Opinion
No. HHBCV 05 4008872
June 20, 2006
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT
Defendant Administrator, Unemployment Compensation Act ("Administrator") has filed a motion for judgment asking the court to dismiss the appeal of the plaintiff, city of New Britain ("city"). The claimant, Juanita Nazario, was employed as a crossing guard and following the end of the school year made a claim for unemployment benefits. On July 29, 2005, she was found eligible for unemployment compensation benefits by the administrator. Specifically, the administrator found that the claimant was not disqualified under General Statutes § 31-227(d) relative to services provided for an educational institution. Thereafter, the city timely appealed the decision to a referee in the Employment Security Appeals Division who issued a decision on September 22, 2005, which upheld the decision of the Administrator. The city further appealed to the Employment Security Appeals Division Board of Review ("Board"). The decision of the referee dismissing the appeal was upheld by the Board on November 15, 2005. On December 6, 2005, the plaintiff appealed to this court pursuant to General Statutes § 31-249b asking that the decision of the Board be overturned. On February 9, 2006, the Administrator filed a motion for judgment to dismiss the appeal. The Administrator and the city have filed memoranda of law in support of their positions.
General Statutes § 31-227(d)(1) provides in relevant part that "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, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or reasonable assurance that such individual will perform such services in any such capacity for any educational institution in the second of such academic years or terms . . ."
General Statutes § 31-227(d)(2) provides in relevant part that "for service performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services . . ."
A review of the record shows the referee made the following findings of fact:
1. The City of New Britain (CT ER# 00-000-89) employed the claimant, Juanita R. Nazario, from January 1, 2005 to June 22, 2005. At the time of her lack of work separation, the claimant worked as a crossing guard.
CT Page 11796
2. Prior to January 1, 2005, the claimant worked [for the] Board of Education-City of New Britain (CT ER# 00-017-23) as a crossing guard.
3. Effective January 1, 2005, the employer transferred all its crossing guards from the Board of Education payroll to the City of New Britain payroll because . . . it was more administratively feasible for the employer.
4. In June [2005], the employer verbally indicated to the claimant that she had employment for the next school year which would start in late August 2005.
5. On July 5, 2005, the claimant initiated a new claim for unemployment benefits effective July 3, 2005. The Administrator calculated the claimant's weekly benefit rate to be $156.00 using all base period wages earned from April 1, 2004 to March 31, 2005. These base period wages included wages from both the City of New Britain (CT ER# 00-000-89) and the Board of Education-City of New Britain (CT ER# 00-017-23).
6. On August 31, 2005, the claimant resumed employment as a crossing guard with the City of New Britain (CT ER# 00-000-89).
7. The employer assigns crossing guards to work on city streets near city schools. Crossing guards will assist students in crossing city streets safely. Crossing guards are supervised by the New Britain Police Department.
(Return of Record [ROR], p. 22.)
Any appeal of the findings of the Board are governed by Practice Book § 22-9(a), which provides in part: "[t]he Court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses." "The court is bound by the findings of subordinate fact and reasonable factual conclusions [of the board.]" (Internal quotation marks omitted.) Finkenstein v. Administrator, 192 Conn. 104, 112-13, 470 A.2d 1196 (1984). "[T]he court's ultimate duty is to decide whether the referee acted unreasonably, arbitrarily or illegally." (Internal quotation marks omitted.) Id., 113. The same standard is applicable to the review of decisions of the Board. Burnham v. Administrator, 184 Conn. 317, 321-22, 439 A.2d 1008 (1981); Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 686 A.2d 134 (1996).
The referee identified the issue in her decision as "whether the claimant . . . performed in any capacity for an educational institution during an academic year or term and had a reasonable assurance of performing such services at the start of the next academic year or term." (ROR, p. 22.) Based on these facts, the referee found that the claimant was employed by the city, not by the board of education or any other educational institution, and noted that: "[t]he statutory exclusion [from the eligibility for benefits] has long been held to apply only to claimants who are actually employed by an educational institution." (ROR, p. 23.) The referee concluded that at the time of the claimant's lack of work separation, she did not work for an educational institution.
On appeal to the Board, the decision of the referee was affirmed. The Board specifically focused on the issue of whether the city was an educational institution under General Statutes § 31-227(d). Citing Orrico v. Town of Greenwich, Board Case No. 459-BR-93 (4/5/95), Sandreuter v. Town of Greenwich, Board Case No. 1997-BR-93 (8/16/94), Salvatore v. City of Stamford, Board Case No. 1829-84-BR (4/17/86), and Andianus v. City of Stamford, Board Case No. 0060 BR-93 (7/21/93), the Board agreed with the referee that the claimant did not provide services for an educational institution.
