Commission on Human Rights & Opportunities v. Windsor Hall Rest Home

Berdon, J.,

dissenting. Chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA), provides that a final decree may be “orally stated in the record.” General Statutes § 4-180. If § 4-180 alone was applicable to the commission on human rights and opportunities (commission), I would agree with the majority that the oral ruling by the presiding officer in this case constituted a final decision and that the appeal was not timely filed. We have long adhered, however, to the principle that specific terms in a statute covering a given matter will prevail over the more general language of another statute. Gaynor v. Union Trust Co., 216 Conn. 458,476-77, 582 A.2d 190 (1990); Kelly v. Dewey, 111 Conn. 281, 292, 149 A. 840 (1930) (“ ‘[wjhere there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and, if both cannot apply, the particular provision will be treated as an exception to the general provision’ ”).

General Statutes § 46a-86, which specifically applies to the commission, indicates that a decision on a motion to dismiss a complaint must be in writing. Section 46a-86 (e) provides that “[i]f, upon all the evidence, the presiding officer finds that the respondent has not engaged in any alleged discriminatory practice, the presiding officer shall state his findings of fact and shall *196issue and file with the commission and cause to be served on the respondent an order dismissing the complaint.” Because § 46a-86 specifically pertains to the commission it prevails over the more general administrative agency provisions included in the UAPA.1

Both the plain language of this specific provision and public policy considerations compel the conclusion that the decision of a hearing officer dismissing a complaint must be in writing. First, the requirement of § 46a-86 (e) that the hearing officer “file” his order indicates that it must be written. Absent a technical meaning or the use of a term of art, or except where the context requires otherwise, we must construe words used in statutes and regulations according to their commonly approved usage. Carr v. Bridgewater, 224 Conn. 44, 56-57, 616 A.2d 257 (1992). “To file” means: “to deliver (as a legal paper or instrument) ... to the proper officer for keeping on file or among the records of his office”; or “to place (as a paper or instrument) *197on file among the legal or official records of an office [especially] by formally receiving, endorsing and entering.” (Emphasis added.) Webster’s Third New International Dictionary. The definition of the term when used in a legal context is practically identical: “to file” means “[t]o lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference.” Black’s Law Dictionary (6th Ed. 1991). There is no reason to interpret “to file” under § 46a-86 (e) as implicating any meaning other than its ordinary usage. The presiding hearing officer in this case was therefore required “to file” her decision with the commission and, because oral decisions cannot be filed, a written decision is mandated under § 46a-86.2

Second, public policy considerations strongly support the conclusion that a presiding hearing officer may only issue a written final decision dismissing a complaint. Complaints made to the commission often implicate sensitive matters of constitutional proportions. For example, in this case the complainant claimed that her employer discriminated against her because of her race. If, as in this case, the presiding hearing officer determines that the complaint should be dismissed for failure to establish a prima facie case, the requirement that the decision be set forth in writing enhances the perception of the agency’s credibility by assuring a more thoughtful decision.

*198Accordingly, I am of the opinion that the time in which the commission was required to file its appeal— that is, forty-five days—did not begin to run until the hearing officer filed a written decision. This was not done until January 11, 1993.3 Therefore, the appeal filed on January 22, 1993, by the commission was timely.

I respectfully dissent.

Furthermore, the commission’s regulations that were in effect at the time of the complaint at issue in this case indicate that orders generally issuing from the commission must be in writing. See Regs., Conn. State Agencies § 31-125-46 (presiding officer must issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice or issue and file with the commission an order dismissing the complaint), § 31-125-47 (commission must file all orders at the office of the commission in the city of Hartford and keep such orders open to public inspection), § 31-125-53 (orders may be served personally, by registered mail, by telegraph or by leaving a copy thereof in the principal office or place of business or abode of the persons to be served). When an act may be accomplished orally, the commission’s regulations explicitly say so. See Regs., Conn. State Agencies §§ 31-125-31 and 31-125-48. This court must accord great deference to the construction given a statute by the agency charged with its enforcement. Preston v. Dept, of Environmental Protection, 218 Conn. 821, 830, 591 A.2d 421 (1991). This principle applies with even greater force to the agency’s interpretation through its own duly adopted regulations which have the same force and effect of law unless they are shown to be inconsistent with the authorizing statutes. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).

I disagree with the majority’s analysis that the oral ruling of the presiding officer was final because the commission did not seek “either by an internal procedure or by resort to § 4-180 (a) and (b), to compel the presiding officer to reduce her oral decision to writing.” There is simply no requirement that the commission initiate such a process. In this case, eleven days after the hearing officer rendered a written decision, albeit on the motion to reargue, the commission filed its appeal. Furthermore, the majority’s concern that if a written decision were required, the appeal period could be extended indefinitely is unfounded. Although neither party is obligated to invoke § 4-180 in order to obtain a written decision, either may do so, thereby limiting the appeal period.

As a practical matter, the appeal should not have come as a surprise to the defendant, Windsor Hall Rest Home. The hearing officer delivered an oral decision on November 4,1992, dismissing the complaint. On November 19,1992, the commission petitioned the hearing officer to reconsider the decision of dismissal. On January 11,1993, the hearing officer issued a written decision denying the petition to reconsider. This appeal followed on January 22, 1993.