8342-46 (remarks of Representative Tong); 58 S. Proc., Pt. 12, June Spec. Sess. Pp. 3524-26 (remarks of Senator Coleman). None of the discussions expressly addressed the question of retroactivity; instead, the proponents of the bill merely explained in general terms that the purpose of the bill was to ensure that " law enforcement officers who are dismissed for misconduct are not rehired in another police department." 58 H. Proc., Pt. 25, 2015 June Spec. Sess., pp. 8311 (remarks of Representative Tong).
The only discussion that even tangentially raised the issue of timing was a question about another subsection (now General Statutes § 7-291c(c)), which provides that " [t]he provisions of this section shall not apply to any police officer who is exonerated of each allegation against such officer of such malfeasance or other serious misconduct." Representative O'Dea asked, for purposes of legislative intent, what would happen if an officer, though confident that an allegation of malfeasance or serious misconduct was false, decided to retire or resign rather than fight it, but subsequently had a change of heart and wanted to return to police work. Representative O'Dea inquired how such a person could get exonerated. 58 H. Proc., Pt. 25, 2015 June Spec. Sess., p. 8347 (remarks of Representative O'Dea). Representative Tong replied that the bill did not provide such an officer with a means to seek reinstatement and be exonerated, although he guessed that a department could agree to reopen an investigation if it was willing to do so. He concluded: " I think that section six provides, however, that if you are accused and investigated for malfeasance, serious misconduct, and in during that investigation you choose to retire, you run the risk that you may not get another job." 58 H. Proc., Pt. 25, 2015 June Spec. Sess., p. 8437 (remarks of Representative Tong). Contrary to the council's argument, Representative Tong's comment can as easily be understood to apply to someone deciding to retire or resign while under investigation after the law was enacted as before. While it describes the situation of someone who retires and then has a " change of heart, " it does not describe the situation of someone who resigned without knowing that the resignation would permanently disqualify him or her from obtaining employment as a police officer. Because the comment could apply either to a prospective or a retroactive application of the law, it is not evidence of " clear intent." " Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for countervailing benefits." (Citation omitted; internal quotation marks omitted.) Immigration & Naturalization Service v. St. Cyr, supra, 533 U.S. at 316.
The council also argues that construing General Statutes § 7-291c(a) not to apply to officers who were discharged or retired or resigned while under investigation would impose a " bizarre and dangerous result in which certain police officers were permitted to escape the consequences of their wrongdoing, at the expense of the public, " merely because such wrongdoing occurred before the effective date of the act. Def. Br., p. 26. That argument is unpersuasive. Nothing in § 7-291c requires a police department to hire a former officer who has been fired by another department or who has resigned or retired under a cloud. Nor does it prevent a department from investigating the employment history of any police officer candidate to determine whether anything in the candidate's past raises questions about the candidate's fitness to serve as a police officer.
It is unquestionably true, as the council argues, that there is an important public policy against intentional police officer dishonesty. In support of this unremarkable principle, the council quotes Town of Stratford v. Am. Fedn. & Mun. Emples., 315 Conn. 49, 55, 105 A.3d 148 (2014). But, as the Supreme Court's decision in Stratford demonstrates, that important public policy does not always require that an officer who is less than perfectly honest must be terminated. In Stratford, a police officer was hired with the town's knowledge that he had previously suffered from epileptic seizures, which he believed were under control by medication. After some time on the job, he suffered a seizure while operating a police vehicle and damaged two parked cars in the incident. He subsequently removed information from his medical records to prevent a neurologist from learning that he had suffered other seizures during the time he was employed, sometimes as a result of his abuse of alcohol. The city terminated his employment after learning of his dishonest actions, but an arbitration panel ordered his reinstatement. In upholding the arbitration award despite an argument that the award offended public policy, the Supreme Court stated: " We conclude that there is a public policy against intentional police officer dishonesty in connection with official duties because integrity and trustworthiness are integral to performing these duties. We also conclude, however, that under the facts in the present case, the arbitration panel's decision to punish [the officer] with a nine-month suspension without back pay and with the possibility of being subjected to future medical examinations did not violate this public policy." Id. In light of the Supreme Court's conclusion that an officer's intentional dishonesty about his medical fitness to serve is not so violative of public policy as to require his termination, this court cannot conclude that it would be absurd to construe § 7-291c prospectively, at least in the absence of a clear statement of legislative intent to apply it retroactively.
