Petrowski v. Norwich Free Academy

• Decision Date: 11 September 1984
• Docket Number: No. 2415,2415
• Citation: 2 Conn.App. 551,481 A.2d 1096
• Court: Connecticut Court of Appeals
• Parties: , 20 Ed. Law Rep. 608 Mary PETROWSKI v. NORWICH FREE ACADEMY et al.

Page 1096

481 A.2d 1096

2 Conn.App. 551, 20 Ed. Law Rep. 608

Mary PETROWSKI v. NORWICH FREE ACADEMY et al.

No. 2415.

Appellate Court of Connecticut.

Argued Jan. 10, 1984.

Decided Sept. 11, 1984.

Marvin M. Horwitz, Norwich, with whom, on the brief, were Deborah H. Benson and Gregg C. Benson, Norwich, for appellant (plaintiff).

Edmund S. Hicks, Jr., Hartford, with whom, on the brief, was Henry S. Cohn, Hartford, for appellees (defendants).

Before HULL, DUPONT and BORDEN, JJ. DUPONT, Judge.

The sole issue of this appeal ¹ is whether two lawyers who were members of the board of trustees of a privately endowed high school could, without a denial of due process rights accorded by the fourteenth amendment to the United States constitution, ² participate in a hearing and a decision on whether to terminate a tenured teacher's contract of employment with the school, when other members of their law firm, both prior to, and as of the date of the hearing, represented the school in other unrelated matters and considered the school a representative client for purposes of legal advertising.

The plaintiff teacher, upon receiving written notice that a termination of her contract was under consideration, requested a hearing before the board of trustees of the high school pursuant to General Statutes (Rev. [2 Conn.App. 553] to 1983) § 10-151(b). ³ During the course of that hearing, she sought to have two members of the board disqualify themselves on the ground that they had an interest in the case sufficient to interfere with their impartiality. ⁴ They refused to disqualify themselves. The board unanimously voted to terminate the plaintiff's employment contract and the plaintiff appealed from that decision to the Superior Court. That court found that neither member of the board was prejudiced against the plaintiff, and that the personal interests of both in the outcome of the proceedings were too nebulous and remote to have required their disqualification. The court rendered judgment for the defendants dismissing the plaintiff's appeal, from which the plaintiff has appealed.

A member of a school board, when participating in an administrative hearing to determine if a tenured teacher's contract should be terminated, is acting in a quasi-judicial capacity. Catino v. Board of Education, 174 Conn. 414, 417, 389 A.2d 754 (1978). A tenured teacher has a right to continued employment except upon a showing of cause for termination or a bona fide elimination of the teaching position. General Statutes § 10-151(d). That right is a property right under the due process clause of the fourteenth Amendment to the United States constitution and Article first, § 8 of the Connecticut constitution. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). As such, courts must ensure, upon review of a decision to terminate employment, that the right to employment is meaningfully protected. Id., 83, 434 A.2d 333. That protection includes a fair hearing by an impartial hearing panel. Catino v. Board of Education, supra, 174 Conn. 418, 389 A.2d 754.

Since a tenured teacher has a constitutionally protected property interest in his or her employment, the question, in the context of this case, becomes what constitutes an impartial hearing panel sufficient to satisfy constitutional due process. Due process requires a fair hearing before a fair tribunal which principle applies with equal vigor to administrative adjudicatory proceedings. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973).

In order to determine if the board in this case was constitutionally impartial, it is first necessary to determine what guidelines for disqualification prevail in an administrative hearing relating to a termination of a tenured teacher's employment contract. Differing standards for disqualification apply to different administrative hearings. Allen, "Disqualifying Agency Decision Makers," Litigation, Winter 1981, p. 15. Administrative hearings may be categorized as quasi-judicial, legislative, prosecutorial, or rulemaking. ⁵

