Martone v. Lensink

• Decision Date: 03 May 1988
• Docket Number: No. 13328,13328
• Citation: 541 A.2d 488,207 Conn. 296
• Court: Connecticut Supreme Court
• Parties: Mark MARTONE v. Brian LENSINK, Commissioner of Mental Retardation.

Page 488

541 A.2d 488

207 Conn. 296

Mark MARTONE v. Brian LENSINK, Commissioner of Mental Retardation.

No. 13328.

Supreme Court of Connecticut.

Argued March 9, 1988.

Decided May 3, 1988.

Lawrence W. Berliner, for appellant (plaintiff).

James P. Welsh, Asst. Atty. Gen., with whom, on the brief, was Joseph I. Lieberman, Atty. Gen., for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

PETERS, Chief Justice.

This appeal concerns the legal consequences that General Statutes § 4-181 ¹ attaches to an agency's ex parte submission of documents to an administrative hearing officer. The plaintiff, Mark Martone, appeals from the Superior Court's denial of his administrative appeal from the hearing officer's decision affirming the proposal of the defendant, Brian Lensink, commissioner of mental retardation, to transfer the plaintiff from one group home to another. We find error and remand for further proceedings.

The record discloses the following history: At the time the defendant decided upon the plaintiff's transfer, the plaintiff, a mentally retarded adult, was residing at the Great Pond Group Home in Simsbury. Upon being notified of the defendant's intention to transfer the plaintiff to the Copper Valley Group Home in Cheshire, his mother requested a formal administrative hearing pursuant to General Statutes § 19a-460(b). ² At the hearing the plaintiff was represented by counsel and the defendant was represented by employees who were not attorneys.

Subsequent to the hearing, the hearing officer affirmed the department of mental retardation's decision to transfer the plaintiff to the Copper Valley Group Home. She found that the Copper Valley Group Home, unlike the Great Pond Group Home, had a sprinkler system and met institutional fire code standards. Because the plaintiff's compliance with emergency fire drills had been inconsistent, the hearing officer concluded that his transfer to the Copper Valley Home was in his best interest.

In her findings of fact and conclusions of law, the hearing officer noted that, after the conclusion of the hearing, the defendant had submitted four documents that had never been provided to the plaintiff. These she identified as: (1) "Fire Safety Issue," (2) "Unit Description," (3) "Day Program Description" and (4) "60 Day Plan of Care." She further indicated: "These additional documents were not in any way considered by the undersigned in arriving at her decision. This decision is based only on evidence adduced at the hearing." After issuance of the decision, the plaintiff, invoking General Statutes § 4 183(b), ³ promptly requested that the hearing be reopened on a variety of grounds includ ing the defendant's submission of additional documentation to the hearing officer without providing notice to the plaintiff or an opportunity to respond. The hearing officer denied the plaintiff's request.

As authorized by General Statutes § 4-183, the plaintiff thereafter appealed the hearing officer's decision to the Superior Court, claiming that the ex parte communication violated § 4-181 and rendered the hearing officer's decision void. ⁴ Relying on Henderson v. Department of Motor Vehicles, 4 Conn.App. 143, 493 A.2d 242 (1985), aff'd on other grounds, 202 Conn. 453, 521 A.2d 1040 (1987), the court held that the plaintiff had not sustained his burden of showing that the ex parte communication had prejudiced his rights. The administrative record forwarded to the court did not contain the additional documentation, and the plaintiff had not attempted to amplify the record. See General Statutes § 4-183(f). Given this evidentiary lacuna, the court declared its inability to determine whether the ex parte communication had been prejudicial to the plaintiff.

On appeal, the plaintiff argues that the trial court erred in (1) allocating to him the burden of showing prejudice from the ex parte communication under § 4-181, (2) requiring him to produce copies of the documents for review, and (3) failing to find that the defendant's actions irreparably prejudiced his right to due process of law and failing to void the hearing examiner's decision. We agree with the plaintiff's first two claims, and order a remand to determine the third.