Because the text of General Statutes § 7-291c does not expressly make its provisions retroactive, and because there is no clear evidence of legislative intent to apply it to conduct that occurred before its enactment, § 7-291c does not bar the plaintiff from ever being employed as a police officer in the future. Accordingly, § 7-291c does not render the plaintiff's appeal moot. The court therefore turns to the merits of the plaintiff's claims on appeal.
B
CLAIM OF VIOLATION OF GENERAL STATUTES § 7-294d(c)(2)
The plaintiff's first claim is that the council improperly decided that it would " never again" certify him as a police officer. He claims that he is entitled to reapply for certification after two years because General Statutes § 7-294d(c)(2) provides, in relevant part, that " [a]ny police officer . . . whose certification is cancelled or revoked pursuant to this section may reapply for certification no sooner than two years after the date on which the cancellation or revocation order becomes final." The council argues that its decision does not state that it will " never again" certify him. Def. Br., p. 3, n.4. The court agrees with the council.
The hearing officer recommended the following order, which the council adopted: " It is recommended that the Police Officer Standards and Training Council revoke the Probationary Candidate certification of Charles M. Bryant, III under the authority of Sec. 7-294d(c)(2)(I), Sec. 7-294d(c)(2)(B) and Sec. 7-294d(c)(2)(C) and furthermore refuse to certify Charles M. Bryant, III as a police officer in the State of Connecticut." R., p. 196. The plaintiff's argument concerns the " furthermore" provision.
To put this provision in context, it is necessary to review the statutory and regulatory provisions governing the certification of police officers. General Statutes § 7-294d(a)(5) vests the council with the authority to " require that all probationary candidates receive the hours of basic training deemed necessary before being eligible for certification . . ." Under regulations promulgated pursuant to General Statutes § 7-294e(c), " [p]robationary candidates, while undergoing basic training, may not have contact with citizens unless such probationary candidates are accompanied by, and working in concert with, a currently certified law enforcement officer." Regs., Conn. State Agencies § 7-294e-1(c).
The council has promulgated regulations for the training and certification of police officers. Under these regulations, the council " shall certify persons as police officers when they: (1) hold the position of probationary candidate in a law enforcement unit . . . and (2) have completed a basic training program . . . and (3) have completed a supervised field and departmental training program as required by the [c]ouncil." Regs., Conn. State Agencies § 7-294e-14(a). The regulations further provide for the establishment of an " original date of certification" as follows: " All persons appointed to probationary candidate positions who have completed both basic training and supervised field and departmental training will be considered certified on the day when the final requirement is completed." Regs., Conn. State Agencies § 7-294e-14(b). However, " [c]ertification of police officers is contingent upon active employment in a law enforcement unit." Regs., Conn. State Agencies § 7-294e-14(b)(1).
In other words, to become a police officer, a recruit must first satisfy a police department's pre-employment requirements and must be hired as a probationary candidate. The police department must then register the probationary candidate with the council for training. After a probationary candidate satisfactorily completes his basic training and supervised field training, he will be considered certified as a police officer, subject to the condition that he must be actively employed in a law enforcement unit.
The " furthermore" provision in the final decision in this case reflects the particular timing of the plaintiff's resignation. The plaintiff testified that he resigned the day before he was scheduled to graduate from the academy. R., p. 84. At the time, he was certified as a probationary candidate and had been employed by the New Haven Police Department for seven months. In the usual course of events under the council's regulations, he would have been certified as a police officer without probationary restrictions on his service after he completed the training requirements. Certification was conditional, however, upon his active employment with a law enforcement unit.
