Cassella v. Civil Service Com'n of City of New Britain, 3189

• Citation: 4 Conn.App. 359,494 A.2d 909
• Decision Date: 25 June 1985
• Docket Number: No. 3189,3189
• Court: Appellate Court of Connecticut
• Parties: Alfred P. CASSELLA, Jr. v. CIVIL SERVICE COMMISSION OF the CITY OF NEW BRITAIN.

Page 909

494 A.2d 909

4 Conn.App. 359

Alfred P. CASSELLA, Jr. v. CIVIL SERVICE COMMISSION OF the CITY OF NEW BRITAIN.

No. 3189.

Appellate Court of Connecticut.

Argued April 9, 1985.

Decided June 25, 1985.

Edward J. Daly, Jr., Hartford, for appellant (plaintiff).

Joseph E. Skelley, Jr., Hartford, for appellee (defendant).

Before HULL, SPALLONE and DALY, JJ.

HULL, Judge.

The plaintiff appeals from the judgment of the trial court sustaining the decision of the civil service commission which upheld the decision of the board of fire commissioners to reduce the plaintiff's rank in the fire department from lieutenant to private. We find no error.

The underlying facts are not in dispute. The plaintiff, Alfred P. Cassella, Jr., ¹ began work with the New Britain fire department in 1970. On November 18, 1975, he took promotional examination P-557 after which he was promoted to fire lieutenant on April 25, 1976. By letter dated January 26, 1981, the board notified Cassella, Jr., to attend a hearing to respond to charges that written examination P-557 had been fixed for his benefit by Alfred Pettinelli, then personnel director of the city, and that Cassella, Jr., had thereby violated the city charter and civil service rules. At the hearing before the board on March 23, 1981, documentary evidence, tending very strongly to prove that such a rigged examination had taken place, was admitted over the plaintiff's objection. This evidence may be summarized as follows: (1) guilty plea and a transcript from proceedings in which Alfred P. Cassella, Sr., the plaintiff's father, had pleaded guilty to one count of perjury in violation of General Statutes § 53a-156, which arose from Cassella, Sr.'s denying, before a one-man grand jury investigating New Britain civil service matters, that he gave $1000 in cash to Fire Chief Raymond Galati to pay to Pettinelli for fixing his son's promotion to lieutenant; (2) an affidavit of John Reffner, a chemist and expert witness, stating that at least three and possibly as many as thirteen answers on the answer sheet submitted by Cassella, Jr., for examination P-557 were filled in while the grading master was in place over the answer sheet; (3) Pettinelli's affidavit stating that examination P-557 was fixed for Cassella, Jr., as a personal favor for Raymond Galati and stating that Pettinelli gave Galati blank answer sheets with Cassella, Jr.'s application number written on them and that he later filled in the blank answer sheets and substituted them for the answer sheets filled out at the time of the examination; (4) a transcript of testimony of Pettinelli in State v. Sahadi, Superior Court, Judicial District of Hartford-New Britain at Hartford, No. 4-48-10 (October 13, 1982), wherein he admitted fixing examination P-557 to secure Cassella, Jr.'s promotion to fire lieutenant.

None of the declarants appeared before the board. Pettinelli and Reffner had been barred by a Superior Court "gag order" from testifying. The record is uncertain as to whether Cassella, Sr., was present or not. His attorney at the hearing, likewise his attorney before this court, stated to this court that Cassella, Sr., had informed him that if called he would plead the fifth amendment. There was no direct evidence of Cassella, Jr.'s involvement in this scheme. He testified unequivocally that he had no knowledge of it. The board found that the examination had been fixed by Pettinelli and that Cassella, Jr., was not a party to it. The board voted to reduce his rank from lieutenant to private, effective March 24, 1981, and to allow him to take a new examination for a lieutenant's post at any time.

Cassella, Jr., appealed his demotion to the civil service commission which sustained the board's decision on January 5, 1982. ² He then appealed to the Superior Court which held that he was not denied due process, that the evidence supported his demotion under applicable charter and civil service provisions, and that the notice sent to him concerning the hearing before the board was adequate.

