Opinion
No. 18966.
12-16-2014
Martin A. GOULD v. FREEDOM OF INFORMATION COMMISSION et al.
Martin A. Gould, self-represented, with whom was Mark W. Baronas and, on the brief, Nancy Gould, Hartford, for the appellant (plaintiff). Lisa Fein Siegel, commission counsel, with whom, on the brief, was Colleen M. Murphy, Hartford, general counsel, for the appellee (named defendant). Tara L. Shaw, with whom, on the brief, was John H. Cassidy and Thomas G. Parisot, Waterbury, for the appellee (defendant James Moore et al.).
Martin A. Gould, self-represented, with whom was Mark W. Baronas and, on the brief, Nancy Gould, Hartford, for the appellant (plaintiff).
Lisa Fein Siegel, commission counsel, with whom, on the brief, was Colleen M. Murphy, Hartford, general counsel, for the appellee (named defendant).
Tara L. Shaw, with whom, on the brief, was John H. Cassidy and Thomas G. Parisot, Waterbury, for the appellee (defendant James Moore et al.).
ROGERS, C.J., and ZARELLA, EVELEIGH, McDONALD, ESPINOSA, VERTEFEUILLE and DiPENTIMA, Js.
This appeal originally was argued before a panel of this court consisting of Chief Justice Rogers and Justices Zarella, Eveleigh, McDonald, Espinosa and Vertefeuille. Thereafter, Chief Judge DiPentima was added to the panel and she has read the record and briefs, and listened to a recording of the oral argument prior to participating in this decision.
Opinion
EVELEIGH, J.The plaintiff, Martin A. Gould, a member of the arbitration panel that is the subject of the present case, appeals from the judgment of the trial court dismissing his appeal from the final decision of the defendant Freedom of Information Commission (commission). In its decision, the commission concluded that: (1) the arbitration panel is a committee of the Department of Education (department); and (2) the evidentiary portion of an arbitration hearing under the Teacher Negotiation Act (TNA); see General Statutes § 10–153a et seq. ; is subject to the open meetings provision of the Freedom of Information Act (FOIA); see General Statutes § 1–225(a) ; and ordered the plaintiff, along with the two other members of the three member arbitration panel, to create a transcript of the stenographic record from an arbitration hearing dated January 30, 2010, and to provide that transcript to the defendant Waterbury Republican–American (newspaper) and the defendant Jim Moore, a journalist with the newspaper, who had been excluded from the arbitration proceedings.
The plaintiff appealed from the judgment of the trial court to the Appellate Court and this court transferred the appeal to itself pursuant to General Statutes § 51–199(c) and Practice Book § 65–1.
General Statutes § 1–225(a) provides in relevant part: “The meetings of all public agencies, except executive sessions ... shall be open to the public....”
We note that § 1–225 was amended by No. 10–171, § 4, of the 2010 Public Acts, which made certain changes to the statute that are not relevant to this appeal. For purposes of clarity, we refer to the current revision of the statute.
In this opinion, we refer to the commission, the newspaper and Moore collectively as the defendants.
The plaintiff advances two arguments in support of his contention that the trial court improperly dismissed his appeal. First, the plaintiff claims that, because a TNA arbitration panel is not a “committee of” the department, it does not constitute a “ ‘[p]ublic agency’ ” pursuant to General Statutes (Supp.2014) § 1–200(1)(A). Second, the plaintiff claims that, because the presentation of evidence and testimony at a TNA arbitration hearing constitutes “strategy or negotiations with respect to collective bargaining,” the evidentiary portion of the hearings does not constitute a “ ‘[m]eeting’ ” pursuant to § 1–200(2). See footnote 4 of this opinion. We agree with the plaintiff's first claim and, therefore, reverse the judgment of the trial court.
General Statutes (Supp.2014) § 1–200 provides in relevant part: “(1) ‘Public agency’ or ‘agency’ means:
“(A) Any ... department ... of the state ... including any committee of, or created by, any such ... department....
“(2) ‘Meeting’ means any hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ does not include ... strategy or negotiations with respect to collective bargaining....”
We note that the legislature has also recently made certain amendments to § 1–200 that are not relevant to the present appeal. See Public Acts 2011, No. 11–220, § 1; Public Acts 2013, No. 13–263, § 7. For purposes of clarity we refer to the version of the statute codified in the 2014 supplement.
In view of the fact that we agree with the plaintiff on his first claim, it is unnecessary to reach the second claim.
The final decision of the commission sets forth the following relevant facts. On December 21, 2009, the Torrington City Council rejected a negotiated agreement between the Torrington Board of Education (board) and the Torrington Education Association (association). As required by the TNA, the parties then proceeded to arbitration. See General Statutes § 10–153f (c)(1). Because the board and the association had elected to proceed with a three member arbitration panel rather than a single arbitrator, the parties each selected one arbitrator, then the two arbitrators agreed upon a third, impartial arbitrator. See General Statutes § 10–153f (c)(1). At a hearing dated January 30, 2010, Moore sought to cover the arbitration proceedings for the newspaper. In response to the association's request that Moore be excluded from the proceedings, the arbitration panel, which consisted of the plaintiff, James Larry Foy and Victor Schoen, adjourned to what it designated an executive session, closed to the public. Claiming that the panel violated the open meetings provision of the FOIA by closing the evidentiary portion of the arbitration proceedings to the public, Moore and the newspaper subsequently filed a complaint with the commission, and requested as relief that the commission order the panel to provide a transcript of the hearing.
The commission adopted the proposed final decision of the hearing officer, Victor R. Perpetua, who presided over the hearing dated November 23, 2010.
General Statutes § 10–153f (c)(1) provides: “On the fourth day next following the end of the mediation session or on the one hundred thirty-fifth day prior to the budget submission date, whichever is sooner, the commissioner shall order the parties to report their settlement of the dispute or, if there is no settlement, to notify the commissioner of either their agreement to submit their dispute to a single arbitrator or the name of the arbitrator selected by each of them. Within five days of providing such notice, the parties shall notify the commissioner of the name of the arbitrator if there is an agreement on a single arbitrator appointed to the panel pursuant to subdivision (3) of subsection (a) of this section or agreement on the third arbitrator appointed to the panel pursuant to said subdivision. The commissioner may order the parties to appear before said commissioner during the arbitration period. If the parties have notified the commissioner of their agreement to submit their dispute to a single arbitrator and they have not agreed on such arbitrator, within five days after such notification, the commissioner shall select such single arbitrator who shall be an impartial representative of the interests of the public in general. If each party has notified the commissioner of the name of the arbitrator it has selected and the parties have not agreed on the third arbitrator, within five days after such notification, the commissioner shall select a third arbitrator, who shall be an impartial representative of the interests of the public in general. If either party fails to notify the commissioner of the name of an arbitrator, the commissioner shall select an arbitrator to serve and the commissioner shall also select a third arbitrator who shall be an impartial representative of the interests of the public in general. Any selection pursuant to this section by the commissioner of an impartial arbitrator shall be made at random from among the members appointed under subdivision (3) of subsection (a) of this section. Arbitrators shall be selected from the panel appointed pursuant to subsection (a) of this section and shall receive a per diem fee determined on the basis of the prevailing rate for such services. Whenever a panel of three arbitrators is selected, the chairperson of such panel shall be the impartial representative of the interests of the public in general.”
We note that § 10–153f was amended by No. 11–125, § 1, of the 2011 Public Acts, which made certain changes to the statute that are not relevant to this appeal. For purposes of clarity, unless otherwise noted, we refer to the current revision of the statute.
Because the commission concluded that the evidentiary portion of a TNA arbitration hearing constitutes a meeting of a public agency for purposes of § 1–200, it agreed with Moore and the newspaper that the panel violated the open meetings provision of the FOIA by excluding Moore from the portion of the hearing devoted to the presentation of evidence and testimony. In concluding that a TNA arbitration panel is a public agency, the commission relied on the language of § 10153f (a), which provides that the pool from which TNA arbitration panels are drawn is “in” the department. General Statutes § 10–153f (a). Accordingly, the commission concluded that the panel constituted a committee of the department pursuant to § 1–200(1)(A). As for its conclusion that the evidentiary portion of the arbitration hearing constituted a meeting, the commission relied on this court's decision in Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 663 A.2d 349 (1995). In that decision, although this court concluded that the presentation of last best offers during a TNA arbitration proceeding constituted “strategy or negotiations with respect to collective bargaining” and, therefore, did not fall within the definition of “meeting” pursuant to § 1–200(2), we expressly left open the question of whether the evidentiary portion of a TNA arbitration hearing fell within that definition. (Internal quotation marks omitted.) Id., at 717–18, 663 A.2d 349. Relying on language in Glastonbury Education Assn. that distinguished between the presentation of last best offers and the evidentiary portions of TNA arbitration hearings, the commission concluded that the evidentiary portion of the hearing in the present case was separate from the presentation of the last best offers. On the basis of that distinction, the commission concluded that the evidentiary portion of the hearing did not constitute “strategy or negotiations with respect to collective bargaining.” Therefore, the commission concluded that the evidentiary portion of the hearing constituted a “meeting” pursuant to § 1–200(2) and was subject to the open meetings provision of the FOIA. The commission ordered the members of the arbitration panel and the department to create a transcript of the stenographic record of the hearing dated January 30, 2010, at their own expense and to provide that transcript to the defendants.
General Statutes § 10–153f (a) provides in relevant part: “There shall be in the Department of Education an arbitration panel of not less than twenty-four or more than twenty-nine persons to serve as provided in subsection (c) of this section. The Governor shall appoint such panel, with the advice and consent of the General Assembly, as follows: (1) Seven members shall be representative of the interests of local and regional boards of education and shall be selected from lists of names submitted by such boards; (2) seven members shall be representative of the interests of exclusive bargaining representatives of certified employees and shall be selected from lists of names submitted by such bargaining representatives; and (3) not less than ten or more than fifteen members shall be impartial representatives of the interests of the public in general and shall be residents of the state of Connecticut, experienced in public sector collective bargaining interest impasse resolution and selected from lists of names submitted by the State Board of Education.... Each member of the panel shall serve a term of two years, provided each arbitrator shall hold office until a successor is appointed and, provided further, any arbitrator not reappointed shall finish to conclusion any arbitration for which such arbitrator has been selected or appointed. Arbitrators may be removed for good cause. If any vacancy occurs in such panel, the Governor shall act within forty days to fill such vacancy in the manner provided in section 4–19. Persons appointed to the arbitration panel shall serve without compensation but each shall receive a per diem fee for any day during which such person is engaged in the arbitration of a dispute pursuant to this section. The parties to the dispute so arbitrated shall pay the fee in accordance with subsection (c) of this section.”