Although the plaintiff may have substantially (if not satisfactorily) completed his training, at the time of the council's action he was no longer actively employed by a law enforcement unit because he had resigned from the New Haven Police Department the day before his graduation from training. The court construes the " furthermore" provision challenged by the plaintiff to mean that the council intended both to revoke his certification as a probationary candidate and to make clear that he could not be certified as a police officer despite his completion of training. This was clearly correct in light of the fact that he was no longer employed by a law enforcement unit and thus no longer eligible for certification.
In its brief to this court, the council expressly disavowed the meaning the plaintiff ascribed to the " furthermore" portion of the council's order, and the council expressly recognized its obligation under General Statutes § 7-294d(c)(2) to consider his reapplication in not less than two years, if he should, in fact, find a law enforcement unit willing to hire him so as to render him eligible to reapply for certification. The plaintiff's first issue on appeal therefore lacks merit.
C
PROCEDURAL CLAIMS
The plaintiff's second claim on appeal is that the process used by the council to revoke his certification was inconsistent with the governing statutes. More specifically, the plaintiff claims that the council improperly shifted the burden of proof to him and impermissibly predetermined the outcome of his de novo hearing. The court disagrees.
General Statutes § 7-294d(c)(2) governs the revocation of a police officer's certification. It provides in relevant part as follows: " The council may cancel or revoke any certificate if: . . . (B) the certificate was obtained through misrepresentation or fraud, (C) the holder falsified any document in order to obtain or renew any certificate, . . . or (I) the holder has been found by a law enforcement unit, pursuant to procedures established by such unit, to have committed any act that would constitute . . . false statement in violation of section 53a-157b. Whenever the council believes there is a reasonable basis for cancellation or revocation of the certification of a police officer . . . it shall give notice and an adequate opportunity for a hearing prior to such cancellation or revocation. The council may cancel or revoke any certificate if, after a de novo review, it finds by clear and convincing evidence (i) a basis set forth in subparagraphs (A) to (G), inclusive, of this subdivision, or (ii) that the holder of the certificate committed an act set forth in subparagraph (H) or (I) of this subdivision."
The council has adopted regulations governing the procedures for revoking certifications. Pursuant to its regulations, " No revocation of any certificate shall be effective unless prior to the institution of council proceedings, the council gave notice by certified mail to the officer of facts or conduct which warrant the intended action, and the officer was given the opportunity to show compliance with all lawful requirements for the retention of the certificate." Regs., Conn. State Agencies § 7-294e-18(a). After a compliance conference is afforded, a contested case de novo hearing may be held pursuant to General Statutes § § 7-294d(c)(2) and Regs., Conn. State Agencies § § 7-294e-19, 7-294e-20, and 7-294e-21. At the contested case de novo hearing, " [e]ach party . . . shall have the right to present evidence, cross-examine witnesses, enter motions and objections and assert all other rights essential to a fair hearing." Regs., Conn. State Agencies § 7-294e-21(c). If the contested case is not heard by the full council, a proposed final decision is issued by the hearing officer pursuant to Regs., Conn. State Agencies § 7-294e-23 and considered by the council pursuant to Regs., Conn. State Agencies § 7-294e-24.
In this case, after the council received notice of the plaintiff's resignation from the New Haven Police Department, as required by the council's regulations, the council's staff conducted a preliminary investigation and then issued a notice to the plaintiff by letter dated August 11, 2015. R., pp. 2-4. The notice informed the plaintiff that the council was considering revocation of his certification and identified, in detail, the specific conduct about which it was concerned. R., pp. 2-3. As statutory grounds for revocation, the notice cited General Statutes § § 53a-157b and 7-294d(c)(2)(C). It then stated as follows:
Pursuant to Regs., Conn. State Agencies § 7-294e-1(d)(2), " all law enforcement units shall . . . [r]egister the departure of all probationary candidates and certified police officers from the rosters of all law enforcement units and the reason for the departure."