On appeal, Cassella, Jr., claims that the court erred (1) in concluding that the plaintiff was afforded due process at the hearing before the board, and (2) in not concluding that the defendant's finding that the plaintiff violated the city charter and personnel rules is contrary to the evidence and in excess of its authority.

"[A]dministrative tribunals are not strictly bound by the rules of evidence and ... they may consider evidence which would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative." Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 570, 345 A.2d 520 (1973). "There is moreover, no specific prohibition against hearsay evidence in the Uniform Administrative Procedure Act (UAPA), which provides that '[a]ny oral or documentary evidence may be received, but [that] the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence.' General Statutes § 4-178(1)." Tomlin v. Personnel Appeal Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979). The test of the action of a board of commissioners in a quasi-judicial hearing "is whether the plaintiff had a reasonable opportunity to hear and to be heard upon the charges preferred against him and whether the proceedings were conducted in a fair and impartial manner. Adam v. Connecticut Medical Examining Board, [137 Conn. 535, 540, 79 A.2d 350 (1951) ]." Conley v. Board of Education, 143 Conn. 488, 493-94, 123 A.2d 747 (1956).

"While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence; McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 77, 282 A.2d 900 [1971]; Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292, 99 A.2d 149 [1953]; nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 [1967]. Due process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence." Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); see also Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974).

Nevertheless, the leading case of Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), sanctioned written reports from four physicians not present at a social security disability hearing, as sufficiently trustworthy substantive evidence to afford due process to the claimant. The court held that such a written report, despite its hearsay character and absence of cross-examination, may constitute substantial evidence supportive of a hearing examiner's finding adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician. Id., 402, 91 S.Ct. at 1427; see also Altholtz v. Connecticut Dental Commission, 4 Conn.App. 307, 312, 493 A.2d 917 (1985). Although the clear trend of federal cases since Richardson v. Perales, supra, is toward the admission of hearsay evidence as substantial evidence if sufficiently trustworthy, the cases are far from uniform in their handling of this issue. See 3 Davis, Administrative Law (2d Ed.) § 16.8.

In Carlson v. Kozlowski, 172 Conn. 263, 374 A.2d 207 (1977), the court stated that written evidence which was the only evidence probative of the plaintiff's culpability was not substantial evidence under the UAPA to support the commissioner's finding "absent a showing, which has not been made here, that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants." Id., 267, 374 A.2d 207. The Carlson court identified certain factors in Richardson "which assured the underlying reliability and probative value of the hearsay evidence." Carlson v. Kozlowski, supra. "Among the factors which were considered as establishing trustworthiness were: the doctors had no bias or interest in the case; the reports 'were based on personal consultation and personal examination and rested on accepted medical procedures'; ... there was no inconsistency on the face of the reports; and written medical reports by treating physicians have long been recognized by the courts as having inherent reliability and probative worth." Id., 267-68, 374 A.2d 207.

The trial court aptly cited four pertinent Richardson factors by which it weighed the due process question involved here: (1) the availability of the witness declarant; (2) the lack of bias or interest on the part of the witness declarant; (3) the quality and probative value of the out of court statements; and (4) the nature and atmosphere of the proceeding.

The court painstakingly reviewed the hearsay evidence in light of the Richardson factors.

I

We must first consider the question of availability of the declarants. We have earlier noted that both Richardson and Carlson rest partially on the fact that the plaintiff did not use subpoena procedures available to him to secure the attendance of the nonappearing declarants. Such a reliance on this factor, however, falls far short of a holding that, where the declarants are unavailable, due process cannot be met if hearsay statements are admitted. It is noteworthy that Professor Davis, in his treatise, does not deal with this issue head-on. In discussing Blackwell College of Business v. Attorney General, 454 F.2d 928 (D.C.Cir.1971), a case involving the admission of affidavits by former students of the college, Professor Davis refers to the following language in that opinion: " '[I]f [the college] denies the truth of the evidence, [it] shall have opportunity, if it so desires,...