The department, the plaintiff and Schoen appealed from the final decision of the commission to the Superior Court, which dismissed the appeal. The trial court held that the commission properly resolved both the issues of whether the panel was a public agency and whether the evidentiary portion of the hearing was a meeting. In dismissing the appeal, the trial court, like the commission, relied on the language of § 10–153f (a) to conclude that the panel was a “committee of” the department and, therefore, a public agency for the purpose of the FOIA. The court also agreed with the commission that the evidentiary portion of TNA arbitration hearings constituted a meeting for purposes of § 1–200(2), concluding that this court has construed the exception for “strategy and negotiations with respect to collective bargaining” from the definition of meeting narrowly, both in Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 712–13, 663 A.2d 349, and Waterbury Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 839, 694 A.2d 1241 (1997). Applying a narrow construction of that exception, the trial court concluded that the commission's order conformed to the “more limited order envisioned by the majority in [Glastonbury Education Assn. ].” This appeal followed.
Prior to oral argument before this court, we directed the parties to be prepared to address the question of whether the plaintiff was aggrieved by the judgment of the trial court, in light of the fact that the commission's order lists as respondents only the department and the “Contract Arbitration Panel.” Despite the failure of the commission's order to list the individual arbitrators as respondents, we conclude that the plaintiff is aggrieved by the judgment and, therefore, has standing to appeal.
“The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.” (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 539, 833 A.2d 883 (2003).
Although the commission's order imposed a responsibility on the “respondents” to provide a transcript, at their expense, to the complainants, the newspaper and Moore, and the commission's order does not list the individual arbitrators as “respondents,” at the time that the order was issued, the “contract arbitration panel” no longer existed. The panel was authorized by § 10–153f, which provides for the creation of such panels for a single purpose, to arbitrate a particular dispute under the TNA. Once the arbitration proceedings were completed, there was no longer any statutory authorization for the panel to continue to exist and function. Accordingly, the commission's order imposed a legal obligation on the individual arbitrators, including the plaintiff, to comply with that order.
In dismissing the appeal, the trial court recognized that the commission's order imposed a legal obligation on the individual arbitrators. The court modified the commission's order regarding the provision of the transcript to the defendants to require the department to be solely responsible for the cost of the transcript. The court did not, however, modify the commission's order insofar as it required the individual arbitrators to share with the department the responsibility of providing the transcript to the defendants.
Because the commission's order, as modified by the trial court, obligates the individual members of the arbitration panel to share in the responsibility of providing the transcript to the defendants, the plaintiff has demonstrated that he has a specific personal and legal interest in the subject matter of this decision, and that this interest has been specially and injuriously affected by the decision of the commission. Accordingly, we conclude that the plaintiff has established aggrievement.
We first address the issue of whether a TNA arbitration panel is a public agency within the meaning of § 1200(1)(A). More precisely, because § 1–200(1)(A) includes within the definition of “ ‘[p]ublic agency’ ” a “committee of” a public agency, and because the department is indisputably a public agency, the issue before us is whether a TNA arbitration panel is a “committee of” the department. The plaintiff contends that the trial court's conclusion that a TNA arbitration panel is a “committee of” the department cannot be reconciled with this court's decision in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 687, 595 A.2d 313 (1991), in which we interpreted that phrase to be confined to subunits of a public agency. The commission responds that, because the plain language of § 10–153f (a) locates the arbitration panel within the department, the panel is a “committee of” the department, and, therefore, a public agency.
The question of whether a TNA arbitration panel constitutes a committee of the department and, therefore, a public agency pursuant to § 1–200(1)(A) presents an issue of statutory construction, over which we exercise plenary review. See Marchesi v. Board of Selectmen, 309 Conn. 608, 614, 72 A.3d 394 (2013). When construing a statute, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider 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.... When 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....” (Internal quotation marks omitted.) Kasica v. Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013).
We begin our analysis with the statutory text. Section 1–200(1)(A) provides in relevant part that the term “ ‘[p]ublic agency’ ” means “[a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official....” (Emphasis added.)
The meaning of the term “committee” was considered in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, 219 Conn. at 685, 595 A.2d 313, when this court construed the term “public agency,” as used in a prior, nearly identical version of § 1–200(1)(A). In that case, the eighth utilities district (district) for the town of Manchester, a public agency, appointed an elections review committee to study the procedures of the annual meeting of the district in order to expedite that process and to obtain greater participation by the electors. Id., at 687, 595 A.2d 313. The elections review committee appointed was composed of one district director and three volunteer electors who held no office in the district. Id. The elections review committee was requested to file a report with the district, but it had no authority to change the procedures of the annual meeting or to alter any provisions of the bylaws. Id. Under these facts, this court concluded that the elections review committee was not a committee within the meaning of the FOIA because “the legislature intended only that committees of public agencies that are subunits composed of members of the public agency be subject to the provisions of the FOIA.” Id., at 697, 595 A.2d 313.
General Statutes (Supp.2014) § 1–200(1)(A) was formerly codified as General Statutes (Rev. to 1991) § 1–18(a). The only relevant differences between the two statutes are that the current statute was amended after this court's decision in Election Review Committee of the Eighth Utilities District in order to add the phrase “or created by” and to further clarify that the term “judicial office” includes the division of Public Defender Services. General Statutes (Supp.2014) § 1–200(1)(A).
As explained more fully in this opinion, we conclude that the arbitration panel neither constitutes a committee created by the department nor, as the trial court determined, the functional equivalent of the department, because the arbitration pool consists of individuals placed on a list by the governor and the panel is not selected by the department. The department serves as a mere repository of the list. Accordingly, we conclude that the inclusion of the term “created by” in § 1–200(1)(A) is not relevant to the present case.
In order to resolve the plaintiff's claim, therefore, we must resolve whether TNA arbitration panels are subunits of the department. To resolve this issue, we look to § 10–153f (a). The first sentence of § 10–153f (a) provides: “There shall be in the Department of Education an arbitration panel of not less than twenty-four or more than twenty-nine persons to serve as provided in subsection (c) of this section.” (Emphasis added.) The defendants assert that this language clearly and unambiguously supports their position that the arbitration panel is a subunit of the department. We disagree, however, and conclude that an equally plausible reading of the language is that the list is maintained “in” the department solely for administrative purposes.
Section 10–153f (a) gives the governor, not the Commissioner of Education (commissioner), the power to select panel members. The arbitrators are appointed to the arbitration panel “pool” by the governor. The statute also mandates that seven members represent local and regional boards, seven members represent the bargaining unit, and ten to fifteen members are impartial representatives of the public in general. General Statutes § 10–153f (a). Thus, after the Governor fulfills his mandate, a list is established of this cross section of arbitrators, which is maintained by the department. There is no one panel of arbitrators. The panels are selected from the pool of arbitrators established by the governor. It is also evident that the people who comprise this list come from a cross section of members of the general public. The language of the statute does not allow for one arbitrator to be appointed who is a member of the State Board of Education or the department. General Statutes § 10–153f (a). Moreover, the commissioner has no power to remove a member of the panel. Section 10–153f (a) provides that “[a]rbitrators may be removed for good cause. If any vacancy occurs in such panel, the Governor shall act within forty days to fill such vacancy in the manner provided in section 4–19.”
The statute further demonstrates the separation between the panel members and the department by requiring that the arbitrators be paid by the parties and not by the department. General Statutes § 10–153f (a). Section 10–153f (a) further provides: “Persons appointed to the arbitration panel shall serve without compensation but each shall receive a per diem fee for any day during which such person is engaged in the arbitration of a dispute pursuant to this section. The parties to the dispute so arbitrated shall pay the fee in accordance with subsection (c) of this section.”
The arbitration panel does not just have a great deal of autonomy, it has complete autonomy. Pursuant to § 10–153f (c)(2), the chairperson of the arbitration panel or the single arbitrator sets the date, time, and place for a hearing to be held and notifies the board of education and the department. The chairperson of the arbitration panel or the single arbitrator presides over the hearing. General Statutes § 10–153f (c)(2). The panel or the single arbitrator has the discretion to continue the hearing, but must complete the hearing within twenty-five days after its commencement. General Statutes § 10–153f (c)(3). After the hearing, the arbitrators or the single arbitrator renders a decision in writing and files “one copy of the decision with the commissioner, each town clerk in the school district involved, the legislative body or bodies of the town or towns for the school district involved, or, in the case of a town for which the legislative body of the town is a town meeting or representative town meeting, to the board of selectmen, and the board of education and organization which are parties to the dispute.” General Statutes § 10–153f (c)(4). This decision is final and binding upon the parties to the dispute unless a rejection is filed and the award of the arbitrators or the single arbitrator shall not be subject to rejection by referendum. General Statutes § 10–153f (c)(4).
On the basis of the foregoing, it would appear reasonable to conclude that, aside from having their name on the list, the arbitrators have no association whatsoever with the department. Nevertheless, it would also be reasonable to conclude that the legislature's use of the term “in the department” indicated an intention to have the panel members be considered part of the department. “ ‘[I]t is well settled that when two incongruent readings of a statute are equally plausible, the statute is ambiguous.’ See, e.g., Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 9, 976 A.2d 668 (2009) ; Hees v. Burke Construction, Inc., 290 Conn. 1, 12, 961 A.2d 373 (2009).” Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 198, 3 A.3d 56 (2010). Accordingly, we conclude that § 10–153f (a) is ambiguous and, pursuant to § 1–2z, resort to extratextual sources in order to determine its meaning.