By letter dated September 28, 2015, before the de novo hearing, the council sent a notice correcting this statutory reference. R., pp. 158-59. As corrected, the council cited General Statutes § 7-294d(c)(2)(C). The plaintiff notes, in his brief, that the hearing officer's final report " amplified" the charge to include § § 7-294d(c)(2)(B) and 7-294d(c)(2)(C). In this appeal, the plaintiff does not assert that the " amplification" prejudiced him. Nor did the plaintiff make such an argument to the council before it voted on the final decision. Before the council, the plaintiff's counsel argued only that " the wrong legal standard was used as it pertained to General Statutes § 53a-157b. And that even within the incorrect standard that was used, there was no evidence that was sufficient to satisfy the standard, such that his certification should be revoked even on a permanent basis." R., p. 204.
Pursuant to POST Council regulations Section 7-294e-18, " Whenever the Council believes there is a reasonable basis for cancellation or revocation of any certificate . . . it shall give notice by certified mail to the officer of facts or conduct which warrant the intended action, and the officer is given the opportunity to show compliance with all lawful requirements for the retention of the certificate .
You are hereby notified that POST Council's staff has completed a preliminary inquiry to determine if clear and convincing evidence exists to warrant revocation of your Connecticut police officer probationary certification and such evidence appears to exist. Therefore, you are hereby placed on notice that POST Council is initiating procedures to revoke said police officer probationary certification.
You are instructed that you may, within fifteen (15) calendar days after receiving this notice, to either:
(1) Surrender your police officer probationary card (or a letter) to Police Academy Administrator Thomas E. Flaherty, thereby revoking your right to serve as a probationary police officer in Connecticut and waiving your right to a hearing, or
(2) Exercise your due process rights including a right to a compliance conference, an administrative de novo hearing (at which time you will be allowed to present evidence, witnesses and argument as to why your police officer probationary certification should not be revoked), or both . . .
(3) You are further notified that if you neither surrender your certificate . . . nor request a compliance conference, administrative de novo hearing or both, as indicated in #2 above, you will be deemed to have waived your right to a hearing and POST Council will vote to revoke your police officer probationary certification at its next regularly scheduled meeting.(Emphasis in original.) R., pp. 3-4.
The plaintiff claims that the August 11, 2015 notice violates his rights because (1) it shifts the burden of proof to the plaintiff, and (2) indicates that the Council has already predetermined the outcome of any de novo hearing based on its preliminary investigation. The plaintiff did not raise these claims before the hearing officer or the council before it voted to approve the proposed final decision and therefore is deemed to have waived them. A plaintiff cannot raise issues on appeal that he failed to present to the agency below. See Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 862-63, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005).
Even if these claims had been properly raised, the court would not find them persuasive. It appears that the August 11, 2015 notice was intended to notify the plaintiff of several procedural rights at one time. More specifically, it informed him that (1) he was entitled to a compliance hearing under § 7-294e-18 of the Council's regulations, (2) he was entitled to an administrative de novo hearing; and (3) at a de novo hearing, he had the right to present evidence, witnesses, and argument. It also acknowledged that any revocation decision had to be supported by clear and convincing evidence.
The attempt to identify several procedural rights in one notice resulted, in the court's view, in an ambiguously drafted document. Two statements in the notice give some support to the plaintiff's claim that the council shifted the burden of proof to the plaintiff. First, the reference to the compliance conference expressly states the " officer is given the opportunity to show compliance, " suggesting that it is the officer's burden, in that conference, to explain or justify the conduct of concern to the council. Second, the reference to the de novo hearing states that the plaintiff will be allowed to present evidence, witnesses, and argument as to why his certification should not be revoked.