The plaintiff has cited Board cases that support its position. Board cases cited by any of the parties are not binding upon the court.
On appeal to this court, the city claims that the Board "erred in affirming the decision of the referee because it is unreasonable, arbitrary, illegal and clearly erroneous as it is in contravention of [General Statutes § 31-227(d)(2)]." (Appeal ¶ 16.) In considering the city's claim it is necessary to review the referenced statute.
As noted in footnote 1 above, General Statutes § 31-227(d) addresses circumstances under which an employee of an educational institution is disqualified from benefits. Section 31-227(d)(2) provides in relevant part that "for service performed in any other capacity for an educational institution [i.e., non-instructional], benefits shall not be paid on the basis of such services . . ." General Statutes § 31-227(d)(3) further provides in relevant part that "with respect to weeks of unemployment beginning after March 31, 1984, for services described in subdivisions (1) and (2), benefits shall not be payable on the basis of such services to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess."
The city claims that "[t]he record clearly shows that the claimant provides services for an educational institution and had reasonable assurance she would provide those services in the next academic year." (Appeal ¶ 11.) It argues that the claimant was an employee of an educational institution for purposes of the application of the Unemployment Compensation Act. It then specifically points to General Statutes § 10-240 to argue that the Board and referee were incorrect in finding that the city was not an educational institution.
General Statutes § 10-240 provides: "Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter."
The city's argument is that under General Statutes § 10-240, towns are made school districts and therefore are "educational institutions" under § 31-227(d). While it is true that "[§]10-240 provides that [e]ach town shall be a school district . . ." (emphasis in original; internal quotation marks omitted); Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 542, 556 A.2d 572 (1989); the city has not provided any authority, nor has research discovered any, to support the proposition that a school district, as that term is employed under § 10-240, is necessarily also an "educational institution" under § 31-227(d). Without such authority, this court is unwilling to say that the board incorrectly applied the law to the facts before it. General Statutes § 10-240 does not convert the city into an educational institution for purposes of the present matter. To adopt the city's position would arguably make every employee of the city of New Britain an employee of an educational institution.
From a reading of the record it is clear that although the claimant performed her duties as a crossing guard for the benefit of school children and others to ensure safe passage to an educational institution, she was not an employee of an educational institution. The referee found that she worked for the city of New Britain (as opposed to the Board of Education) and was supervised by the New Britain Police Department. Moreover, her salary had previously been paid through funds designated for the Board of Education, but for administrative purposes, the source of the payment for her salary was later transferred to the city's regular payroll. Under such circumstances, the referee found she was no longer an employee of an educational institution.
As noted above it is not this court's function to determine the credibility of the witnesses or weigh the evidence presented. That is the function of the administrative agency which cannot be usurped by the court. The pleadings and accompanying exhibits reveal that the Board's decision cannot be said to have been arbitrary, unreasonable or illegal with respect to the benefits due for the period of time January 1, 2005 to June 22, 2005. While for all practical purposes the claimant may have been working in a setting within the penumbra of the educational process, for purposes of the administration of the Unemployment Compensation Act the court finds that there is sufficient evidence to support the legal conclusion of the Board in that regard. Any remedy sought by the city relative to the employment status of crossing guards and its potential liability under the Act is best left to the city's own administrative actions or the pursuit of legislative change.
However, as to the award of benefits calculated based on wages paid for the period April 1, 2004 to December 31, 2004, the inclusion of such wages in the calculation is improper given that the claimant was an employee on the payroll of an educational institution or educational service agency prior to January 1, 2005. Allowing the payment of any benefits based on wages earned during that period of time is unreasonable and arbitrary. Pursuant to Practice Book § 22-9(a), the Board is hereby ordered to remand the case to the referee for the limited purpose of establishing, on the record, the appropriate calculation of the claimant's benefits consistent with her employment outside of an educational institution from January 1, 2005 to June 22, 2005. A return to court shall be made of the additional proceedings conducted in accordance with this order. The court shall retain jurisdiction over the matter and again entertain the defendant Administrator's motion for judgment upon submission of the additional record.
General Statutes § 31-227(d)(4) provides in relevant part: "benefits shall not be payable on the basis of such services under the circumstances prescribed in subdivisions (1), (2) and (3) to any individual who performed such services in an educational institution while in the employ of an educational service agency. For purposes of this subdivision the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing such services to one of more educational institutions."
So ordered.