can you write me a good detailed motion to dismiss based on the fact that Defendant asserts that she is shielded by absolute testimonial immunity, as the ethics investigation conducted by the [Board] qualifies as a quasi-judicial proceeding:

issue: : Is the tax assessor shielded by absolute testimonial immunity for claims of defamation predicated on her written ethics complaints?
 hinges upon a determination of if the ethics investigation is a quasi-judicial proceeding

In Kelley v. Bonney, 221 Conn. 549 (1992), the CT Supreme Court recognized several, non-dispositive factors that assist in determining whether a proceeding is quasi-judicial in nature:

1.	Agency’s ability to exercise judgment and discretion: (Satisfied)

The Board has the power to exercise judgment and discretion in evaluating complaints, conducting investigations, and determining if there is probable cause to believe a violation has occurred:
•	§ 32-11G(1): “Within 15 business days of receipt of the written complaint, the Board shall meet to determine if there is sufficient evidence to warrant an investigation.”
•	§ 32-11G(2)(a): “If the Board finds that the complaint has sufficient evidence to warrant an inquiry, the Board shall notify...the complainant and any respondent against whom such complaint is filed.”
•	§ 32-11G(2)(d): “The Board shall make no finding that there is probable cause to believe the respondent is in violation...except upon the concurring vote of four of its members.”

2.	Agency’s ability to (a) hear and determine or ascertain facts and (b) issue a decision: (Satisfied)

(a)	The Board can hear and ascertain facts by examining witnesses and receiving oral and documentary evidence: 
•	§ 32-11G(2)(b): “The Board shall have the power to...examine witnesses, receive oral and documentary evidence...”
•	§ 32-11G(3)(b): “At such hearing, the Board shall have the same powers as under Subsection G(2) of this section [including the power to examine witnesses and receive oral and documentary evidence].”

(b)	The Board can issue decisions such as dismissing a complaint (§ 32-11G(1)), finding probable cause (§ 32-11G(2)(d), (3)(a)), and determining violations. (§ 32-11G(3)(c), (4))
o	§ 32-11G(1): “If the Board...determines that the complaint does not merit investigation, the complaint shall be dismissed...”
o	§ 32-11G(2)(d): “The Board shall make no finding that there is probable cause to believe the respondent is in violation...except upon the concurring vote of four of its members.”
o	§ 32-11G(3)(a): “The Board shall notify the respondent and the complainant...of its finding and a summary of its reasons for making that finding.”
o	§ 32-11G(3)(c): “The Board shall find no person in violation of any provision of this chapter except upon the concurring vote of four of its members.”
o	§ 32-11G(4): “If the Board finds...that a public official or Town employee has not violated a provision of the chapter, the Board shall dismiss the case.”

3.	Agency’s ability to make binding orders and judgments: (Potentially Satisfied)

The Board’s decisions do not necessarily have “binding” effects. For example, if it finds a violation, it advises the appropriate body and recommends disciplinary action (§ 32-13), which can eventually impact the respondent’s position or employment. However, an argument can be made that depending upon how likely the subsequent body is to take the Board’s advice, this can be seen as “binding” (for example, if they generally accept all recommendations for discipline by the Board). 

•	§ 32-13: “Upon finding a respondent in violation of this chapter, the Board shall...advise the Town Council...or advise the Town Manager...or the Superintendent of Schools...or the Board of Education...as to the Board’s finding and its recommended disciplinary action.”


4.	Agency’s ability to affect the personal or property rights of private persons: (Potentially Satisfied)

The Board can affect the personal or property rights of private persons by recommending disciplinary action (§ 32-13), which could potentially lead to the loss of employment or a position on a board/committee. However, satisfying this factor is more of a stretch.

5.	Agency’s ability to examine witnesses: (Satisfied)

The Board can “examine witnesses” and “receive oral testimony.” § 32-11G(2)(b), (3)(b). See Factor 11(b).

6.	Agency’s ability to (a) hear the litigation of the issues at a hearing, and (b) enforce decisions and public policy or impose penalties.

(a)	The Board conducts hearings § 32-11G(2)(b), (3)(b), allowing the complainant and respondent to “appear and be heard” § 32-11G(2)(b)(ii), and “examine/cross-examine witnesses.” § 32-11G(2)(b)(iii), (3)(b) (Satisfied)

(b)	It enforces its decisions by advising the appropriate authority and recommending disciplinary action. § 32-13. (Potentially Satisfied) See Factor 3. 