The particular amendment to § 10–153f (a) that inserted the word “in” was a part of a wide-ranging amendment to the statutes relating to state agencies enacted in 1977. See Public Acts 1977, No. 77–614, § 304 (P.A. 77–614). It is likely that, because the prior version of the statute referred to “the secretary” without defining the agency to which “the secretary” belonged; see General Statutes (Rev. to 1977) § 10–153f ; the insertion of the phrase “in the department of education” was simply to clarify that aspect of the statute and to provide that the list of arbitrators was to be maintained “in” the department of education.
In the absence of legislative guidance, we next consider the dictionary definition of the word “in.” See Stone–Krete Construction, Inc. v. Eder, 280 Conn. 672, 678, 911 A.2d 300 (2006) (“[t]o ascertain the commonly approved usage of a word, we look to the dictionary definition of the term” [internal quotation marks omitted] ). According to Merriam–Webster's Collegiate Dictionary (11th Ed.2003), the word “in” is used to indicate physical surroundings. The word “in” clearly does not mean that the arbitrators are employees, or are associated with, the department because the three arbitrators in this case are, in effect, independent contractors, whom, aside from being on the list, have no association with the department. The arbitrators do not act for or on behalf of the department. Moreover, the panel members are not physically located in the department and, in fact, have no association of any kind with the department. Indeed, if the arbitrators did have some association with the department it could affect the very neutrality which is essential to the appointment of the arbitration panel, particularly the third arbitrator. As we have often stated, “[w]e construe a statute in a manner that will not ... lead to absurd results.” (Internal quotation marks omitted.) Raftopol v. Ramey, 299 Conn. 681, 703, 12 A.3d 783 (2011). Therefore, the only physical presence connected with the department is the list of arbitration panel members. This list is maintained by the department and is located in the department. We conclude, therefore, that the panel members are not in the department.
Nevertheless, the fact that the list is maintained by the department is not dispositive of the case. Pursuant to Elections Review Committee of the Eighth Utilities District, it is the relationship of the members of the arbitration panels with either the board or the department which is determinative. In this instance, it is abundantly clear from both the language of § 10–153f and the specific facts of the case that the arbitrators have no relationship with the department. The arbitration panels neither conduct business for, nor make decisions on behalf of, the department. They do not act for the department. The panels are not composed of members of the department. We, therefore, conclude that arbitration panels are neither “committees” nor “subunits of committees” of the department.
Thus, pursuant to § 10–153f, the panel controls the conduct of the meeting, the scheduling of hearings, and makes the ultimate decision without interference from anyone. The fact that the commissioner may be able to call the parties in to see him; see General Statutes § 10–153f (c)(1) ; is a separate issue from the duties of the panel. The commissioner has no control over the panel members. In fact, the statute specifically provides that the chair of the panel shall preside over the hearing. General Statutes § 10–153f (c)(2). There is no wording in the statute that mandates that the hearings must be public. The chair determines the manner in which the hearing is conducted. The decision of the panel is final, subject to rejection, further panel review or judicial review. General Statutes § 10–153f (c)(8). Moreover, the commissioner has no power to change the decision of the panel. Any suggestion to the contrary belies the facts surrounding the arbitration process.
An examination of § 10–153f reveals no language allowing the commissioner to oversee the panel in any way. For instance, § 10–153f (c)(1) does allow the commissioner to “order the parties to appear before [him] during the arbitration period.” This authority, however, relates to the commissioner's authority over the parties rather than the arbitration panel. Section 10–153f (c)(4) requires the panel to send a copy of its decision to the commissioner, but there is no provision that allows the commissioner to change the decision in any way. Section 10–153f (c)(5) allows the commissioner to “assist the arbitration panel ... as may be required during the course of the arbitration....” This duty would seem to relate to the appointment of panelists, but certainly would suggest that the commissioner assists the panel only if it either requires or asks for assistance. Section 10–153f (c)(7) requires further notification to the commissioner if the school district rejects the award. This language relates to notice and does not suggest that the commissioner can exercise any power over the arbitrator's decision. In addition § 10–153f (d) provides: “The commissioner and the arbitrators or single arbitrator shall have the same powers and duties as the board under section 31–108 for the purposes of mediation or arbitration pursuant to this section, and subsection (c) of section 10–153d, and all provisions in section 31–108 with respect to procedure, jurisdiction of the Superior Court, witnesses and penalties shall apply.” Again, this statutory language would suggest that, at least in certain areas, the powers of the arbitration panel and the commissioner are equal, as opposed to the commissioner overseeing the panel. This section may also relate to § 10–153f (c)(1), which allows the commissioner to “order the parties to appear before said commissioner during the arbitration period....”
“It is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly ... or to use broader or limiting terms when it chooses to do so.” (Citations omitted; internal quotation marks omitted.) Marchesi v. Board of Selectmen, supra, 309 Conn. at 618, 72 A.3d 394. If the legislature wished to have such hearings conducted in public, it could have expressed that intent after our decision in Elections Review Committee of the Eighth Utilities District. Twenty-three years has passed since our decision, and the legislature has yet to do so. “We may infer that the failure of the legislature to take corrective action within a reasonable period of time following a definitive judicial interpretation of a statute signals legislative agreement with that interpretation. See, e.g., Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 665–66, 935 A.2d 1004 (2007).” Caciopoli v. Lebowitz, 309 Conn. 62, 77–78, 68 A.3d 1150 (2013). “Although we are aware that legislative inaction is not necessarily legislative affirmation ... we also presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) Id., at 78, 68 A.3d 1150. Section 10–153f contains many directives to the panel. It does not, however, direct that the hearings be held in public. In fact, it has specifically directed that the conduct of the proceedings be directed by the chair. The fact that the panel is completely autonomous and is comprised of members who are not either a part of or acting on behalf of the department persuades us that an arbitration panel is not a “committee” of a state agency.
In State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 500, 709 A.2d 1129 (1998), in considering General Statutes § 31–100, we recognized the importance of privacy in the arbitration process. We observed that “[i]t is not disputed that arbitration conducted with private arbitrators may be closed to the public. If proceedings before the mediation board were required to be conducted publicly, there would be a significant difference between arbitration before that body and privately conducted arbitration. Indeed, the testimony at trial indicated that requiring proceedings before the mediation board to be open to the public would create a significant deterrent to parties considering arbitration before the mediation board. This, in turn, would work to defeat the legislature's goal of providing low cost arbitration services as an effective alternative to private arbitrators to facilitate the resolution of labor disputes.
“Concomitantly, an interpretation of [General Statutes] § 1–18a (b) that excludes grievance arbitration proceedings from the definition of meetings does not impede the goals underlying the [FOIA]. The [FOIA] was enacted for the purpose of assuring public access to information relating to the activities of public agencies. Although the legislature specifically exempted certain types of activities from the definition of meeting under § 1–18a (b), it did not specifically mention grievance arbitration proceedings in that subsection. We presume, however, that it enacted § 1–18a (b) with knowledge of the existence of § 31–100. Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., [238 Conn. 337, 346–47, 680 A.2d 1261 (1996) ]. It is reasonable to conclude, therefore, that the legislature decided that the benefit associated with the confidentiality of grievance arbitration proceedings outweighed the benefit to be derived from granting public access to these proceedings, and, consequently, it did not amend or overrule § 31–100 so as to include grievance arbitration proceedings within the definition of meeting under § 1–18a (b). Thus, the exclusion of grievance arbitration proceedings from the definition of meeting is within the contemplation of the [FOIA].” Id., at 500–501, 680 A.2d 1261.
Although the statute under consideration in State Board of Labor Relations v. Freedom of Information Commission, supra, 244 Conn. at 487, 709 A.2d 1129, was different than § 10–153f, the reasoning applies with equal force. If the legislature intended these proceedings to be public it could have easily stated so in the statute.
In Zitser v. Central Connecticut State University, Freedom of Information Commission, Docket No. FIC 1991–163 (November 27, 1991), a promotion and tenure committee at Central Connecticut State University was composed of faculty who were employees of the university. That committee received and reviewed recommendations of all candidates for tenure and promotion at the university, and made nonbinding recommendations to the president. Id. The commission concluded that, even though this was a committee comprised of faculty members, it was not a public agency within the meaning of the FOIA. Id. The commission ruled that “the [university's] faculty does not meet to conduct university business, and does not act in a legislative capacity or otherwise exercise supervision, control, jurisdiction or advisory power over decisions made at [the university].” Id. Similarly, neither the plaintiff nor the other arbitrators appointed to the panel in the present case conduct department business, act in a legislative capacity or have any control, input or advisory power over decisions made at the department.
It is undisputed that, in the present case, the arbitration panel was created by the association selecting the plaintiff, the board selecting Schoen, and those two arbitrators selecting Foy. The neutral arbitrator was paid by the association and the board, with each party paying one half of his fee. Pursuant to § 10–153f, the neutral arbitrator is not an employee of the department. The neutral arbitrator does not represent the department. The department does not fund the arbitration panel. The department does not set the dates or times for the hearing, nor does it control any of the activities or performance of the arbitrators. The neutral arbitrator, with the help of the other two arbitrators, controls the arbitration hearing without any intervention, input or direction for the department. The department has no power to approve or alter the decision of the arbitrators. The decision is final unless there is an appeal that then goes to a review panel, which is also composed of independent arbitrators. The department does not direct or interpret any of the statutory factors upon which the arbitrators base their decision. The plaintiff is a member of the pool selected by the governor and approved by the legislature, on behalf of the employee group, and served as arbitrator for the association. Schoen is a member of the panel selected by the governor and approved by the legislature, on behalf of the employer group, and served as the arbitrator for the board. The association selected the plaintiff for this arbitration. It had the right to select him, or some other arbitrator. The plaintiff received no government funding, he set his own fee, billed the association and was paid by the association. The board selected Schoen for the arbitration. It had the right to select him or some other arbitrator. Schoen received no government funding, he set his own fee, billed the board and was paid by the board.
