Glastonbury Education Ass'n v. Freedom of Information Commission

Schaller, J.,

dissenting. This appeal involves the right of the public to attend a hearing conducted by an arbitration panel involving a contract dispute between the Glastonbury education association and the Glastonbury board of education. The arbitration hearing was held when the parties failed to settle their contract dispute during the negotiation and mediation phases of collective bargaining. Because I believe the right of the public to be present at that hearing, as ordered by the freedom of information commission (FOIC), is supported by existing statutory and decisional law, I respectfully dissent.

*120My conclusions differ from those of the majority with respect to three fundamental issues: (1) the withholding of deference to the FOIC; (2) the interpretation and application of legislative history to the pertinent statutes; and (3) the lack of acknowledgment of the persuasive authority of the Supreme Court decision on an analogous situation in Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190, 470 A.2d 1209 (1984).

I

The majority has determined that the deference usually afforded an administrative agency; see Levanti v. Dow Chemical Co., 218 Conn. 9, 15-16, 587 A.2d 1023 (1991); Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994); should not be accorded to the FOIC in this case because the FOIC has interpreted General Statutes § l-18a (b) in a manner inconsistent with its previous interpretation of the same statute in Radford v. Trumbull, Docket No. FIC 79-246 (1980). I do not characterize the decision in Radford so as to require the withholding of deference in the present case. The issue before the hearing officer in Radford was a narrow one; namely, whether the specific last best offer submitted by the negotiator for the board of education was exempt from disclosure under General Statutes § 1-19 (b) (9). The FOIC adopted the finding of its hearing officer that the last best offer in question was a “record or statement of strategy or negotiations with respect to collective bargaining” and, therefore, exempt. The hearing officer also found that Public Acts 1979, No. 79-405, “permits the collective bargaining process to continue during the arbitration procedure and after the submission of the last best offers of the parties to the arbitrators.”

The decision in Radford — involving the disclosure of a single document consisting of a particular last best *121offer — cannot be said to be inconsistent with the FOIC decision in the case before us. This case involves an issue of far greater scope than did Radford. Involved here is the issue of whether the public may be excluded from the entire arbitration hearing. The arbitration statute pertaining to the hearing provides “[a]t the hearing, each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its position.” General Statutes § 10-153f (c) (2). The hearing involves the presentation of evidence and argument, in addition to the presentation of last best offers. Because the FOIC’s decision in Radford is not inconsistent with its decision in this case, I believe that the FOIC should be given the usual deference with respect to its decision in this matter.

II

The majority relies on legislative history for assistance in interpreting the “intent of the legislature as to whether the arbitration proceedings are exempt from the FOIA [Freedom of Information Act, General Statutes § 1-15 et seq.]” based on the conclusion that “[i]t is facially unclear from the statutory language whether arbitration proceedings are subject to the FOIA under General Statutes § 1-21.”

Our Supreme Court has stated that it is “mindful when inspecting the statutory text that the intent of the legislature is to be found not in what it meant to say but in what it did say. Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50, 494 A.2d 564 (1985). When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987).” (Internal quotation marks omitted.) Winslow v. Lewis-Shepard, *122Inc., 216 Conn. 533, 537-38, 582 A.2d 1174 (1990). In my view, the statutory language of § l-18a (b) is plain and unambiguous with respect to the issue with which we are concerned, namely, whether the term meeting applies to all or part of the collective bargaining process. Section l-18a (b) quite clearly excludes, not collective bargaining in general, but “strategy or negotiations with respect to collective bargaining.” (Emphasis added.) On the basis of the statutory language itself, the legislature did not exclude the entire collective bargaining process. Had the legislature wished to do so, it could easily have used the term collective bargaining alone in § l-18a (b).

During the FOIC hearing in this case, in fact, testimony was presented indicating that matters involving strategy or negotiations could arise during the arbitration hearing. The FOIC order adequately provided for the eventuality that strategy and negotiations, in addition to testimony, presentation of evidence, and argument, would occur during the arbitration hearing. Clearly, the parties would be entitled to recess the public hearing for the purpose of conducting negotiations or strategy discussions in private. The FOIC found that the purpose of this particular hearing was to allow the board and the GEA each to present “a ‘last best contract’ offer and to submit evidence and argument on behalf of their positions” and that the “respondent panel’s hearings may and often do lead to further negotiation . . . .”

In my view, therefore, there is no need to look to legislative history to illuminate this issue.11 conclude, *123therefore, that the statutory language is clear and that only strategy or negotiations with respect to collective bargaining is excluded by General Statutes § l-18a (b). The FOIC order correctly and thoroughly addressed this issue.