The proper allocation of the burden of proof in the event of an unauthorized ex parte communication in violation of § 4-181 was decided by this court subsequent to the trial court proceedings in this case. Section 4-181 states in relevant part: "Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate." In Henderson v. Department of Motor Vehicles, 202 Conn. 453, 457-60, 521 A.2d 1040 (1987), we rejected the Appellate Court's view that a plaintiff who alleges a violation of § 4-181 bears the burden of showing prejudice. We held instead that if the statute was to be given significant effect, once a violation of the statute has been proved by the party seeking relief, the burden shifts to the agency to prove that no prejudice has resulted from the prohibited ex parte communication. Id., 460, 521 A.2d 1040. A necessary corollary of our decision was that the agency had the burden of presenting to the trial court the substance of the contested ex parte communication. Id., 459, 521 A.2d 1040.

The defendant does not take issue with our holding in Henderson. His principal argument is that the plaintiff has failed to show the necessary predicate for its applicability, a violation of § 4-181. Alternatively, even if such a showing has been made, the defendant maintains that any presumption of prejudice is rebutted by the unchallenged finding of the hearing officer, which the trial court upheld, that the plaintiff's best interest is served by his transfer to the Copper Valley Group Home. We find neither argument persuasive.

The defendant has made a two part claim in support of his argument that § 4-181 does not apply to the additional documentation submitted by the defendant to the hearing officer in this case. First, he maintains that the statute's command to a hearing officer "not [to] communicate, directly or indirectly ... with any ... party" proscribes only communications initiated by the hearing officer. Second, if the statute were to include a communication received by a hearing officer, he maintains that the record presently before us does not demonstrate that she actually read the additional documents.

The proper scope of § 4-181's prohibition against ex parte communication in contested administrative proceedings is a question of statutory construction, in which we must give effect to the apparent intent of the legislature as it is manifested in the language employed by its draftsmen. State v. Torres, 206 Conn. 346, 354, 538 A.2d 185 (1988); State v. Kozlowski, 199 Conn. 667, 673-74, 509 A.2d 20 (1986). We have frequently emphasized that the words of a statute " ' "are to be given their commonly approved meaning, unless a contrary intent is clearly expressed." ' " State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984). In statutory construction, we endeavor, moreover, "to read the statute as a whole and so as to reconcile all parts as far as possible." Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983).

As commonly understood, "communicate" includes the interchange of thoughts and ideas. Webster, Third New International Dictionary (1971). To "communicate" can therefore encompass the receipt of information in addition to its active transmission. The legislature's use of the phrase "directly or indirectly" to characterize the proscribed action suggests in addition that it intended a more rather than less inclusive definition of communication.

Moreover, as part of the Uniform Administrative Procedure Act (UAPA), § 4-181 must be read in the context of the rights to a hearing in contested cases and to judicial review of administrative decisions afforded by the act. General Statutes §§ 4-177, ⁵ 4-183. " 'The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them.' " Leib v. Board of Examiners for Nursing, 177 Conn. 78, 82, 411 A.2d 42 (1979), quoting Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1937). The right to judicial review is impeded if the reasons for an agency's actions are not accessible through a record. See PATCO v. FLRA, 685 F.2d 547, 564-65 n. 32 (D.C.Cir.1982); United States Lines, Inc. v. FMC, 584 F.2d 519, 541-42 (D.C.Cir.1978). The prohibition of ex parte communications in § 4-181 effectuates these rights. As the commissioner's comments state with regard to the identical provision in the Model State Administrative Procedure Act, "[t]his section is intended to preclude litigious facts reaching the deciding minds without getting into the record. Also precluded is ex parte discussion of the law with the party or his representative." State Administrative Procedure, § 13, 14 U.L.A. 426 (Master Ed. 1980). The purposes of § 4-181 are to prevent one party from exerting improper influence on the decisionmaker; cf. Seebach v. Public Service Commission, 97 Wis.2d 712, 721, 295 N.W.2d 753 (App.1980); and to ensure that the reasons underlying his or her decision are on the record. Cf. United States Lines, Inc. v. FMC, supra. We would undermine these acknowledged statutory purposes if we were to accept the defendant's narrow interpretation of the phrase "shall not communicate" so as to permit a...