Arbitrators function in an autonomous fashion. As the foregoing demonstrates, the arbitration panel was not created by the government. A reasonable reading of § 10–153f, therefore, cannot support a determination that the commissioner “oversees” the arbitration process. The commissioner is directed to receive notice of the panel's decision regardless of whether that decision has been accepted by the school district. See General Statutes § 10–153f (c)(4). The commissioner may assist the panel, but there is no direction requiring or allowing for his participation in the arbitration hearing. See General Statutes § 10–153f (c)(5). In view of the total absence of a relationship between the panel members and the department, we conclude that the arbitration panel is not a “committee” of or “created by” the department.
We further note that the legislature chose not to use the phrase “for administrative purposes only” in P.A. 77–614, § 304, which amended § 10–153f. Cf. P.A. 77–614, § 305 (“[t]he Connecticut Historical Commission shall be within the [department] for administrative purposes only”). The phrase “for administrative purposes only” is defined in General Statutes § 4–38f (a) as follows: “An agency assigned to a department for administrative purposes only shall: (1) Exercise any quasi-judicial, rule-making or regulatory authority, licensing and policy-making functions which it may have independent of such department and without approval or control of the department; (2) prepare its budget, if any, and submit its budgetary requests through the department; and (3) hire its own personnel or enter into contracts, if authorized by law, or if the general assembly provides or authorizes the expenditure of funds therefor.” In addition, § 4–38f (b) provides: “The department to which an agency is assigned for administrative purposes only shall: (1) Provide record keeping, reporting, and related administrative and clerical functions for the agency to the extend deemed necessary by the department head; (2) disseminate for the agency any required notices, rules or orders adopted, amended or repealed by the agency; (3) provide staff for the agency subject to the provisions of subdivision (3) of subsection (a) of this section; and (4) include in the departmental budget the agency's budgetary request, if any, as a separate part of said budget and exactly as prepared and submitted to the department by the agency.” Thus, the term “for administrative purposes only” applies to an “agency” assigned to a department. Therefore, the legislature's omission of the phrase “for administrative purposes only” in P.A. 77–614, § 304, indicates that the legislature did not consider the panel to be either an agency or subunit of an agency. Indeed, there would be no need for the legislature to use that phrase if, in its view, an arbitration panel was neither an agency nor subunit of an agency.
It is evident that, as we stated in State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 500–501, 709 A.2d 1129 (1998), “the legislature decided that the benefit associated with the confidentiality of [grievance] arbitration proceedings outweighed the benefit to be derived from granting public access to these proceedings.”
The legislature knows how to require hearings to be held in public. For example, General Statutes § 31–110 provides: “Subject to regulations to be made by the [labor relations] board, the complaints, orders and testimony relating to a proceeding instituted under section 31–107 may be available for inspection or copying. All proceedings pursuant to said section shall be open to the public.” The fact that this type of language was omitted from § 10–153f, we conclude, is the most persuasive evidence of the legislature's intent not to have these proceedings open to the public.
Finally, we note that the arbitration panel is also not, as the trial court concluded, the “functional equivalent” of the department. The only function or decision-making authority the arbitrators possess is simply to decide which best offers should be accepted. There is no governmental or other decision-making role. The department has no participation in the arbitration process. The arbitrators do not perform a governmental function. The government does not decide either what wages are paid, or what hours are worked. The arbitrators are paid by the entity which retains them to serve as arbitrators. There is little or no government involvement or regulation. The decision of this court in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, 219 Conn. at 685, 595 A.2d 313, therefore, controls the present case. Consequently, the panel members are not members of the agency and, therefore, do not fall within the mandates of the FOIA. As we recently stated in Commission of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 550, 93 A.3d 1142 (2014), “The General Assembly retains the prerogative to modify or clarify [the FOIA] as it sees fit.”The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the plaintiff's appeal.
In this opinion ROGERS, C.J., and ZARELLA and VERTEFEUILLE, Js., concurred.McDONALD, J., with whom DiPENTIMA, J., joins in part, dissenting.
Today's majority opinion substantially frustrates the clear legislative policy requiring transparency in the operations of government that is contained in the Freedom of Information Act (FOIA), General Statutes (Supp.2014) § 1–200 et seq. In doing so, the majority has undermined the integrity of this court's previous construction of the FOIA and has thwarted the goal of open government by looking to a purported ambiguity in the Teacher Negotiation Act (TNA) to conclude that a TNA arbitration panel is not a public agency subject to the open meetings requirement of the FOIA. While I agree with and join Justice Espinosa's comprehensive dissenting opinion concluding that the arbitration panel is a public agency under General Statutes (Supp.2014) § 1–200(1)(A), I write separately to acknowledge the practical significance of the majority's misinterpretation of the meaning of “public agency” under the FOIA.
General Statutes § 10–153f.
General Statutes (Supp.2014) § 1–200 provides in relevant part: “(1) ‘Public agency’ or ‘agency’ means:
“(A) Any ... department ... of the state ... including any committee of, or created by, any such ... department....” (Emphasis added.)
Although § 1–200 has been amended since the events underlying this appeal; see, e.g., Public Acts 2011, No. 11–220, § 1; the amendments have no bearing on the merits of this appeal. In the interest of simplicity, I refer to the current revision of the statute codified in the 2014 supplement.
In Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, 219 Conn. at 687, 595 A.2d 313, we interpreted the phrase “committee of” to mean subunit.
General Statutes (Supp.2014) § 1–200 provides in relevant part: “(1) ‘Public agency’ or ‘agency’ means:
“(A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official....”
Although § 1–200 has been amended since the events underlying this appeal; see, e.g., Public Acts 2011, No. 11–220, § 1; the amendments have no bearing on the merits of this appeal. In the interest of simplicity, I refer to the current revision of the statute codified in the 2014 supplement.
Consistent with the majority opinion and this court's decision in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 687, 595 A.2d 313 (1991), I use the term “subunit” to refer to a committee of a public agency.
We specifically had noted in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, 219 Conn. at 693, 595 A.2d 313, that if the statute were to include within the meaning of public agency a committee “created by” the establishing public agency, the definition would be significantly broader. We explained: “A ‘committee of’ an agency would include a body composed solely of nonmembers of the agency to whom the agency had assigned a particular task only if the use of the possessive preposition were equivalent to ‘created by.’ Under such a construction, even one person, wholly unassociated with the agency except for the project assigned to him for study and recommendation, such as an outside consultant, would constitute a ‘committee of’ the agency.” Id. Subsequent to our decision in Elections Review Committee of the Eighth Utilities District, the legislature expanded the definition of public agency in § 1–200(1)(A) to include a committee “created by” a public agency. Public Acts 1993, No. 93–195, § 1. Because I conclude that a TNA arbitration panel is a “committee of” the department, however, it is unnecessary to address in this dissent whether it also is a committee created by the department. The legislature's response to this court's decision, however, supports the conclusion that it intended the definition of a committee of, or created by, a public agency to be broad enough to encompass the TNA arbitration panels. Our decision stated that if the statute included the phrase “created by,” the definition would include even an outside contractor, whose only association with the agency was the project assigned to him. Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, at 693, 595 A.2d 313. In response, the legislature added precisely that language.
As this court previously has explained: “[T]he ‘[FOIA] expresses a strong legislative policy in favor of the open conduct of government and free public access to government records [and meetings].’ ... At the time of its unanimous passage by the General Assembly, the act was noted for making ‘sweeping changes' in the existing ‘right to know’ law so as to ‘mark a new era in Connecticut with respect to opening up the doors of city and state government to the people of Connecticut.’ 18 S. Proc., Pt. 5, 1975 Sess., p. 2323; 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3907. The general rule under the act is disclosure.... As Representative Martin B. Burke, who sponsored the bill which was enacted, expressly stated on the floor of the house, the intent of the [FOIA] ‘is to make every public record and every public meeting open to the public at all times with certain specified exclusions.’ 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3907.” (Citations omitted.) Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980). “[T]his court consistently has interpreted [the FOIA's legislative policy] to require diligent protection of the public's right of access to agency proceedings. Our construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed.” (Internal quotation marks omitted.) Stamford v. Freedom of Information Commission, 241 Conn. 310, 314, 696 A.2d 321 (1997). Importantly, the “policy of liberal access to [meetings of public agencies] would necessarily be thwarted if [the statutory definition of] ‘public agencies' were given a narrow construction....” Board of Trustees
v. Freedom of Information Commission, supra, at 551, 436 A.2d 266.Rather than view the question before us through this broad interpretive lens favoring transparency, the majority myopically focuses on concerns that, under the TNA, an arbitration panel is not wholly funded by the government and is subject to minimal oversight by the Department of Education (department) to conclude that the panel cannot be a “subunit” of the department. Interestingly, although the majority concludes that the statutory language in the TNA is ambiguous, it fails to resolve this ambiguity in favor of the legislative purpose of the FOIA. As a result, the majority places a veil over evidentiary proceedings that concern undoubtedly public issues—municipal budgets and teachers' salaries.
I particularly agree with Justice Espinosa's criticism of the majority's failure to consider whether the arbitration panel could be deemed a public agency in its own right under § 1–200, even if not a subunit of the department. See footnote 3 of Justice Espinosa's dissenting opinion. In DiFazio v. Executive Director, Judicial Review Council, Freedom of Information Commission, Docket No. FIC 89–115 (March 14, 1990), the Freedom of Information Commission concluded that the Judicial Review Council was a public agency under the FOIA because it is “an institution, bureau, board, commission, or authority of the state.” Like the TNA arbitration panels, the Judicial Review Council is made up of individuals appointed by the governor with the approval of the General Assembly; General Statutes § 51–51k ; its members do not receive compensation for their services but instead are only reimbursed for expenses actually incurred in performance of their duties; General Statutes § 51–51t ; and the Judicial Review Council performs statutorily defined public duties. See General Statutes §§ 51–51k through 51–51u.