The parties in the present case rely almost entirely, in their briefs, on Connecticut cases relating to the disqualification of members of zoning commissions, zoning boards, and planning commissions. Such cases provide helpful guidelines for the necessity of disqualification in some administrative hearings. The disqualification of members of such boards and commissions has been governed by specific statutes since the leading case of Low v. Madison, 135 Conn. 1, 60 A.2d 774 (1948). After that case held that public officers, such as members of zoning commissions, cannot sit as members when their private interests could conflict with their duty to be fair and impartial, the legislature enacted General Statutes §§ 8-11 and 8-21. These statutes prohibit members of such boards and commissions from representing those with matters before the boards and commissions, and from serving on such bodies when the members are directly or indirectly interested in those matters in a personal or financial sense. Cases decided pursuant to these statutes are illustrative of the basic premise that "no man shall be a judge in his own case" and serve as a statutory guide in cases involving such boards and commissions as well as in cases not involving them. Dana-Robin Corporation v. Common Council, 166 Conn. 207, 213-14, 348 A.2d 560 (1974); Furtney v. Zoning Commission, 159 Conn. 585, 592, 271 A.2d 319 (1970); Anderson v. Zoning Commission, 157 Conn. 285, 290, 253 A.2d 16 (1968); Kovalik v. Planning & Zoning Commission, 155 Conn. 497, 498-99, 234 A.2d 838 (1967); Josephson v. Planning Board, 151 Conn. 489, 493, 199 A.2d 690 (1964). The holdings of such cases support the general propositions that the requirement of disqualification depends upon the facts of the particular case and that public officials cannot have a personal interest in the subject matter or a relationship with one of the parties which would destroy their impartiality or conflict with their duty.

A recent case, which does not discuss disqualification of a public official in terms of due process and which does not involve the application of General Statutes §§ 8-11 and 8-21, does affirm the principles of Low v. Madison, supra. In Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 474 A.2d 752 (1984), it was determined on the particular facts of that case that a member of the water authority did not have a personal interest sufficient to conflict with his public duty to determine benefit assessments for industrial users of a public sewerage system. The member was an officer of one of the industrial users. Although he participated in the vote adopting the method of benefit assessments, that method was not devised by the authority but was recommended by a consultant hired by the water authority, and the industrial user of which he was an officer did not benefit from either the method of calculation or the date chosen for determining the assessment. The court quotes from Low v. Madison, supra, 135 Conn. 8, 60 A.2d 774, noting that the actual good faith of a public officer is immaterial since it is the policy of the law to insure that such official exercises his public duty unselfishly, without any conflict because of a personal interest in the matter. "The test is not whether personal interest does, in fact, conflict, but whether it might reasonably conflict." Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, supra, 192 Conn. 648, 474 A.2d 752. "[T]he appearance of impropriety created by a public official's participation in a matter in which he has a pecuniary or personal interest is alone sufficient to require disqualification." Id., 649, 474 A.2d 752. It is particularly important to note that Gaynor-Stafford does not involve a public body acting in a quasi-judicial capacity, but, rather, one in a legislative or rulemaking capacity since the procedure or formula used by the authority applied equally to all those to be assessed.

Federal case authority is consonant with Connecticut cases. A line of federal cases, beginning in 1926, discuss general principles relating to the due process requirements of administrative hearings. All agree that due process is violated when there has been an impermissible risk of bias, or a lack of entitlement to an impartial and disinterested tribunal. Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982); Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980); Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927); Wolkenstein v. Reville, 694 F.2d 35 (2d Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2452, 77 L.Ed.2d 1332 (1983); Amos Treat & Co. v. Securities and Exchange Commission, 306 F.2d 260 (D.C.Cir.1962). None relies upon a particular statute governing disqualification. The results vary with the facts. Due process is an elusive concept which lacks definable boundaries.

During the period 1969 to 1979, "the Supreme Court has proceeded case-by-case in determining whether due process applies to various functions of administrative agencies, and in determining the specific process required." Note, "Due Process and Ex Parte Contacts in Informal Rulemaking," 89 Yale L.J. 194, 200 (1979).

The case of Simard v. Board of Education, 473 F.2d 988 (2d Cir.1973), is relied on by both parties. The plaintiff cites it because of its reaffirmation of the principle that an impartial decision maker is a basic component of minimal due process and that an administrative hearing must contain every element of fairness,...