Dortenzio v. Freedom of Information Commission

• Decision Date: 17 July 1998
• Docket Number: No. 16707,16707
• Citation: 48 Conn.App. 424,710 A.2d 801
• Court: Connecticut Court of Appeals
• Parties: Douglas L. DORTENZIO v. FREEDOM OF INFORMATION COMMISSION et al.

Page 801

710 A.2d 801

48 Conn.App. 424

Douglas L. DORTENZIO v. FREEDOM OF INFORMATION COMMISSION et al.

No. 16707.

Appellate Court of Connecticut.

Argued Jan. 13, 1998.

Decided April 14, 1998.

Reargument Denied July 17, 1998.

Janis M. Small, Town Attorney, for appellee (plaintiff).

Barbara Housen, Commission Counsel, with whom, on the brief, were Mitchell W. Pearlman, General Counsel, and Victor R. Perpetua, Commission Counsel, for appellee (named defendant).

Maureen M. Murphy, New Haven, for appellee (defendant Douglas J. Fairchild).

Jeffrey F. Gostyla, Berlin, filed a brief for the Connecticut Police Chiefs Association as amicus curiae.

Before LANDAU, SULLIVAN and DALY, JJ.

SULLIVAN, Judge.

The plaintiff, Douglas L. Dortenzio, chief of police for the town of Wallingford, appeals from the judgment of the trial court dismissing his appeal from the decision of the freedom of information commission. The plaintiff claims that the trial court improperly determined that a predisciplinary conference conducted by the plaintiff was a "hearing or other proceeding" under General Statutes § 1-18a (b) ¹ and, therefore, subject to the open meeting requirements of General Statutes §§ 1-21(a) ² and 1-21a (a). ³ We agree and reverse the judgment of the trial court.

The following facts and lengthy procedural history of this case are undisputed. The plaintiff is the chief of police of the Wallingford police department and, as such, is the head of that department. No independent police commission exists in Wallingford as exist in other Connecticut municipalities. The Wallingford city charter vests in the plaintiff, as department head, responsibility for "the efficiency, discipline and good conduct of the department...." The defendant commission is a Connecticut state agency empowered to investigate alleged violations by public agencies of the Freedom of Information Act (FOIA), General Statutes § 1-18a et seq. Douglas Fairchild, also a defendant in this action, is employed as a police officer for the Wallingford police department.

On July 30, 1993, the plaintiff notified Fairchild that he was to attend a predisciplinary conference on August 24, 1993, concerning his work performance. Allegations relating to Fairchild's work performance had been investigated by Lieutenant Peter Cameron, Fairchild's supervisor. Cameron reported the results of the investigation to Deputy Chief Darrell E. York, who found deficiencies in Fairchild's work performance and referred the matter to the plaintiff with a recommendation for disciplinary action.

By letter to the plaintiff dated August 16, 1993, Fairchild requested that the predisciplinary conference be open to the public and that it be either videotaped or audiotaped. He also requested that he be permitted to introduce evidence and present witnesses on his behalf. The plaintiff sent Fairchild a letter in response that essentially denied these requests. The letter stated that the format of the conference had been "agreed to and practiced by both the Town and Union...." The conference took place on August 24, 1993. Thereafter, by letter dated September 1, 1993, the plaintiff informed Fairchild that he was to be disciplined by an unpaid suspension for three days, during which time his police powers were to be suspended and his service weapon, departmental badge and identification card surrendered.

On September 2, 1993, Fairchild filed a complaint with the commission, claiming that the plaintiff violated the FOIA when he refused to open the conference to the public and refused to permit the conference to be tape-recorded. At a hearing before a commissioner on November 18, 1993, Fairchild argued that the predisciplinary conference was a "meeting" under § 1-18a (b) and, as such, it should have been open to the public pursuant to § 1-21(a) and he should have been able to tape-record the conference pursuant to § 1-21a (a). Fairchild asserted that the conference was a meeting under § 1-18a (b) because it was a "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...." General Statutes § 1-18a (b). Fairchild requested that the action taken at the August 24, 1993 conference be declared "null and void" and that future disciplinary conferences before the plaintiff be considered meetings within the purview of § 1-18a (b). See Dortenzio v. Freedom of Information Commission, 42 Conn.App. 402, 405, 679 A.2d 978 (1996).