Because I conclude that the arbitration panel pool is a subunit of the department, I need not consider whether the panel is a public agency in its own right, independent of any relationship it has with the department. I observe, however, that although the majority has concluded that the panel is not a public agency by virtue of being part of the department, it provides no explanation as to why the panel does not otherwise fit the definition of “ ‘[p]ublic agency’ ” in § 1–200(1)(A), despite the fact that the panel is created by statute, is governed by an extraordinarily complex statutory scheme, and is comprised of members who are appointed by the governor and confirmed by the legislature. Moreover, the definition of “ ‘[p]ublic agency’ ” in § 1–200(1)(A) is extraordinarily broad, encompassing “[a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions, and for purposes of this subparagraph, ‘judicial office’ includes, but is not limited to, the Division of Public Defender Services....” General Statutes (Supp.2014) § 1–200(1)(A). Yet the majority provides no discussion whatsoever explaining why it has failed, in its statutory construction analysis, to consider whether the arbitration panel, even if it is not a “committee of” the department, is a public agency in its own right.
The significance of the majority's conclusion is undeniable. As the most recent available data reflects, more than $4.5 billion was spent by Connecticut school districts on instructional staff and services in the 2009–2010 school year. Connecticut Department of Education, Connecticut Education Data and Research, “Finance—Total Annual Expenditures by Type,” available at http:// sdeportal.ct.gov/Cedar/WEB/ct_report/FinanceDTViewer.aspx (last visited December 5, 2014). This expenditure represented more than 37 percent of the $12.1 billion spent by all municipalities for all governmental functions for 2009–2010. See Office of Policy and Management, “Municipal Fiscal Indicators, Fiscal Years Ended 2008–2012,” (last modified March, 2014), p. A–8, available at http://www.ct.gov/opm/lib/opm/FI_2008-2012_Asof3-6-14.pdf (last visited December 5, 2014). Thus, in concluding that the TNA arbitration panels are not public agencies, and therefore ensuring that TNA evidentiary hearings remain closed to the public, the majority allows municipalities and the representatives of municipal employees to shield from public view the adjudicative process by which a significant portion of municipal resources are spent each year. The FOIA does not allow such a result.
We take judicial notice of statistics that are public record. See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 770 n. 28, 12 A.3d 817 (2011) (recognizing that courts may take judicial notice of public records); 29 Am.Jur.2d 134, Evidence § 109 (2008) (recognizing that state and federal records and statistics are recognized as public records of which courts may take judicial notice); see, e.g., Sheff v. O'Neill, 238 Conn. 1, 38 n. 42, 678 A.2d 1267 (1996) (taking judicial notice of statistics compiled by Hartford Board of Education).
Without any explanation, the majority suggests that the meaning of the word “in” is limited to indicating “physical surroundings.” It then confidently asserts that the members of the arbitration panel pool are not located in the department. The only aspect of the arbitration panel pool that is “in” the department, the majority states, is the list. There is simply no basis to interpret the word “in” in such a narrow manner. To illustrate the lack of logic in the limited scope of the majority's definition: If the word “in” did indeed have such a narrow meaning, then the statement, “the Superior Court is in the Judicial Branch” would mean that the Superior Court is somehow physically contained within the Judicial Branch.
The majority has concluded that members of the TNA arbitration panels, who are appointed by the governor, with the advice and consent of the General Assembly, and who discharge specific governmental duties in accordance with a comprehensive statutory scheme; General Statutes § 10–153f ; are not “officials” of a “ ‘[p]ublic agency’ ” of the state within the meaning of § 1–200(1)(A). Such a conclusion ignores the essence of the arbitration panel members' statutory functions and is belied by the definition of a “ ‘[p]ublic official’ ” in our state's Code of Ethics, which encompasses “any person appointed to any office of the ... executive branch of state government by the Governor or an appointee of the Governor, with or without the advice and consent of the General Assembly....” General Statutes (Supp.2014) § 1–79(11). I cannot abide such an interpretation of our open government laws.
Accordingly, I respectfully dissent.
ESPINOSA, J., with whom McDONALD, J., joins, and DiPENTIMA, J., joins in part, dissenting.
The present appeal requires this court to resolve an issue that we left open in Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 663 A.2d 349 (1995), namely, whether the evidentiary portions of last best offer arbitration hearings under the Teacher Negotiation Act (TNA); General Statutes § 10–153a et seq. ; constitute meetings by a public agency that are subject to the requirements of the Freedom of Information Act (FOIA), General Statutes (Supp.2014) § 1–200 et seq. I disagree with the majority's conclusion that the TNA arbitration panel in the present case does not constitute a public agency, or the functional equivalent of one, for purposes of the FOIA. Moreover, because I conclude that such arbitration panels are public agencies, and, even if they are not public agencies, they are certainly their functional equivalent, I reach the second issue presented in this appeal, and conclude that the evidentiary portions of last best offer arbitration hearings before such panels constitute meetings for purposes of the FOIA. I would therefore affirm the judgment of the trial court dismissing the appeal of the plaintiff, Martin A. Gould, from the final decision of the named defendant, the Freedom of Information Commission (commission). Accordingly, I respectfully dissent.
I
THE ARBITRATION PANEL IS A PUBLIC AGENCY
I agree with the majority that the proper inquiry in resolving the question of whether a TNA arbitration panel is a public agency begins with our decision in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 687, 595 A.2d 313 (1991), in which we interpreted the definition of “ ‘[p]ublic agency’ ” in General Statutes § 1–18a (a), now General Statutes (Supp.2014) § 1–200(1)(A),1 to include subunits of a public agency.2 For two reasons, however, I disagree with the majority that TNA arbitration panels are not public agencies for purposes of the FOIA. First, the plain language of General Statutes § 10–153f provides that TNA arbitration panels are indeed subunits of the Department of Education (department). Second, even assuming that the statutory language is ambiguous, the legislative history of § 10–153f, as well as the public policy principles underlying both the FOIA and the TNA, clarify that the legislature intended that the arbitration panel created by § 10–153f, as well as the resulting individual TNA arbitration panels, be subunits of the department.3 I will discuss each of these two bases for my disagreement with the majority in turn.
Preliminarily, I observe that the status of the individual, three member TNA arbitration panels is inextricably intertwined with that of the arbitration panel created by § 10–153f (a), which has the sole function of serving as a “pool” from which the individual panels are created. Without the pool, there would be no individual panels, and without the individual panels, the pool would serve no active function. In order, therefore, to resolve the question of whether the individual panels are public agencies, one must examine both the pool and the individual panels as they function together. In this dissent, I will refer to the larger arbitration panel as the arbitration panel pool, and to the smaller panels as TNA arbitration panels.
A
“Because the question is one of statutory construction, we afford plenary review, guided by well established principles regarding legislative intent.” Ethics Commission v. Freedom of Information Commission, 302 Conn. 1, 8, 23 A.3d 1211 (2011). It is well established that we interpret FOIA provisions in light of “[t]he overarching legislative policy of the FOIA ... [which] favors the open conduct of government and free public access to government records.” (Internal quotation marks omitted.) Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 712, 663 A.2d 349. Keeping that principle in favor of openness in mind, I turn to the statutory text. The plain language of the TNA provides that the arbitration panel pool is in the department. Specifically, § 10–153f (a) provides in relevant part: “There shall be in the Department of Education an arbitration panel of not less than twenty-four or more than twenty-nine persons to serve as provided in subsection (c) of this section....” (Emphasis added.) There is only one reasonable interpretation of the phrase “in the [d]epartment”—the arbitration panel pool is part of the department. The phrase “in the [d]epartment” is not qualified in any manner that suggests that the legislature intended to limit its meaning, and the overall statutory scheme supports the conclusion that both the arbitration panel pool and the TNA arbitration panels formed from it are part of the department, subject to the oversight of the Commissioner of Education (commissioner).
The key word in the statutory phrase is, of course, the unrestricted word “in,” which is a preposition. It is a basic rule of grammar that the function of a preposition is to express the relation between the object of the preposition and the word or phrase that is being modified by the preposition. In this case, the preposition “in” connects “an arbitration panel” (the arbitration panel pool) and “the [d]epartment.” Obviously, the word “in” has many different meanings, and the particular meaning depends on the nature of the two things being connected by “in.”4 Because the department and the arbitration panel pool are organizational entities, the most logical understanding of the relationship between them is that the word “in” clarifies the organizational relationship between the two of them. That is, the arbitration panel pool is “in” the department in the sense that the department is a “whole,” which includes within it a “part,” the arbitration panel pool. See Merriam–Webster's Collegiate Dictionary (11th Ed.2003) (including within definition of word “in”: “used as a function word to indicate inclusion”). Nothing in § 10–153f (a) or in the remainder of the TNA controverts the plain meaning of the statement: “There shall be in the Department of Education an arbitration panel....” Emphasis added.) In fact, as I explain, viewing the statutory scheme as a whole confirms the commonsense reading of that statement.
In support of its position that the arbitration panel pool is not in the department, the majority focuses on only some of the statutory provisions that comprise the TNA, and fails to account for the provisions that do not support its position. Specifically, the majority places heavy reliance on the fact that § 10–153f (a) gives the governor the authority to appoint the panel members with the advice and consent of the General Assembly, and to select the names of those appointed to the arbitration panel pool from lists of names submitted by three different groups, depending on which of three categories the panel member falls under, namely: (1) those that are representative of the interests of local and regional boards of education; (2) those that are representative of the interests of bargaining representatives of certified employees; and (3) those that are impartial representatives of the interests of the public in general. General Statutes § 10–153f (a). The mere fact that the governor appoints panel members, however, does not have any bearing on the meaning of the statement that the arbitration panel pool is “in” the department. It is in fact common for the governor to appoint persons to positions on boards and commissions within executive agencies. See, e.g., General Statutes § 4–6 (governor has authority to appoint department heads, including Commissioner of Education); General Statutes § 20–139a (governor has authority to appoint members of Connecticut Board of Examiners for Opticians, which is in Department of Public Health); General Statutes § 31–102 (governor has authority to appoint members of Connecticut State Board of Labor Relations, which is in Labor Department).
The majority also argues that the statute's failure to require the department to compensate the panel members injects a degree of ambiguity into the meaning of the statement that the arbitration panel pool is “in” the department. Specifically, § 10–153f (a) provides that panel members “shall serve without compensation but each shall receive a per diem fee for any day during which such person is engaged in the arbitration of a dispute pursuant to this section.” The majority has cited to no authority, however, for the proposition that only persons who are compensated by a department or agency can be members of that body.
