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*********************************************** 
DEPARTMENT OF PUBLIC HEALTH v.

JUANITA ESTRADA ET AL.

(AC 43891)

Alexander, Suarez and DiPentima, Js.

Syllabus

The defendant E filed a complaint with the defendant Commission on Human

Rights and Opportunities, alleging that her employer, the plaintiff Department of Public Health, had retaliated against her for a protected whistleblower disclosure that she made pursuant to statute (§ 4-61dd). As

part of her job duties, E was assigned to review an appointment letter

submitted to the department by the then director of health for the city

of Hartford, requesting approval of W as the acting director of health

for the city. Both the letter and W’s resume indicated that W held a

master’s degree in public health. Although she did not independently

verify that W had actually received a master’s degree in public health,

E drafted a letter approving W’s appointment, which the commissioner

of the department signed. E later learned that W did not possess a

master’s degree in public health, and she reported that information to

her supervisor. Following this disclosure, E received multiple written

reprimands and negative and unsatisfactory performance appraisals,

and she was demoted, all of which she claimed were the result of

retaliation for her disclosure. A hearing was held before a human rights

referee from the commission’s Office of Public Hearings, who concluded

that E had made a protected whistleblower disclosure under § 4-61dd

and that the department had retaliated against her for such disclosure.

The department appealed to the trial court, which sustained the appeal,

concluding that E’s disclosure did not qualify as a whistleblower disclosure under § 4-61dd, that E failed to establish a causal connection

between any alleged whistleblower disclosure and the complained of

personnel actions, and that the commission lacked subject matter jurisdiction to adjudicate E’s complaint because she had brought the same

adverse personnel actions at issue through the grievance procedures in

her collective bargaining agreement. On appeal to this court, held:

1. The trial court erred in concluding that the commission lacked subject

matter jurisdiction to adjudicate E’s complaint: it was undisputed that

§ 4-61dd contains a statutory waiver of sovereign immunity and confers

on the Office of Public Hearings the authority to adjudicate whistleblower retaliation claims; moreover, the fact that § 4-61dd provides

an alternative avenue for a complainant to seek redress for adverse

personnel actions taken in retaliation for a whistleblower disclosure,

namely, through the procedures provided in an applicable collective

bargaining contract, did not deprive the Office of Public Hearings of

subject matter jurisdiction over E’s claim, as the issue concerned her

election of remedies rather than subject matter jurisdiction; accordingly,

pursuant to § 4-61dd, the Office of Public Hearings had subject matter

jurisdiction to adjudicate E’s whistleblower retaliation claim.

2. The trial court properly concluded that E did not make a protected

whistleblower disclosure pursuant to § 4-61dd: the educational qualifications required by statute ((Rev. to 2015) § 19a-200) did not apply to W,

an acting director of health, because the statute distinguishes between

directors of public health, who must, inter alia, possess a degree in

public health, and acting directors of health, who must only be deemed

suitable to serve as acting director during the period in which the director

of public health is absent or unable to serve or in which a vacancy

exists; accordingly, because W’s appointment did not result in a violation

of (Rev. to 2015) § 19a-200, E did not disclose a violation of state law,

and she was not entitled to protection under § 4-61dd.

Argued October 14, 2021—officially released March 15, 2022

Procedural History

Appeal from the decision of a human rights referee

for the defendant Commission on Human Rights and
Opportunities concluding that the named defendant

made a protected whistleblower disclosure for which

the plaintiff had retaliated, brought to the Superior

Court in the judicial district of New Britain, where the

court, Cordani, J., rendered judgment sustaining the

appeal, from which the defendants appealed to this

court. Affirmed.

Anna-Marie Puryear, human rights attorney, with

whom, on the brief, were Michael E. Roberts, human

rights attorney, and Eric C. Krupa, former human rights

attorney, for the appellant (defendant Commission on

Human Rights and Opportunities).