Ill

In General Statutes § l-18a (b), the term “meeting” is broadly defined to include “any hearing or other proceeding of a public agency. . . .” The arbitration hearing phase of the collective bargaining process unmistakably falls within this definition of meeting and the narrow exclusion does not apply to the entire arbitration hearing. At the outset, I note that General Statutes § 10-153Í (c) (2) refers to the arbitration procedure as a hearing. That statute provides in pertinent part that “[t]he chairperson of the arbitration panel or the single arbitrator shall set the date, time and place for a hearing to be held in the school district .... At the hearing each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its positions. . . . The chairperson of the arbitration panel or the single arbitrator shall preside over such hearing.” General Statutes § 10-153Í (c) (2).

As the FOIC correctly argues, there can be no question that the statutory language of § 10-153Í (c) (2) meshes with the general definition of hearing previously recognized by our Supreme Court as well as this court. Herman v. Division of Special Revenue, 193 Conn. 379, 382-83, 477 A.2d 119 (1984); Leabo v. Leninski, 9 Conn. App. 299, 302, 518 A.2d 667, cert. *124denied, 202 Conn. 806, 520 A.2d 1286 (1986). The term hearing refers to a “ ‘[proceeding of relative formality .. . generally public, with definite issues of fact and law to be tried. . . .’ ” Herman v. Division of Special Revenue, supra, 382-83; Leabo v. Leninski, supra, 302.

Given the above interpretation of the term hearing, the decision of our Supreme Court in Board of Police Commissioners v. Freedom of Information Commission, supra, 192 Conn. 183, involving an analogous situation, provides persuasive authority to uphold the FOIC decision rendered in this case. In Board of Police Commissioners, our Supreme Court examined the application of General Statutes § 1-21, which provides that “[t]he meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public.” That case involved the following factual scenario: a police officer was summoned to appear before the board due to an alleged violation of a departmental rule. Board of Police Commissioners v. Freedom of Information Commission, supra, 186. The hearing was open to the public. After the presentation of testimony and arguments, the board left the room to consider the charges against the officer. Id. The officer claimed, however, that during these deliberations, the board considered “such evidence as his personnel file and some comments which had not been presented at the open hearing . . . .” Id., 190.

The court held that General Statutes § 1-21 “must, be construed to mandate that the ‘hearing’ portion of an administrative proceeding, where evidence and arguments are presented, be open to the public.” The court further held that the term “executive session,” in “the context of this case, did not authorize the presentation of additional evidence during the ‘discussion’ of [the officer’s] case by the board.” Id., 190-91. The court remanded the case for further proceedings because the FOIC failed to make any findings with *125regard to the officer’s assertions that the board had improperly considered evidence that was presented behind closed doors.

The decision in Board of Police Commissioners supports the appropriateness of the FOIC order in this case. The testimony presented at the FOIC hearing reveals that the process of recessing the hearing format for the purpose of discussing strategy is well established and actually occurs.2 It is not difficult to envision that recessing for the purpose of negotiating can occur, as well.

My position is further supported by the general purpose and construction of the FOIA as set forth by our Supreme Court, which has repeatedly stated that the FOIA “ ‘ “expresses a strong legislative policy in favor of the open conduct of government and free public access to its records.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 [1980].’ Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980); see also Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Board of Police Commissioners v. Freedom of Information Commission, [supra, 192 Conn. 188].” Lieberman v. State Board of Labor Relations, 216 Conn. 253, 266, 579 A.2d 505 (1990). The Supreme Court also has noted that the “construction of the FOIA must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, *126604 A.2d 351 (1992); Rose v. Freedom of Information Commission, 221 Conn. 217, 233, 602 A.2d 1019 (1992); Lieberman v. State Board of Labor Relations, [supra, 216 Conn. 266]; Board of Police Commissioners v. Freedom of Information Commission, [supra, 188].” Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992). The FOIC order provides a correct and realistic approach to the situation presented by this case, while ensuring that the important, overriding policy considerations behind the FOIA are respected.

Because I believe the FOIC properly determined that the arbitration hearing is subject to the FOIA, I would reverse the judgment of the trial court.

Accordingly, I respectfully dissent.

Looking at the legislative history, however, it is revealing that Representative Martin Burke, in addition to making the remarks quoted by the majority, went on to say: “It was thought that the give-and-take in negotiating sessions of collective bargaining was much too sensitive to require that this be done in public.” (Emphasis added.) 18 H.R. Proc., Pt. 8,1975 Sess., p. 3896. That statement clarifies that the legislative concern was with “the *123give-and-take in negotiating sessions of collective bargaining”; id.; rather than with the entire process. The conclusion that the legislature excluded only “strategy or negotiations with respect to collective bargaining”; id., p. 3897; from public access, with the hearing itself subject to the FOIA, is neither internally inconsistent nor in conflict with the provisions of the Teacher Negotiation Act.

At the FOIC hearing, the following colloquy ensued between Kathleen Stack, one of the complainants, and Donald Deneen, a member of the arbitration panel:

“[Stack]: [B]ut if [the parties] want to compare offers or modify offers, would they do that in discussions before [the arbitration panel] or do they do that someplace else?

“[Deneen]: Usually the parties individually caucus, not together, and decide whether they want to change position or not.”