In Priore v. Haig, 344 Conn. 636 (2022), the Supreme Court explained that courts charged with determining whether a proceeding is quasi-judicial in nature may consider, in addition to the six factors set forth in Kelley, any other factors that are relevant to the particular proceeding, including whether there are procedural safeguards in place to ensure the reliability of the information presented at the proceeding (Factor 7) and the authority of the entity to regulate the proceeding (Factor 8), and courts must carefully scrutinize whether there is a sound public policy justification for affording absolute immunity in any given context. (Factor 9)

7.	Whether there are procedural safeguards ensuring the reliability of the information presented at the proceeding: (Satisfied)

See: Factors 11 & 12

8.	The authority of the entity to regulate the proceeding: (Satisfied)

The Board has the authority to regulate the proceeding including subpoenaing witnesses and requiring the production of documents. § 32-11G(2)(b)

9.	Whether a sound public policy justification exists to confer absolute immunity in the situation: (Satisfied)

*“Even if an entity applies law to facts with adequate procedural safeguards, the proceeding is not quasi-judicial if there is no identifiable public policy supporting absolute immunity.” (Khan, at 36)

There is a sound public policy justification for conferring absolute immunity here. The ethics investigation aims to uphold “public confidence in the integrity of its government” (§ 32-1), and immunity for complainants encourages the reporting of potential violations without fear of retaliation or defamation claims.


Additionally, the guidance from Khan v. Yale University further supports the quasi-judicial nature of the proceeding:

10.	The entity conducting the proceeding must apply public law—be it constitutional, statutory, administrative, municipal, or common law—to facts for the purpose of rendering an adjudicatory decision. If the entity creates and applies only its own internal policies, the proceeding is not quasi-judicial. (Satisfied)

The Board applies public law, specifically the provisions of Chapter 32 of the Code of Ethics to the facts of each case “to determine if there has been a violation of this chapter.” § 32-11G(3)(a)



11.	“This court reviewed its case law, especially Priore, and identified various procedural safeguards that it has considered in determining whether a proceeding is quasi-judicial, including (a) whether the declarant testifies under oath or certifies to the truth of his or her statements, (b) whether there is an opportunity to cross-examine witnesses or to hold declarants accountable for false or misleading statements, (c) whether the accused individual received notice, (d) whether there is a right to appeal the adjudicator's decision, and, relatedly, (e) whether there is an adequate record of the proceeding.” (Khan, at 7) 

(a)	Testimony under oath/certification of truth (Satisfied)
o	§ 32-11G(1): While the ethics code does not explicitly mention testimony under oath, it does refer to the requirement for written complaints to be “signed under penalty of false statement;” implying that the complainant is attesting to the truth of their statements.
(b)	The opportunity for “cross-examination” or holding declarants accountable for false/misleading statements
o	Cross Examination: (Satisfied)
	§ 32-11G(2)(b)(iii): Granted to the complainant and respondent in the event of a hearing during the initial investigation 
	§ 32-11G (3)(a): Granted to the respondent in a post-probable cause hearing 
o	Accountability for False Statements: (Satisfied)
	The ethics code includes a provision for complaints made “with the knowledge that [they are] made without foundation in fact” (§ 32-11G(4)). In such cases, the respondent has a cause of action against the complainant, and if successful, may be awarded damages, costs, and reasonable attorney’s fees.
(c)	For notice, see Factor 13. (Satisfied)
(d)	The right to appeal the adjudicator’s decision: (Potentially Satisfied)
o	Stipulation Agreement: In § 32-11G(3)(a), it mentions that after finding probable cause, “the Board may postpone examination or release of such records for 14 days after termination of its investigation for the purpose of reaching a stipulation agreement pursuant to C.G.S. § 4-177(c).” This indicates that there is an opportunity for the parties involved to reach a stipulation agreement as an alternative to a formal appeal. While a stipulation agreement itself is not an appeal, it provides a mechanism for the parties to resolve the matter without progressing to a full hearing or legal challenge.
(e)	“The right to appeal… requires that an adequate record of the proceeding be available.” (Khan, at 33) (Satisfied)
o	§ 32-11G (3)(a): “If the Board finds that probable cause of a violation exists, it shall make public its finding no later than five business days after the termination of its investigation, and at said time the entire record of the investigation shall become public”
o	§ 32-11G (3)(b): “The Board shall make a record of all proceedings pursuant to this subsection.” 