Despite the awkward drafting of the notice, the court is not persuaded that the plaintiff's rights were violated by the combining of several notices in one letter. The claim that the council improperly shifted the burden of proof is refuted by the record. At the de novo hearing, the council's advocate clearly recognized that the council bore the burden of proof. He introduced documentary and testimonial evidence before resting, and the plaintiff subsequently chose to testify in his own behalf. In the proposed final decision, the hearing officer expressly found " by clear and convincing evidence" that the plaintiff " has intentionally made false statements." R., p. 196. When the council met to consider the proposed final decision, moreover, a council member specifically asked the council's attorney to clarify the standard to be applied. The following colloquy occurred:
MR. KANE: . . . What exactly are we doing? Are we voting to affirm the finding of the hearing officer or are we making our independent conclusion based on the record that's before us and the report that's in here?
MR. SARNOSKI: You're entitled to make an independent decision based on the evidence that's in the record. So if you look at that record, and in your view it's not sufficient by clear and convincing evidence, which is the statutory standard to uphold, one or more of the bases for not certifying Mr. Bryant, then you can vote accordingly.S.R., pp. 205A-205B.
Nor does the reference to the preliminary inquiry by the council's staff indicate that the council had prejudged the evidence. Under General Statutes § 7-294d(c)(2), the council is required to determine that there is a " reasonable basis for cancellation or revocation of the certification of a police officer" before giving notice of a revocation hearing. It cannot determine that a reasonable basis exists without some sort of preliminary inquiry. Moreover, since its ultimate finding must be based on clear and convincing evidence, it is not unreasonable that the preliminary inquiry should include an analysis of the strength of the evidence before subjecting someone to a revocation hearing.
It is well established, as the plaintiff concedes, that " [i]t is not violative of due process for the same authority which initiated the subject of the hearing to listen to and determine its outcome as long as that authority gives the person appearing before it a fair, open and impartial hearing." (Citation omitted; internal quotation marks omitted.) New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 151, 627 A.2d 1257 (1993). In light of the record as a whole, the court concludes that the plaintiff was afforded a fair, open and impartial hearing. He was advised of the conduct at issue in the charges against him (R., pp. 2-3, 158); he was advised of his right to be represented by an attorney (R., p. 4.); he was advised of the potential consequences of waiving his rights to the compliance conference or the administrative de novo hearing (R., p. 4); he was given an opportunity to meet with council staff at a compliance conference (R., pp. 3-4, 11); he was given an administrative de novo hearing (R., pp. 8-101); he was permitted to cross examine the council's witness (R., pp. 44-59); and he was allowed to testify on his own behalf. R, pp. 66-90. He was represented by an attorney at the compliance conference, at the de novo hearing, and before the council at its meeting to vote on the proposed final decision. See R., pp. 8, 112, 203. The council properly applied the " clear and convincing evidence" standard when it voted to revoke his probationary candidate certification and to deny original certification as a police officer. R., pp. 196; S.R., pp. 205A-205B. Accordingly, the plaintiff has not established that the council's judgment was " in violation of constitutional or statutory procedures" or was " made upon unlawful procedure." See General Statutes § 4-183(j).
D
CHALLENGES TO SPECIFIC FINDINGS
In its final decision, the council found, by clear and convincing evidence, that revocation of the plaintiff's probationary candidate certification was warranted under General Statutes § § 7-294d(c)(2)(I), 7-294d(c)(2)(B), and 7-294d(c)(2)(C). On appeal, the plaintiff claims that the council applied an incorrect legal standard under § 7-294d(c)(2)(I) and that the evidence was insufficient to support the finding even under the incorrect standard applied. The plaintiff makes only a passing argument with respect to the findings under General Statutes § § 7-294d(c)(2)(B) and 7-294d(c)(2)(C), claiming that there was no evidence--much less clear and convincing evidence--that the plaintiff intended to misrepresent any facts. The council argues, to the contrary, that clear and convincing evidence supported a finding that the plaintiff intentionally misrepresented facts in the various documents he submitted in applying for a position with the New Haven Police Department.
The plaintiff argues that evidence was insufficient, under the " clear and convincing" evidentiary standard, to show that the plaintiff intended to misrepresent facts or mislead the department. Because this argument appears to apply to all the charges against him, and because it is the only argument the plaintiff makes with respect to the charges under § § 7-294d(c)(2)(B) and 7-294(c)(2)(C), the court will address this argument first.