Jennifer P. Bennett, assistant attorney general, with

whom, on the brief, were William Tong, attorney general, Clare E. Kindall, solicitor general, and Matthew

Larock, assistant attorney general, for the appellee

(plaintiff).
Opinion

ALEXANDER, J. This appeal arises out of an alleged

whistleblower retaliation action filed by the defendant

Juanita Estrada in which a human rights referee (referee) from the Office of Public Hearings (office of public

hearings) of the defendant Commission on Human

Rights and Opportunities (commission) concluded that

Estrada made a protected whistleblower disclosure pursuant to General Statutes § 4-61dd. Thereafter, the

Superior Court sustained the appeal of the plaintiff, the

Department of Public Health (department), concluding

that Estrada’s disclosure to her supervisor was not a

whistleblower disclosure under § 4-61dd, that Estrada

failed to establish a causal connection between any

alleged whistleblower disclosure and the complained

of personnel actions, and that the commission lacked

subject matter jurisdiction to adjudicate Estrada’s complaint because she had brought the same adverse personnel actions at issue through the grievance procedures in her collective bargaining agreement. On appeal,

the commission claims that the court erred (1) in concluding that the commission lacked subject matter jurisdiction to adjudicate Estrada’s complaint, (2) in concluding that Estrada did not make a protected

whistleblower disclosure pursuant to § 4-61dd, (3) in

concluding that Estrada failed to establish a causal connection between the alleged disclosure and the adverse

personnel actions, and (4) by failing to apply the proper

standard of review in its analysis of the administrative

decision. We agree with the commission that the court

improperly determined that the commission lacked subject matter jurisdiction to adjudicate Estrada’s whistleblower retaliation complaint. We determine, however, that the court properly concluded that Estrada

did not make a protected whistleblower disclosure pursuant to § 4-61dd and that the court applied the proper

standard of review in making this determination.

Accordingly, we affirm the judgment of the court.

The following facts, as found by the referee, and

procedural history are relevant to our resolution of

the defendants’ appeal. Estrada began working for the

department in 1995 as an epidemiologist. By 2010, she

had been promoted to the position of epidemiologist 4

within the department’s division of the Office of Local

Health Administration (OLHA). The OLHA is responsible for coordinating with and ensuring delivery of public

health services to local health departments. These local

health departments are made up of municipal health

departments and regional health districts. Pursuant to

General Statutes (Rev. to 2015) § 19a-200 (a),1

the director of each local health department is nominated at the

local level.2

Section 19a-200 also prescribes the minimum qualifications that a director of health must possess. Pursuant

to § 19a-200 (a), the director of health for a municipality
must ‘‘(1) be a licensed physician and hold a degree

in public health from an accredited school, college,

university, or institution, or (2) hold a graduate degree

in public health from an accredited school, college or

institution. . . .’’ General Statutes (Rev. to 2015) § 19a200 (a). Additionally, § 19a-200 (a) provides in relevant

part: ‘‘In case of the absence or inability to act of a city,

town or borough director of health or if a vacancy exists

in the office of such director, the appointing authority

of such city, town or borough may, with the approval

of the [commissioner of the department], designate in

writing a suitable person to serve as acting director of

health during the period of such absence or inability

or vacancy, provided the commissioner [of the department] may appoint such acting director if the city, town

or borough fails to do so. The person so designated,

when sworn, shall have all the powers and be subject

to all the duties of such director. . . .’’ General Statutes

(Rev. to 2015) § 19a-200 (a).

As part of Estrada’s job duties as an epidemiologist

4 within the OLHA, she was assigned to review an applicant’s qualifications to serve as a director or acting

director of health. ‘‘[T]he customary process within the

OLHA was to review a letter from a municipality or a

district board of health appointing an individual to a

permanent or acting director of health. Once the OLHA

received the appointment letter from a municipality or

the district board of health, [Estrada] would review the

appointed individual’s resume to ensure that it stated

that the individual had a graduate degree from an accredited school.’’ ‘‘Once [Estrada] reviewed the appointment

letter and resume, she would then draft a letter for

[Ellen] Blaschinski’s3

review stating that the [department] approved the appointment. After Blaschinski

reviewedthelettershewouldsendit[to]thecommissioner

of [the department] for [the commissioner’s] review.

Between 2011 and July, 2015, [Estrada] and Blaschinski

undertook this process approximately ten times.’’