Furthermore, the majority's assertion that the significant degree of autonomy granted to the TNA arbitration panels supports a conclusion that “aside from having their name on the list, the arbitrators have no association whatsoever with the department”; (emphasis added); is blatantly wrong and contradicted by the majority's own interpretation of the statutory language to mean that the arbitration panel pool is in the department for administrative purposes. The majority's statement also ignores the complexity of the statutory scheme, which crafts a carefully balanced relationship between the TNA arbitration panels and the department. That is, the TNA simultaneously gives the panels a great degree of autonomy, yet subjects the entire arbitration process to the oversight of the commissioner, who bears the responsibility to ensure that the desired end result—an agreement between the parties—is achieved. My review of the statutory scheme reveals that, far from having no association with the department, the TNA arbitration panels are integrally connected to it. The statutory scheme as a whole confirms what the plain language of § 10–153f provides—the arbitration panel pool and the individual TNA arbitration panels are part of the department.The commissioner's oversight authority begins immediately with the selection process for the TNA arbitration panels, a process characterized by regular guidance from the commissioner, who functions as a safeguard to prevent the process from failing. For example, the parties are required to notify the commissioner of their progress at every step of the selection process. Section 10–153f (c)(1) provides that if the parties determine to proceed with a three member TNA arbitration panel, “the commissioner shall order the parties ... to notify the commissioner of ... the name of the arbitrator selected by each of them....” That is, the board selects an arbitrator who represents the interests of local and regional boards of education, and the employee bargaining unit selects an arbitrator who represents its interests, then each party notifies the commissioner of its selection. General Statutes § 10–153f (a) and (c)(1). With respect to the third, neutral arbitrator, the statute provides that “the parties shall notify the commissioner of the name of the arbitrator if there is ... agreement on the third arbitrator appointed to the panel pursuant to [§ 10–153f (a)(3) ]....” General Statutes § 10–153f (c)(1). It is highly significant that § 10–153f (c)(1) gives the commissioner the authority to select some or all of the panel members if the parties fail to notify the commissioner of their selections as required, and authorizes the commissioner to select the impartial arbitrator if the parties cannot agree. General Statutes § 10–153f (c)(1). These provisions establish that ultimately it is the commissioner who bears responsibility to oversee the process.
Once created, the TNA arbitration panels have a significant degree of autonomy, but the commissioner's oversight authority continues after the selection stage is completed. For example, the commissioner has the power to “order the parties to appear before said commissioner during the arbitration period....” General Statutes § 10–153f (c)(1). Although this statement appears in the section addressing the selection of arbitrators, the statute does not limit in any manner the commissioner's broad authority to order the parties to appear before him or her. As long as the arbitration period continues, there is no time limit on the commissioner's authority to summon the parties, no limitation as to basis, no limitation as to the number of times that the commissioner may invoke this authority, no power on behalf of the arbitrators to circumvent the commissioner's authority, and no requirement that the commissioner consult the arbitrators before summoning the parties.
The responsibility that the commissioner has to oversee the process is confirmed by § 10–153f (c)(5), which imposes a duty upon the commissioner to “assist the arbitration panel ... as may be required in the course of arbitration....” It is difficult to reconcile the commissioner's statutory duty with the majority's assertion that there is no association between the commissioner and the TNA arbitration panels. The majority simultaneously suggests that the commissioner's duty to assist is limited to the selection stage and arises only upon a request by the panelists for assistance. I first observe that these two limitations are internally inconsistent. If the commissioner's duty to assist were limited to the selection stage, there would be no panel to request assistance. More importantly, the statutory language contains no such limitation, and the majority offers no basis for its assertion. There is no qualification whatsoever in the statutory language that the commissioner's duty to assist is limited to the selection period or only triggered upon a request by the panel. The commissioner's duty to assist extends throughout the entire arbitration period, and arises “as may be required....” General Statutes § 10–153f (c)(5). This provision could not make it more clear—the commissioner is responsible for ensuring that the TNA arbitration panel succeeds by resolving the dispute between the parties.Upon rendering a decision, the arbitrators are required to file a copy of that decision with the commissioner. General Statutes § 10–153f (c)(4). The majority misses the point of this requirement. The commissioner does not have the authority or responsibility to ensure the particulars of the agreement between the parties, only that there is an agreement, and, thus, the commissioner is not authorized to reject or modify the ruling of the panel. The commissioner's responsibility is simply to ensure that the dispute is resolved. The requirement that the decision be filed with the commissioner provides an update on the progress of the arbitration. And there is good reason for the requirement that the panel keep the commissioner apprised of the progress of the arbitration. The commissioner's responsibility to oversee the process continues even after the arbitrators have rendered their decision. If the legislative body of the school district rejects the arbitration award pursuant to § 10–153f (c)(7), the commissioner must be notified. The commissioner then must select a review panel of three arbitrators or, if the parties agree, an individual arbitrator, who shall then review the arbitration decision on each rejected issue. General Statutes § 10–153f (c)(7). Thus, even after the TNA arbitration panel is finished, the commissioner's work continues, if necessary, until the dispute ultimately is resolved. B
The majority claims that the lack of an express provision in the TNA requiring that the arbitration hearings be open to the public is significant because: (1) if the legislature had wanted to make the hearings open to the public it could have so required; and (2) in light of this court's decision in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, 219 Conn. at 685, 595 A.2d 313, the failure of the legislature subsequently to amend § 10–153f to reject this court's interpretation of the phrase “committee of” suggests legislative acquiescence.
As to the first point, I observe that the legislature has expressly required that hearings be open to the public, if the hearings are a meeting of a public agency pursuant to the FOIA. The issue in this appeal is whether TNA arbitration hearings are meetings of a public agency subject to the disclosure requirements of the FOIA. If we required an express provision in each substantive statute requiring public hearings, the open meetings requirement of the FOIA would be redundant.
As to the second point, I note that the nature of the disagreement between the majority and the dissent does not concern whether the legislature acquiesced to our interpretation of the statutory phrase “committee of” in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, 219 Conn. at 685, 595 A.2d 313, to mean a subunit of a public agency. We are in agreement that a subunit of a public agency is a public agency for purposes of the FOIA. Our disagreement concerns whether the arbitration panel pool and the TNA arbitration panels are subunits of the department. Moreover, as I point out in footnote 2 of this dissenting opinion, the legislature's response to Elections Review Committee of the Eighth Utilities District supports the conclusion that it intended to extend the meaning of the phrase “committee of” significantly by adding the language “or created by.”
Although I conclude that the issue is resolved under the plain language of § 10–153f, I observe that, even if I were to agree with the majority that the language is not plain and unambiguous, the extratextual sources relied on by the majority actually support my conclusion that the TNA arbitration panels are subunits of the department. The majority states that there are two reasonable interpretations of the phrase “in the Department”: Either the phrase means that the arbitration panel pool is, indeed, “in” the department, or that it is “in” the department for administrative purposes only. After concluding that the plain language does not resolve which of the two meanings was intended by the legislature, the majority turns to the legislative history.
The phrase “in the Department of Education” was first added to § 10–153f (a) through No. 77–614, § 304, of the 1977 Public Acts (P.A. 77–614), “An Act concerning the Reorganization of the Executive Branch of State Government.” The substantial legislative history of this omnibus act does not reference or explain the meaning of the phrase, “in the Department of Education.” The overall purpose of P.A. 77–614, to reorganize the executive branch, is consistent with either interpretation of the phrase “in the Department of Education”—that it designates the arbitration panel pool as a subunit of the department or that it simply locates the panel in the department for administrative purposes. Contrasting the language of § 304, however, with other provisions within P.A. 77–614, reveals that the legislature intended, in § 304 of P.A. 77–614, to establish that the arbitration panel pool is a subunit of the department. Specifically, when the legislature intended to locate a body in a department or agency for administrative purposes only, it expressly provided so. See, e.g., P.A. 77–614, § 81 (locating Commission on Capitol Preservation and Restoration in Department of Administrative Services “for administrative purposes only”); P.A. 77614, § 137 (locating Commission on Human Rights and Opportunities in Department of Administrative Services “for administrative purposes only”); P.A. 77–614, § 305 (locating Connecticut Historical Commission in Department of Education “for administrative purposes only”); P.A. 77–614, § 307 (locating State Commission on the Arts in Department of Education “for administrative purposes only”). The inclusion of the phrase “for administrative purposes only” in those and other sections of P.A. 77–614, contrasted with the omission of any such limiting language in § 304, which provided merely that the arbitration panel shall be “in” the department, supports my conclusion that the legislature intended that the panel actually be a subunit of the department, rather than merely administered by the department.
That conclusion finds further support in the “overarching legislative policy” underlying the FOIA, which “favors the open conduct of government and free public access to government records.... The sponsors of the FOIA understood the legislation to express the people's sovereignty over the agencies which serve them.... Our construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed.” (Citations omitted; internal quotation marks omitted.) Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 712, 663 A.2d 349. The conclusion that the TNA arbitration panels are public agencies for purposes of § 1–200(1)(A) furthers the strong public policy in favor of openness that underlies the FOIA.
The public policy principle favoring public access to government records is particularly strong in the present case because of the importance that this particular type of information has for the public. Expenditures on education constitute the majority of a municipality's budget. See http://www.ct.gov/opm/lib/opm/FI_2008-2012_Asof3-6-14.pdf (last visited December 2, 2014). Accordingly, the public has a strong interest in gaining access to TNA arbitration proceedings, which concern issues that have a direct effect on the cost of education in a municipality or district.