At the hearing before the commissioner, the plaintiff claimed that the predisciplinary conference was not a meeting under § 1-18a (b). He argued that the conference fell within an exception to the definition of a meeting under the statute for "administrative or staff meeting[s] of a single-member public agency...." General Statutes § 1-18a (b).

The commission adopted the final decision of the hearing commissioner, who concluded that the plaintiff violated §§ 1-21(a) and 1-21a (a). The commission found that the predisciplinary conference constituted a "proceeding of a public agency," namely the Wallingford police department, and therefore it was within the definition of a meeting under § 1-18a (b). The commission refused to declare the August 24, 1993 meeting null and void, but ordered the plaintiff to comply with §§ 1-21(a) and 1-21a (a) in the future. See Dortenzio v. Freedom of Information Commission, supra, 42 Conn.App. at 406, 679 A.2d 978.

The plaintiff appealed the commission's decision to the Superior Court, which sustained the appeal. The court, Maloney, J., found that the predisciplinary conference was part of the grievance procedure established by the collective bargaining agreement between the town and the police union. Id., at 406, 679 A.2d 978. Accordingly, the court determined that the conference was not a meeting as that term is defined in § 1-18a (b) and therefore was not subject to the requirement of § 1-21(a) that meetings be open to the public. Id. The court also noted that predisciplinary conferences such as the one in this case could be held in private by agreement of the parties under provisions in the FOIA for "executive sessions." ⁴

The commission and Fairchild appealed to this court from the decision of the trial court. We reversed the judgment of the trial court on the ground that the court improperly substituted its judgment for that of the commission. Dortenzio v. Freedom of Information Commission, supra, 42 Conn.App. 402, 679 A.2d 978. It was evident from the trial court's memorandum of decision that the court was persuaded by the plaintiff's argument that the conference was not a meeting pursuant to § 1-18a (b) because it fell within an exception under § 1-18a for "strategy or negotiations with respect to collective bargaining," although that issue was never raised before the commission. Id., at 406, 679 A.2d 978. Thus, we found that the trial court "failed to confine its review of the [commission's] decision to the issues raised and the findings in the administrative record." Id., at 407, 679 A.2d 978. Accordingly we remanded the case with direction to the trial court to apply the proper standard of review.

On December 2, 1996, the trial court, McWeeny, J., issued a memorandum of decision dismissing the plaintiff's appeal. The court determined that the predisciplinary conference was a proceeding of the police department under § 1-18a (b), and did not fall within any of the exceptions to the definition of a meeting, as claimed by the plaintiff. The court stated that the conference was a constitutionally mandated hearing under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). It is from that decision that the plaintiff now appeals.

We first set out our standard of review. Judicial review of an administrative agency's action is governed by the Uniform Administrative Procedure Act [UAPA], General Statutes § 4-166 et seq., and the scope of that review is limited. Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 448, 705 A.2d 1012 (1997). "When reviewing the trial court's decision, we seek to determine whether it comports with the [UAPA].... We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion." (Internal quotation marks omitted.) Nelseco Navigation Co. v. Dept. of Liquor Control, 34 Conn.App. 352, 355, 641 A.2d 827 (1994); Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5 (court may reverse or modify decision of trial court if it determines decision erroneous in law).

"The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation, which, upon review under the UAPA, ordinarily presents a question of law." Plastic Distributors, Inc. v. Burns, 5 Conn.App. 219, 225, 497 A.2d 1005 (1985). "Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts...." (Internal quotation marks omitted.) Board of Labor Relations v. Freedom of Information Commission, 43 Conn.App. 133, 137, 682 A.2d 1068 (1996), aff'd, 244 Conn. 487, 709 A.2d 1129 (1998). "Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of [our Supreme Court] to accord great deference to the construction given [a] statute by the agency charged with its enforcement." (Internal quotation marks omitted.) Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. at 449, 705 A.2d 1012. "An exception is that when a state agency's determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference." (Internal quotation marks omitted.) Id.

With these principles in mind, we now consider whether the...