At the outset, the court notes that neither party cited appellate guidance as to how to apply the substantial evidence rule under General Statutes § 4-183(j) to an administrative finding that, by statute, must be based on " clear and convincing" evidence. In the usual UAPA case, the administrative decision is made under a preponderance of the evidence standard, to which the substantial evidence rule then applies on appeal. See Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 819-21, 955 A.2d 15 (2008) (holding that, absent specific statutory standards, preponderance of evidence standard applies in administrative proceedings). In this case, however, General Statutes § 7-294d(c)(2) unambiguously requires the council to apply a " clear and convincing evidence" standard, and, as discussed above, the council did in fact state that it applied the " clear and convincing evidence" standard. The court concludes that, under § 4-183(j), it must determine whether there was substantial evidence of the plaintiff's intent that would be sufficient to satisfy a " clear and convincing" standard.
" The burden of persuasion . . . in those cases requiring a showing of clear and convincing proof is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." Dacey v. Connecticut Bar Asso., 170 Conn. 520, 537, 368 A.2d 125 (1976). The phrase " 'clear, substantial and convincing' fairly characterizes that degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution." Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981).
The plaintiff claims that the council's findings are not supported by clear and convincing evidence of the plaintiff's intent to misrepresent facts. " [T]he question of intent is purely a question of fact . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person's state of mind is usually proven by circumstantial evidence . . . Intent may be and usually is inferred from conduct." (Citation omitted; internal quotation marks omitted.) State v. Chance, 147 Conn.App. 598, 606, 83 A.3d 703 (2014). Indeed, in criminal cases requiring proof beyond a reasonable doubt, intent is generally proven by circumstantial evidence. See id. The court concludes that there was substantial evidence to support a finding that the plaintiff intentionally misrepresented facts for the purpose of obtaining employment as a probationary candidate, notwithstanding his denial of such intent. The court concludes that the evidence with respect to the plaintiff's intent was sufficient to satisfy a clear and convincing standard.
More specifically, the evidence supports a finding, by a clear and convincing standard, that the plaintiff intentionally lied about his academic disciplinary history. Despite numerous warnings on the application forms to take care to be sure that no relevant facts were misstated or omitted, the plaintiff represented on the applicant questionnaire that he had never been " disciplined, suspended or expelled from any type of school or training." R., p. 141. Documentary evidence obtained from Wagner College indicated, to the contrary, that the plaintiff had been repeatedly disciplined, suspended, and ultimately effectively expelled, from that school. R., pp. 150, 152.
There is evidence to support the council's finding that, by May 11, 2005, the plaintiff was on " disciplinary probation, which had already been extended, " for a number of " past incidents." R., pp. 150, 195. As a result of a new incident involving damage to school property, the assistant dean recommended his suspension for the summer and fall semesters of 2005. R., pp. 150, 195. Although he testified that this suspension was subsequently reduced to an exclusion from campus dormitories, a claim supported by his transcript, the plaintiff admitted that he was " suspended off the dorms" as a result of the incident and that he was required to pay $150 in restitution. R., pp. 47, 96-97.
Documentary evidence from Wagner College further supports the council's finding that on October 26, 2006, the plaintiff was suspended from Wagner College for the 2006-2007 academic year, on grounds that included physical assault and conduct that threatened the safety of others. R., pp. 152, 195. At the internal affairs interview, the plaintiff admitted that as a result of the altercation underlying this charge, he was " basically" expelled from Wagner College. R., p. 42.
At the de novo hearing, the plaintiff testified and repeatedly denied any attempt to mislead in his application documents. The hearing officer expressly found that the plaintiff's testimony at the hearing was not credible. " In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citation omitted; internal quotation marks omitted.) Frank v. Dept. of Children & Families, supra, 312 Conn. at 411-12. The hearing officer, as the trier of fact, was entitled to make a credibility finding based on his observation of the plaintiff's demeanor as well as inconsistencies in his various statements. He could fairly consider his own estimation of the plaintiff's credibility, in addition to the documentary evidence and the evidence of all the surrounding circumstances, in evaluating the factual question of the plaintiff's intent.