12.	“This court has also stressed the importance of procedures such as (a) the opportunity for parties to call witnesses or otherwise have them subpoenaed, [and] (b) to have the meaningful assistance of counsel during the proceeding…” (Khan, at 31) (Satisfied)

(a)	Calling or subpoenaing witnesses: The ethics code grants both the complainant and respondent the opportunity to call witnesses during hearings. (Satisfied)
o	§ 32-11G(2)(b)(i): Grants both parties the right to “appear before the Board and be heard,” which implies the ability to present their case and call witnesses. 
o	§ 32-11G(2)(b): Grants the Board the power to “subpoena witnesses...to compel attendance before the Board.” This power further enhances the ability of parties to call witnesses, ensuring that those requested by either party are present at the hearing and available to provide testimony
(b)	The opportunity for meaningful assistance by counsel: (Satisfied)
o	§ 32-11G(2)(b)(iii): Granted to the complainant and respondent in the event of a hearing during the initial investigation.
o	§ 32-11G (3)(a): Granted to the respondent in a post-probable cause hearing 
o	§ 32-11G (3)(a): Granted to any witness in a post-probable cause hearing.


13.	Notice Requirement: “Thus, notice to the accused, who may be subjected to serious loss, is an important and necessary procedural safeguard that accompanies any quasi-judicial proceeding” (Khan at 30-31) (Satisfied)

	Notice of Complaint: 
o	In § 32-11G(1), it states that upon receipt of a written complaint, the Board shall “notify the complainant” within five days.
o	In § 32-11G(2)(a), it reiterates that if the Board decides to investigate, it shall “notify...the complainant and any respondent” within five business days.
	Notice of Investigation: The respondent is also notified of the investigation’s progress. 
o	In § 32-11G(3)(a), it states that after the investigation, the Board shall “notify the respondent and the complainant within three business days of the termination of its investigation” and provide them with its findings and a summary of the reasons for those findings.
	Notice of Hearings: While the code does not explicitly use the term “notice,” for hearings, it implies that the respondent and complainant are informed of any hearings.
o	In § 32-11G(2)(b) and § 32-11G(3)(b), it refers to the rights of the respondent and complainant during hearings, indicating that they are aware of and participate in these proceedings.
	Notice of Decisions: 
o	In § 32-11G(1), it states that if the Bord determines that a complaint does not merit investigation (by a vote of 4 members), the complaint shall be dismissed and notice of the dismissal shall be given to the complainant within five days.
o	In § 32-11G(3)(a), it states that the Board shall notify respondent and complainant of its finding and the reasons for that finding. 
o	In § 32-11G(4), it mentions that if the Board finds no violation, it shall “notify the respondent and the person who signed the written complaint...of its decision within 15 business days.”




Conclusion:

Based on the analysis of these factors with references to the relevant parts of the ethics code it appears that an ethics investigation conducted by the Board can be considered a quasi-judicial proceeding. The main three factors I am hung up on are (1) [most importantly] whether there is a right to appeal the adjudicator’s decision (Factor 11(d)), (2) whether the Board’s decision is “binding” (Factor 3), and (3) whether the Board truly has power to affect personal/property rights of private persons (Factor 4). While there definitely is an adequate record of the proceeding (Factor 11(e)), as required of an appeal, there does not seem to be a straightforward means of appealing the Board’s decision. It can be argued that since the Board’s decision is merely a “recommendation” of what discipline should be dished out, the fact that it is ultimately implemented by a separate body can be seen as a “review,” of the Board’s decision; similar to an appeal. Further, it can be argued that since there is a preliminary probable cause hearing and investigation prior to the main public hearing, a further layer of review is added. These arguments can be made in addition to the Stipulation Agreement argument I lay out under Factor 11(d). 

In sum, the complainant would likely be shielded by absolute testimonial immunity for claims of defamation predicated on the written ethics complaints. However, legitimate arguments to the contrary can be made as well.