Local 1303 and Local 1378 of Council No. 4, AFSCME, AFL-CIO v. Freedom of Information Com'n

• Citation: 191 Conn. 173,463 A.2d 613
• Decision Date: 16 August 1983
• Docket Number: AFL-CIO
• Court: Supreme Court of Connecticut
• Parties: LOCAL 1303 AND LOCAL 1378 OF COUNCIL NO. 4, AFSCME,, et al. v. FREEDOM OF INFORMATION COMMISSION et al. CITY OF NEW LONDON v. FREEDOM OF INFORMATION COMMISSION et al.

Page 613

463 A.2d 613

191 Conn. 173

LOCAL 1303 AND LOCAL 1378 OF COUNCIL NO. 4, AFSCME, AFL-CIO, et al. v. FREEDOM OF INFORMATION COMMISSION et al.

CITY OF NEW LONDON v. FREEDOM OF INFORMATION COMMISSION et al.

Supreme Court of Connecticut.

Argued April 6, 1983.

Decided Aug. 16, 1983.

Marianne D. Smith, Com'n Counsel, Hartford, with whom were Mitchell W. Pearlman, Gen. Counsel, Hartford, and, on brief, Albert P. Lenge, Asst. Gen. Counsel, Hartford, for appellant-cross appellee (named defendant in each case).

Joel M. Ellis, West Hartford, with whom, on brief, was William S. Zeman, West Hartford, for appellees-cross appellants (plaintiffs in the first case).

Before PETERS, PARSKEY, SHEA, GRILLO and COVELLO, JJ.

COVELLO, Associate Justice.

These appeals emanate from a decision of the freedom of information commission. On September 3, 1976, freedom of information commissioner Herbert Brucker conducted a hearing on the complaint of one Robert Fromer that the city of New London had denied him access to the records of sick leave taken by New London municipal employees. Commissioner Brucker thereafter made certain findings and conclusions and recommended to the full commission that the requested information be made available to the complainant. On October 26, 1976, with Commissioner Brucker seated as a commission member, the full commission voted to accept his report by a vote of two to one and entered an order directing the city of New London to supply the requested information.

The plaintiff unions joined by two employees appealed this decision to the Superior Court. A separate appeal, thereafter consolidated with the first one, was filed by the city of New London.

On October 25, 1978, the court, Spallone, J., rendered its judgment on the two administrative appeals wherein it concluded that the release of the sick day information, including the name of the employees would constitute an invasion of the employees' right to privacy. The court, therefore, modified the original commission order, directed the release of the requested information but ordered that the employees be identified only by random numbers to be assigned by the city.

This court granted a petition for certification whereupon the freedom of information commission appealed the court's modification of the earlier commission order. The plaintiff unions, the two municipal employees and the city of New London cross appealed. Robert Fromer, the original complainant, did not appeal. We conclude that the freedom of information commission is not an aggrieved party here and is thus ineligible to pursue this appeal.

"It is settled law that the right to appeal is purely statutory and is allowed only if the conditions fixed by statute are met. Zachs v. Public Utilities Commission, 171 Conn. 387, 394, 370 A.2d 984 [1976]; Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 293, 320 A.2d 797 [1973]." In re Juvenile Appeal (Anonymous), 181 Conn. 292, 293, 435 A.2d 345 (1980).

In the case of administrative decisions appealed to Superior Court, further review is available thereafter only to those qualifying as an "aggrieved party." ¹ This requirement (part of the Uniform Administrative Procedure Act) ² is compatible with traditional notions of appellate practice for it is fundamental that "[a] requisite element of appealability is that the party claiming error in the decision of the trial court be aggrieved; General Statutes § 52-263; Practice Book, 1978, § 3000; Rollins v. Holcomb, 122 Conn. 664, 666, 190 A. 260 (1937); Maltbie, Conn.App.Proc. §§ 6-7; for 'if a party attempting to appeal can by no possibility suffer injury by the judgment, he should not be permitted to appeal.' Waterbury Trust Co. v. Porter, [130 Conn. 494, 498, 35 A.2d 837 (1944) ]." Kulmacz v Kulmacz, 177 Conn. 410, 412, 418 A.2d 76 (1979). In the present instance, the freedom of information commission is arguably not a "party" and certainly not "aggrieved."

"The fundamental test for determining 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 members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.' Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 [1974]." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).

The commission here had no intrinsic interest in the present dispute over municipal employee sick leave records and conceded this to be the case. On December 29, 1976, in moving to join additional appellees in the matter then pending in Superior Court, the commission stated that "[t]he Freedom of Information Commission has no interest in such access for itself .... No legal right, duty, or privilege of the Freedom of Information Commission is at issue in this judicial review of its final decision."

Since the commission concedes that "no legal right, duty or privilege" of the commission is involved in this review, we are unable to find that "a specific personal and legal interest has been specially and injuriously affected by the [court's] decision." We therefore conclude that the defendant commission is not "aggrieved" within the meaning of the statute.

"Proof of aggrievement is an essential prerequisite to the court's jurisdiction of the subject matter of the appeal. Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 509, 242 A.2d 705 [1968]." Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 493, 400 A.2d 726. The appeal is therefore dismissed.

The cross appeals place in issue the propriety of Commissioner Brucker's having sat and voted as a commission member on the final order entered against the city when he had conducted the initial contested hearing on the issue, made findings, and recommended entry of the order against the city which was eventually adopted by a two to one vote of the full commission. We conclude that the commissioner was not disqualified and find no error.

The commissioner's conduct conformed to regulations adopted by the freedom of information commission which authorized the commission to designate a commission member to act as a hearing officer in a contested case. ³ The regulations further called for a proposed decision to be served on all parties with an opportunity to file exceptions, present briefs and make oral argument prior to any final vote on the matter. ⁴ This latter regulation conforms with General Statutes § 4-179 which authorizes such a procedure. ⁵

When a challenged administrative procedure comports with an administrative regulation, and that regulation comports with an act of the legislature, the scope of our review is limited. We have no independent mandate to find public policy in an area in which the legislature has definitively spoken. "Primarily, it is for the legislature, which is the arbiter of public policy, to determine what it shall be. Lyman v. Adorno, 133 Conn. 511, 514, 52 A.2d 702 [1947]; State v. Gilletto, 98 Conn. 702, 714, 120 A. 567 [1923]. And a constitutional statute can never, by judicial decree, be declared to be against such policy." General Motors Corporation v. Mulquin, 134 Conn. 118, 132, 55 A.2d 732 (1947); Laurel Bank & Trust Co. v. Mark Ford, Inc., 182 Conn. 437, 442, 438 A.2d 705 (1980); State v. Clemente, 166 Conn. 501, 546, 353 A.2d 723 (1974).

Because the regulations in this case were not inherently unlawful, and because § 4-179 is not unconstitutional, the plaintiffs cannot succeed in their argument that it was improper for Commissioner Brucker to vote as a member of the commission. In administrative law, a combination of investigative and adjudicative functions does not per se constitute a denial of due process. Withrow v. Larkin, 421 U.S. 35, 47-55, 95 S.Ct. 1456, 1464-1468, 43 L.Ed.2d 712 (1975). See 3 Davis, Administrative Law Treatise (2d Ed.1980) § 19:4.

We have reviewed the other claims in the cross appeal. In the circumstances of this case, and in light of our adjudication of the appeal itself, we find none of them persuasive. We therefore conclude that there is no error on the cross appeals.

The appeals of the defendant freedom of information commission...