Indeed, even in civil cases not limited by the restrictions of General Statutes § 4-183, an appellate court reviewing findings made under a clear and convincing standard may not ignore the trier's credibility findings. In a defamation case requiring clear and convincing proof of actual malice, the Supreme Court recently observed that " although [w]e have considerable latitude in deciding whether the evidence supports a finding of actual malice, the constitutionally based rule of independent review does not mean that we disregard credibility determinations of the trier of fact . . . Deference to factual determinations that turn on credibility assessment is essential because of the fact finder's unique opportunity to observe and weigh witness testimony." (Citation omitted; internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 438-39, 125 A.3d 920 (2015).
Taken as a whole, the evidence supports the council's findings that the plaintiff intentionally misrepresented his disciplinary history to obtain his probationary candidate certificate. The council was entitled to consider the circumstances and the plaintiff's conduct. It could properly infer that the plaintiff had not merely forgotten that he was suspended from the dormitories in 2005 or expelled from college in 2006, in the fall of his senior year, as a result of which he had to move back home to live with his parents. The application documents contained numerous warnings that an applicant was required to acknowledge and explain information that might be unfavorable to the applicant. The plaintiff signed acknowledgments of those warnings. The council could properly infer that the plaintiff was aware that he was required to report and explain his academic disciplinary history but that he deliberately chose to lie about it instead. Accordingly, the plaintiff cannot prevail on his argument that the evidence was insufficient, under the clear and convincing standard, to support a finding that his misrepresentation of his academic disciplinary record was intentional.
The plaintiff has not asserted any other grounds for reversing the council's findings with respect to General Statutes § § 7-294d(c)(2)(B) or 7-294d(c)(2)(C). Indeed, when the council met to consider the proposed final decision, the plaintiff made no argument at all regarding General Statutes § § 7-294d(c)(2)(B) or (C). Before the council, his attorney's argument concerned only the decision with respect to General Statutes § 7-294d(c)(2)(I). A plaintiff cannot raise issues on appeal that he failed to present to the agency below. See Solomon v. Connecticut Medical Examining Board, supra, 85 Conn.App. 862; see also Valente v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. HHB-CV-15-6029369-S (October 19, 2015, Schuman, J.) [61 Conn.L.Rptr. 138, ], affirmed per curiam, 169 Conn.App. 908, 155 A.3d 328 (2016). Accordingly, the court concludes that the plaintiff has not established that the council's findings under § § 7-294d(c)(2)(B) and 7-294d(c)(2)(C) were improper.
With respect to the council's finding under General Statutes § § 7-294d(c)(2)(I), which requires a finding that the plaintiff violated § 53a-157b, the plaintiff argues that the hearing officer applied the wrong standard in determining that the plaintiff violated § 53a-157b and that there was no evidence that the New Haven police department found, pursuant to procedures it had established, that the plaintiff violated § 53a-157b. The first claim is refuted by the record. Although the hearing officer quotes the version of § 53a-157b that was in effect prior to a technical revision effective October 1, 2013; see General Statutes § 53a-157b (Rev. to 2013); the version he quotes includes the same substantive requirements, and the hearing officer clearly found both that the plaintiff had made statements that he knew to be false, under oath or pursuant to a form with an appropriate warning, and that he did so with the intent to mislead a public official in the performance of his duties. See R., pp. 192-93, 196. The court concludes that the hearing officer applied a correct legal standard in evaluating the evidence of a violation of § 53a-157b.