‘‘On May 8, 2015, [Raul] Pino, then director of health

for the city of Hartford, submitted a letter requesting

approval of Ruonan Wang as acting director of health

for the city of Hartford.’’ Both Pino’s letter and Wang’s

resume stated that Wang held a master’s degree in public health from the University of Connecticut. After

receiving the letter and resume, Estrada drafted a letter

for Blaschinski’s review but did not verify that Wang

actually had received a master’s degree in public health.

The letter subsequently was signed by the commissioner of the department approving Wang’s appointment as acting director of health.4

On June 17, 2015, an employee of the department

notified Estrada that she had received information from

an employee of the city of Hartford that Wang did not

possess a master’s degree in public health. Estrada

asked her secretary to contact the University of Con-
necticut, who confirmed that Wang in fact did not

receive a master’s degree in public health from the

university.5 Thereafter, Estrada reported this new information to Blaschinski.

In July, 2017, Estrada filed an amended complaint

with the commission in which she alleged that her

report to Blaschinski, which stated that Wang did not

possess a graduate degree in public health, disclosed

a violation of § 19a-200 because the statute requires

that a person nominated for the position of director of

health hold a graduate degree in public health. She

alleged that this new information constituted a protected whistleblower disclosure pursuant to § 4-61dd.

She further claimed that, after her report to Blaschinski,

she was subjected to retaliation on multiple occasions.

Estrada alleged that, in response to her disclosure, she

received multiple ‘‘unwarranted and unjustified written

reprimand[s]’’ and ‘‘negative and unsatisfactory performance appraisal[s]’’ and that she was demoted from

the position of epidemiologist 4 to epidemiologist 3.

Pursuant to § 4-61dd, Estrada sought, inter alia, ‘‘compensation for [lost wages], restoration of her position

[as] epidemiologist 4, [damages for] emotional distress

and loss of enjoyment [of life’s activities], the removal

of documentation from her personnel file reflecting the

acts of retaliation against her, and reimbursement for

the attorney’s fees and costs that she has incurred

. . . .’’

A hearing on Estrada’s complaint took place in September, 2017. In July, 2018, the referee issued a final

decision in which she concluded that Estrada had made

a protected whistleblower disclosure under § 4-61dd

and that the department had retaliated against her.6

Thereafter, the department appealed to the Superior

Court. On January 14, 2020, after a hearing, the court

issued a memorandum of decision sustaining the appeal

and rendering judgment for the department. The court

concluded that the commission lacked subject matter

jurisdiction to adjudicate the complaint, that Estrada

had not made a protected whistleblower disclosure

under § 4-61dd, and that Estrada had failed to establish

a causal connection between any alleged whistleblower

disclosure and the alleged retaliation.7 This appeal followed.

I

We first address the commission’s claim that the

court erred in concluding that the commission lacked

subject matter jurisdiction to adjudicate Estrada’s complaint. We agree.

The following additional facts and procedural history

are relevant to our resolution of this claim. In its answer

to Estrada’s amended whistleblower retaliation complaint, the department asserted five special defenses.

The first special defense asserted that ‘‘[t]he office of
public hearings lacks subject matter jurisdiction over

this complaint, as [Estrada] fails to make a valid claim

of whistleblower retaliation, as required by . . . § 4-

61dd.’’8 Additionally, the department filed a ‘‘motion to

dismiss and/or strike’’ in which it argued, inter alia, that

the office of public hearings lacked jurisdiction ‘‘to hear

a whistleblower claim for any of [Estrada’s] alleged

adverse personnel actions for which she has filed a

grievance under her collective bargaining contract . . .

because the two remedies are mutually exclusive’’ and

that Estrada’s claims did not ‘‘fall under the purview

of . . . § 4-61dd and are therefore barred by sovereign

immunity.’’ This motion was denied by the referee.

In its posthearing brief, the department argued that

the office of public hearings lacked jurisdiction because

§ 4-61dd offered Estrada ‘‘a clear choice of either filing

a grievance or bringing the instant [whistleblower retaliation] case, but not both.’’ (Emphasis omitted.) The

department asserted that, because Estrada had filed

grievances in connection with the adverse employment

actions that she claimed were acts of retaliation in her

whistleblower retaliation complaint, the office of public

hearings had no jurisdiction to hear the case. In addition, the department argued that Estrada’s claim did

not ‘‘qualify as a whistleblower retaliation claim under

the plain meaning of [§ 4-61dd]’’ and, therefore, the

action was ‘‘barred by sovereign immunity’’ and

‘‘beyond the jurisdiction of [the office of public hearings] . . . .’’