Finally, the conclusion that TNA arbitration panels are public agencies for purposes of the FOIA is consistent with the overall purpose of the TNA, which is to serve the state's best interest “by according teachers the right to negotiate in accordance with the terms and conditions of the [TNA]. It eliminates any need for resort to illegal and disruptive tactics.” West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 584, 295 A.2d 526 (1972). By assisting local boards of education and employee bargaining groups to resolve disputes that arise during the process of collective bargaining, the work performed by the TNA arbitration panels is central to the duty imposed on government by the constitution of Connecticut, article eighth, § 1, which provides: “There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.” Put simply, by assisting in the efficient resolution of disputes that arise during the collective bargaining process, the TNA arbitration panels ensure that Connecticut is able to provide a free, uninterrupted education to the children of this state. Accordingly, the TNA arbitration panels are public agencies for purposes of § 1–200(1)(A).
This broader purpose is reflected in the impasse resolution procedures of the TNA, which are intentionally linked to a school district's budget submission date. Negotiations, for example, must commence not less than 210 days prior to the budget submission date. General Statutes § 10–153d (b). If the parties have not come to an agreement 160 days prior to the budget submission date, the parties must commence mediation. General Statutes § 10–153f (b). If a settlement cannot be reached on or before 135 days prior to the budget submission date, arbitration must commence. General Statutes § 10–153f (c)(1).
I observe that the majority, with no analysis, asserts the bald conclusion that the TNA arbitration panels are not the functional equivalent of a public agency. Despite the fact that a conclusion to the contrary would render its holding invalid, the majority simply dismisses the possibility without even mentioning the four factor test used for determining whether an entity is the functional equivalent of a public agency for purposes of the FOIA, which this court first set forth in Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266 (1980). Drawing from federal law, we eschewed a formalistic approach in favor of a practical inquiry centered on the following four factors: “(1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.” Id., at 554, 436 A.2d 266. We have emphasized that “[a]ll relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.” (Internal quotation marks omitted.) Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 761, 591 A.2d 395 (1991).
II
THE EVIDENTIARY PORTION OF THE ARBITRATION HEARING IS A MEETING
I next address the question of whether the evidentiary portion of the arbitration hearing is a meeting pursuant to § 1–200(2), and therefore subject to the open meetings provision of General Statutes § 1–225(a). The plaintiff contends that the evidentiary portion of TNA arbitration hearings constitutes “strategy or negotiations with respect to collective bargaining”; General Statutes (Supp.2014) § 1–200(2) ; and therefore is excluded from the definition of “ ‘[m]eeting’ ” in § 1200(2). The commission and the intervening defendants Waterbury Republican–American and Jim Moore, a journalist, respond that although the presentation of evidence during a TNA arbitration is in support of and related to strategy and negotiation with respect to collective bargaining, it is nonetheless distinguishable from the actual strategy and negotiations. I conclude that because the evidentiary portion of TNA arbitration hearings merely relates to, and does not itself constitute, strategy or negotiations with respect to collective bargaining, that portion of the proceedings is encompassed within the meaning of the term “ ‘[m]eeting’ ” in § 1–200(2), and is subject to the open meetings provision of the FOIA.
General Statutes (Supp.2014) § 1–200(2) provides in relevant part: “ ‘Meeting’ means any hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ does not include ... strategy or negotiations with respect to collective bargaining....”
General Statutes § 1–225(a) provides in relevant part: “The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1–200, shall be open to the public....”
Because the question of whether the evidentiary portion of TNA arbitration proceedings constitutes a “ ‘[m]eeting’ ” pursuant to § 1–200(2) presents an issue of statutory construction, I am guided by the same statutory construction principles that have informed my discussion of whether TNA arbitration panels are public agencies pursuant to § 1–200. See part I of this dissenting opinion. Pursuant to those principles, I begin with the statutory text. Section 1–200(2) defines the term “ ‘[m]eeting’ ” to include “any hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.” The statute then lists several exemptions from the definition of “ ‘[m]eeting,’ ” including the one that is relevant to the present case, “strategy or negotiations with respect to collective bargaining....” General Statutes (Supp.2014) § 1–200(2). The question, therefore, is whether the evidentiary portion of TNA arbitration proceedings constitutes “strategy or negotiations with respect to collective bargaining.”
Before I turn to the specific question of how the evidentiary portion of TNA arbitration proceedings “fits” into the FOIA, it is helpful to understand this issue in the context of the structure of the TNA. This court previously has explained: “Although TNA arbitrations arise out of an initial failure to reach agreement in ordinary collective bargaining, they were designed to provide incentives for further bargaining between the parties. The TNA establishes a sequence of increasingly formal collective bargaining procedures to ensure the existence of a teacher contract by the beginning of the town's fiscal year. A board of education and representatives of the teachers' union have a statutory duty to negotiate concerning salary and other conditions of employment. General Statutes § 10–153d (b). Those negotiations must commence no later than 210 days prior to the budget submission date for the board. General Statutes § 10–153d (b). If a complete negotiated settlement has not been reached by 160 days prior to the submission date, the statutes mandate that the parties proceed to mediation. General Statutes § 10–153f (b). Finally, if mediation has not settled all remaining disputes by 135 days prior to the submission date, the statute imposes mandatory last best offer arbitration. General Statutes § 10–153f (c)(1). After a hearing at which each party may present all relevant evidence, the arbitral panel ‘shall resolve separately each individual disputed issue by accepting the last best offer thereon of either of the parties....' General Statutes § 10–153f (c)(4).” (Footnote omitted.) Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 714–15, 663 A.2d 349.
This structure of the TNA, in which arbitration proceedings—when it becomes necessary to employ them—function as an extension of the negotiation and mediation stages, makes clear that “a TNA arbitration does not operate as a typical quasi-judicial process, but rather as a stylized or ritualized mediated negotiation process in which the parties submit initial last best offers, interim last best offers and final last best offers. Throughout the process, the threat of the [TNA] arbitration panel's decision-making power provides a strong incentive for the parties to resolve outstanding issues.... [T]he arbitrators ‘don't receive the parties' absolute final position until the very end of the hearing and the parties often and usually present a different position when they open the hearing....’ ” (Footnote omitted.) Id., at 715–16, 663 A.2d 349.
Despite this court's recognition of the unique nature of TNA arbitrations as a continuation of the negotiation process, we were mindful in Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 712, 663 A.2d 349, that in addressing the issue of whether the presentation of last best offers constitutes strategy or negotiations with respect to collective bargaining, “[o]ur construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed.” (Internal quotation marks omitted.) We explained further that “the statutory definition of public meetings contained in [§ 1–200(2) ] must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings. Accordingly, the language providing that public meetings ‘shall not include ... strategy or negotiations with respect to collective bargaining’ means ... that what is excluded from the term ‘meeting’ is not all collective bargaining, but only ‘strategy or negotiations' sessions that relate to collective bargaining. ” (Emphasis altered.) Id., at 712–13, 663 A.2d 349. In light of that policy, we were careful to craft our holding narrowly, stating that “the actual presentation of last best offers by the parties sufficiently resembles ‘negotiations,’ despite the fact that they occur during a proceeding denominated as ‘arbitration,’ to be excluded from the ‘meeting’ requirements of the FOIA.” Id., at 717, 663 A.2d 349. Because the commission's order in Glastonbury Education Assn. determined that the entire arbitration hearing, including the presentation of last best offers, was subject to the open meetings provision, we held that the order was invalid. We specifically held out the possibility, however, that a more narrowly tailored order, limited to the evidentiary portion of the TNA arbitration proceedings, could be valid. Id., at 718, 663 A.2d 349.
This court's narrow construction of the exemption for “strategy or negotiations with respect to collective bargaining” in Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 704, 663 A.2d 349, is significant because, in order for a proceeding to fall within the exemption, it is not sufficient that the proceeding merely be related to or part of the collective bargaining process. The proceeding, or portion of it, must actually consist of strategy or negotiations.
We underscored this requirement, that a proceeding must itself be comprised of strategy or negotiations in order to fall under the exemption, when we again considered the scope of the exemption in Waterbury Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 694 A.2d 1241 (1997). In that case, we addressed the issue of whether grievance proceedings were exempt from the open meetings provision of the FOIA because they constituted strategy or negotiations with respect to collective bargaining. Id., at 837, 694 A.2d 1241. We began by citing to Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 711–13, 663 A.2d 349, for the proposition that the exemption does not encompass “collective bargaining proceedings in their entirety” from the open meetings requirement, but only “sessions that relate specifically to ‘strategy or negotiations.’ ” Waterbury Teachers Assn. v. Freedom of Information Commission, supra, at 839, 694 A.2d 1241. The mere fact that the grievance procedures “[arose] out of, and relate[d] to, collective bargaining” was not sufficient to establish that the exemption applied. Id., at 840, 694 A.2d 1241. Instead, in order to determine whether grievance proceedings constituted strategy or negotiations with respect to collective bargaining, we examined the “operational characteristics” of those proceedings as established by the testimony and evidence presented to the commission. Id., at 841, 694 A.2d 1241.
Our review of that evidence revealed that the grievance process involves two stages: the presentation of evidence, and the request for a remedy. Id., at 841–42, 694 A.2d 1241. On the basis of our examination of those two stages, we held that the commission properly had concluded that, although the request for a remedy fell under the exemption, the presentation of evidence did not, because the latter did not consist of strategy or negotiations. Therefore, that portion of the grievance hearings was required by the FOIA to be open to the public. Id., at 843, 694 A.2d 1241. A significant difference between the two stages was that the request for a remedy involved bargaining back and forth between the parties, and often the grievance could be resolved at that stage of the proceedings through a new interpretation of the agreement, which could be incorporated into the original collective bargaining agreement by way of memoranda of understanding. Id., at 842, 694 A.2d 1241. By contrast, in the evidentiary portion of the proceedings, the parties “had discussed matters other than strategy or negotiation with respect to collective bargaining....” (Internal quotation marks omitted.) Id. Specifically, during that portion of the proceedings, the parties presented evidence regarding the “underlying facts allegedly giving rise to the grievance....” Id., at 843–44, 694 A.2d 1241. Although evidence of the underlying facts giving rise to a grievance certainly is related to the strategies of the parties, and could both relate to and impact negotiations, our decision in Waterbury Teachers Assn. reinforces the rule we had set forth in Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. at 704, 663 A.2d 349, regarding strategy or negotiations with respect to collective bargaining. Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 240 Conn. at 837, 694 A.2d 1241. We began by citing to Glastonbury Education Assn. v. Freedom of Information Commission, supra, 704, 663 A.2d 349, and noted that the proceeding must be more than related to strategy and negotiations. In order to fall under the exemption, a proceeding must actually consist of strategy and negotiations.