The plaintiff also claims that the council failed to find that the New Haven Police Department had found that the plaintiff violated General Statutes § 53a-157b " pursuant to procedures established by such unit, " as required by General Statutes § 7-294d(c)(2)(I), because it did not make a finding that the internal affairs investigation was conducted according to the department's established procedures. The court notes that General Statutes § 7-294d(c)(2) is ambiguous as to what must be proved by clear and convincing evidence. That is, it states the requirements twice in inconsistent language. Specifically, it provides in relevant part: " The council may cancel or revoke any certificate if: . . . (I) the holder has been found by a law enforcement unit, pursuant to procedures established by such unit, to have committed any act that would constitute . . . false statement in violation of section 53a-157b . Whenever the council believes there is a reasonable basis for cancellation or revocation of the certification of a police officer, it shall give notice and an adequate opportunity for a hearing prior to such cancellation or revocation. The council may cancel or revoke any certificate if, after a de novo review, it finds by clear and convincing evidence . . . that the holder of the certificate committed an act set forth in subparagraph . . . (I) of this subdivision ." The first and second italicized sentences have different requirements as to the finder of fact and the standard of proof. The first italicized sentence requires a finding by a law enforcement unit, pursuant to its established procedures, that an officer violated § 53a-157b; it does not specify a standard of proof. The second italicized sentence requires a finding by the council, after de novo review and by clear and convincing evidence, that the officer violated § 53a-157b. The second italicized sentence does not expressly require a finding that the officer was found to have violated § 53a-157b by a law enforcement unit pursuant to its established procedures. In this case, the council applied the second sentence and made an independent finding that the plaintiff had violated § 53a-157b, but it did not make a specific finding that the New Haven Police Department had made such a finding " pursuant to procedures established by such unit."
Neither party addressed the ambiguity in the statute as to the elements that the council is required to find to revoke a certification under General Statutes § 7-294d(c)(2)(I). Were this question dispositive, the court would require further briefing from the parties to address the ambiguity. At oral argument in this court, however, the plaintiff's counsel conceded that if the council's decision could be upheld on any ground stated in the decision, the court would not need to address the plaintiff's claims under General Statutes § 7-294d(c)(2)(I). Because the plaintiff has not met his burden of showing that the council's decision was improper with respect to General Statutes § § 7-294d(c)(2)(B) and (C), the plaintiff's appeal must be dismissed.
IV
CONCLUSION
The plaintiff's appeal is not moot because General Statutes § 7-291c cannot be retroactively applied to bar any law enforcement unit from hiring him in the future. On the merits of the appeal, the plaintiff has not met his burden of showing that the council improperly shifted the burden of proof to him or predetermined the outcome of the de novo hearing. Nor has the plaintiff shown that the council acted unreasonably, arbitrarily, illegally or in abuse of its discretion in revoking the plaintiff's certification under the authority of General Statutes § § 7-294d(c)(2)(B) and (C). The council's findings that the plaintiff intentionally misrepresented facts on his application documents are supported by substantial evidence in the record, sufficient to satisfy the clear and convincing standard of proof. The plaintiff's appeal is therefore dismissed.
The New Haven Police Department is seeking police officer applicants who demonstrate certain characteristics. Honesty is the most important characteristic that you must demonstrate. It is extremely important that you are completely honest in all your answers. The importance of honesty from the time of application, completion of all documents, the Applicant Questionnaire, written statements, as well as during all interviews cannot be overemphasized. Failure to respond to any question accurately and completely, whether orally or in writing, or providing false information, or omissions thereon, will result in your removal from consideration for appointment. The truthfulness of the information you provide will be subject to verification through investigation as well as a polygraph examination. While filling out documents or orally answering your investigator's questions, you are cautioned to take your time and to be thorough and specific in all answers. If you have any doubt in your mind concerning a particular question, or if you are unsure whether to include certain information, the answer is: include it . You may think that something you have done will eliminate you from further consideration. It may or may not. What will eliminate you is lying or distorting the truth. For example, the abuse of drugs, including marijuana, and/or the abuse of alcohol, may or may not eliminate you. However, lying about it will eliminate you from further consideration.
General Statutes § 7-294a(9) defines " police officer" as " a sworn member of an organized local police department, an appointed constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, 29-18a or 29-19 or any member of a law enforcement unit who performs police duties . . ."