Consistent with the rationale in Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 240 Conn. at 841, 694 A.2d 1241, in order to determine whether the evidentiary portion of TNA arbitration proceedings merely relates to, or actually constitutes strategy or negotiations with respect to collective bargaining, I examine the operational characteristics of the proceedings. Specifically, I examine three characteristics of the arbitration proceedings: (1) the type of evidence presented during the proceedings; (2) the relationship between the presentation of evidence and the presentation of last best offers; and (3) the nature of communications between the parties, both in and outside the presence of the TNA arbitration panel as established by § 10–153f and the testimony before the commission. My review of the proceedings persuades me that although the presentation of evidence is related to strategy and negotiations and is an integral part of the collective bargaining process at the arbitration stage, the evidentiary portion of TNA arbitration proceedings does not itself constitute either strategy or negotiations.The types of evidence presented at a TNA arbitration are dictated by statute, and are by their very nature related to issues that are likely to be the subject of negotiations between the parties as a part of the collective bargaining process. Section 10–153f (c)(2) provides in relevant part that during the hearing, “each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material and to argue on behalf of its positions. At the hearing a representative of the fiscal authority having budgetary responsibility or charged with making appropriations for the school district shall be heard regarding the financial capability of the school district....” The type of evidence presented is also guided by the statutory factors that the arbitrators are required to consider. In addition to presenting evidence regarding the public interest and the financial capability of the town or towns in the school district—the two factors to which the arbitrators are required to give priority—the parties may present evidence relevant to the following statutory factors considered by the arbitrators: “(A) [t]he negotiations between the parties prior to arbitration, including the offers and the range of discussion of the issues; (B) the interests and welfare of the employee group; (C) changes in the cost of living averaged over the preceding three years; (D) the existing conditions of employment of the employee group and those of similar groups; and (E) the salaries, fringe benefits, and other conditions of employment prevailing in the state labor market, including the terms of recent contract settlements or awards in collective bargaining for other municipal employee organizations and developments in private sector wages and benefits....” (Footnote added.) General Statutes § 10–153f (c)(4).I next turn to the relationship between the presentation of evidence and the presentation of last best offers. Because the categories of evidence are all relevant to the issues that are likely to be the subject of collective bargaining, the content of the evidence will certainly be related to the last best offers presented by the parties. There is, however, a more functional connection between the presentation of evidence and the presentation of last best offers that is relevant to my analysis. Specifically, the testimony before the commission in the present case demonstrated that the parties to a TNA arbitration proceeding regularly use the presentation of evidence to influence the last best offers of the opposing party.
For convenience, as I review the operational characteristics of the TNA arbitration proceedings, I refer only to the TNA arbitration panels, although the parties may elect to proceed with a single arbitrator rather than a panel. See General Statutes § 10–153f (c).
James Larry Foy, the impartial arbitrator in the present case, explained in his testimony before the commission that the evidence offered in connection with this factor consists of the “[h]istory of negotiations prior to arbitration.”
To understand this functional connection, it is helpful to view last best offers and the presentation of evidence in light of the nature of TNA arbitration proceedings. James Larry Foy, the impartial arbitrator in the present case, explained during his testimony before the commission that the presentation of evidence during a TNA arbitration proceeding is greatly affected by the unique characteristics of TNA arbitration proceedings, which are a type of interest arbitration, and involve the creation of a new or amended labor contract rather than the resolution of an alleged violation of an existing contract. See generally 48B Am.Jur.2d 118, Labor and Labor Relations § 2488 (2005). At the outset of the proceedings, as to each disputed contract issue, each party presents an initial last best offer. Often, the parties also present an interim last best offer. At the end of the proceedings, the parties present final last best offers as to all remaining unresolved issues, and the TNA arbitration panel must select the last best offer of one of the parties as to each issue, with no authority to alter the terms. The selected last best offer becomes the contract term as to that issue. The panel's lack of discretion to alter the last best offers creates an incentive for the parties to resolve the dispute as to each issue rather than leaving that issue to be decided by the panel.
Foy could not recall whether the parties had presented interim last best offers in the present case.
The effect of this all or nothing approach is that the parties' respective positions are brought closer together by the risk that by failing to compromise, they will lose entirely on that issue. As a result, the parties present the evidence with the knowledge that it will provide the panel with an evidentiary basis upon which to evaluate the final last best offers of each side of the dispute in accordance with the statutory factors listed in § 10–153f (c)(4), and that the panel must select only one side, without the authority to modify the terms. Under this system, Foy explained, each party is highly motivated to submit the last best offer that will most likely be selected by the panel, and each uses the presentation of evidence to persuade the other side that its position is the stronger one, and that failure to compromise, in light of the evidence, will result in the arbitrators selecting the presenting party's last best offer on that issue.
Gail McKinley Anderson, a field representative for the Connecticut Education Association, who represents teacher unions and education associations in negotiation, mediation and arbitration proceedings, and who also testified at the commission hearing, confirmed Foy's assessment of the link between the presentation of evidence and the parties' last best offers. Anderson explained that her decision regarding which evidence to present is part of her strategy, because she selects the evidence that she believes will most likely convince a board of education to modify its last best offer. She indicated that her selection of evidence is based on her knowledge that the TNA arbitration panel does not have discretion to modify the last best offer it selects, and she therefore presents evidence designed to persuade a board of education that the risk of going forward without modifying its last best offer is too high.
Finally, I review the nature of the communications between the parties during the proceedings, both in and outside the presence of the panel. When Foy was questioned, during the hearing before the commission, as to whether negotiations are continuous during TNA arbitration proceedings, he responded that they are not. He conceded that in the presence of the panel, the bulk of the recorded proceedings generally consist of the presentation of evidence and argument. There is not always a bright line, however, between evidence and argument, and the structure of the proceedings is quite informal. Witnesses do not necessarily testify from a stand, and parties may make spontaneous responses to a witness' testimony. At times, in fact, the parties engage with each other in the presence of the panel, representing their positions to each other in a manner consistent with the communications one would expect during negotiations. Foy offered the following as a typical example of the type of statement one party might make to the other side on the record, in the presence of the panel: “[I]f your position [were] X on issue one rather than Y, then maybe we [could] work this thing out, but that's not your position....” He also indicated, however, that the extent of this type of exchange in front of the panel tends to be limited in its scope, and that the bulk of negotiations generally occur outside the presence of the panel.
Both Foy and Anderson testified that outside the presence of the panel, the parties regularly engage in negotiations with each other and each party meets with its representative on the TNA arbitration panel to discuss strategy, receive advice from that representative, and discuss possible revisions and proposals of that party's last best offer. It is not uncommon for the representative of a party to attempt, during these ex parte communications, to persuade that party to make concessions. The third, impartial arbitrator, however, does not meet with the parties separately, and the meetings with the representative arbitrators are not recorded.
In summary, my review of the operational characteristics of the TNA arbitration proceedings leaves no doubt that communications that occur during the evidentiary portion of the proceedings are related to the parties' strategy with respect to collective bargaining. The uncontroverted testimony demonstrates that the selection and presentation of evidence are based on strategic decisions, and have the strategic purpose of persuading the other side to compromise. The fact that the presentation of evidence is part of a party's overall strategic plan and is undertaken in a strategic manner, however, does not make the presentation of the evidence itself strategy. In any judicial or quasi-judicial proceeding, the presentation of evidence is undertaken for strategic purposes. That fact alone is not sufficient to transform the presentation of evidence into strategy. There was no testimony offered at the commission hearing that any parties discussed strategy on the record, in the presence of the TNA arbitration panel. As explained by Foy in his testimony to the commission, discussions of strategy during the proceedings are confined to discussions outside the presence of the entire panel and the opposing party, either with or without the aid of the party's panel representative. The third, impartial arbitrator is never privy to strategy discussions.
Although the connection between the presentation of evidence and negotiations is a bit more complex, I am similarly persuaded that the presentation of evidence does not, in and of itself, constitute negotiations. The presentation of evidence is certainly an important means by which the parties persuade the other side to negotiate, but the two ultimately are related, yet distinguishable. Foy, in fact, distinguished among three categories of communication that occur in the presence of the panel: presentation of evidence, argument and negotiations. Although he testified that there was not always a bright line between evidence and argument, and that the proceedings tend to be somewhat informal, he did not indicate that there was a similar difficulty in distinguishing between the presentation of evidence and negotiations. He was able to give a hypothetical example of a type of communication, in the context of the presentation of evidence, which he would categorize as negotiation. In addition, both he and Anderson testified that the parties regularly negotiate with each other outside the presence of the panel. Rather than constituting negotiations, the presentation of evidence in TNA arbitration proceedings, like the presentation of evidence in grievance proceedings in Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 240 Conn. at 843–44, 694 A.2d 1241, consists of the underlying facts that are relevant to, but distinguishable from, negotiations.
In light of the fact that the parties are free to negotiate with each other outside the presence of the panel during the proceedings, the parties are obviously not compelled to engage in negotiations with each other on the record in the presence of the panel.
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Because I conclude that the presentation of evidence is merely related to and does not itself constitute strategy or negotiations with respect to collective bargaining, the evidentiary portion of TNA arbitration proceedings does not fall under that exemption from the definition of “ ‘[m]eeting’ ” in § 1–200(2), and is therefore subject to the open meetings provision of the FOIA, § 1–225(a). See footnote 10 of this dissenting opinion.
Accordingly, I respectfully dissent.
DiPENTIMA, J., dissenting.I agree with and join parts I B and II of Justice Espinosa's dissenting opinion. However, I do not join part I A of that opinion, which concludes that the plain language of General Statutes § 10–153f provides that Teacher Negotiation Act arbitration panels are subunits of the Department of Education. Additionally, I agree with and join Justice McDonald's dissenting opinion, except to the extent that he agrees with part I A of Justice Espinosa's dissenting opinion.