In her decision, the referee determined that the office

of public hearings had subject matter jurisdiction over

Estrada’s whistleblower retaliation complaint. The referee stated that, ‘‘[w]hen a defendant challenges a complaint on the ground that a plaintiff has elected an

exclusive remedy, the issue is properly raised by a special defense and not a motion to dismiss since [i]t is

both rational and fair to place the burden of pleading

and proving an election of remedies on the party

asserting the claim . . . .’’ (Internal quotation marks

omitted.) She concluded that the department’s ‘‘argument that this tribunal does not have jurisdiction and

violates sovereign immunity is without merit . . . .’’

The court disagreed with the referee’s conclusion

and determined that the office of public hearings lacked

subject matter jurisdiction to hear Estrada’s whistleblower retaliation case. The court discussed the three

grievances filed by Estrada and determined that her

whistleblower retaliation complaint challenged the

same personnel actions that were raised in her grievances. The court analyzed the relevant statute, § 4-61dd,

and concluded that, because ‘‘the statute clearly provides a mutually exclusive choice in this regard,

[Estrada] is precluded from relitigating the propriety

of the same personnel actions before the [referee]. The

statute offered [Estrada] a clear choice of either filing
grievances or bringing the instant [whistleblower retaliation] case to address the personnel actions, but not

both.’’

On appeal, the department argues that ‘‘[t]he fact that

Estrada filed grievances regarding the same adverse

personnel actions at issue in this case deprived [the

office of public hearings] of subject matter jurisdiction

because Estrada’s claim does not fall within the statute’s limited waiver of sovereign immunity.’’ We are not

persuaded by this contention and conclude that the

office of public hearings had subject matter jurisdiction

to adjudicate Estrada’s whistleblower retaliation claim

pursuant to § 4-61dd.

We begin our analysis by setting forth the legal principles relevant to our review of this claim. ‘‘The principle

that the state cannot be sued without its consent, or

sovereign immunity, is well established under our case

law. . . . [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to

rest . . . on the hazard that the subjection of the state

and federal governments to private litigation might constitute a serious interference with the performance of

their functions and with their control over their respective instrumentalities, funds, and property.’’ (Internal

quotation marks omitted.) Jezouit v. Malloy, 193 Conn.

App. 576, 584, 219 A.3d 933 (2019).

‘‘Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a

question of law over which we exercise de novo review.

. . . In so doing, we must decide whether [the trial

court’s] conclusions are legally and logically correct

and find support in the facts that appear in the record.’’

(Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342,

349, 977 A.2d 636 (2009).

‘‘[I]t is well established that, in determining whether

a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . Subject matter jurisdiction involves the authority of the

court to adjudicate the type of controversy presented

by the action before it. . . . The subject matter jurisdiction requirement may not be waived by any party,

and also may be raised by a party, or by the court sua

sponte, at any stage of the proceedings, including on

appeal.’’ (Internal quotation marks omitted.) Sousa v.

Sousa, 322 Conn. 757, 770, 143 A.3d 578 (2016).

Furthermore, ‘‘[s]ubject matter jurisdiction does not

rest on the viability of the claims that a court is asked

to adjudicate. Subject matter jurisdiction involves the

authority of a court to adjudicate the type of controversy presented by the action before it. . . . A court

does not truly lack subject matter jurisdiction if it has

competence to entertain the action before it. . . . Once

it is determined that a tribunal has authority or compe-
tence to decide the class of cases to which the action

belongs, the issue of subject matter jurisdiction is

resolved in favor of entertaining the action.’’ (Emphasis

in original; internal quotation marks omitted.) Olympus

Healthcare Group, Inc. v. Muller, 88 Conn. App. 296,

300, 870 A.2d 1091 (2005).

‘‘[T]he sovereign immunity enjoyed by the state is

not absolute. There are [three] exceptions: (1) when the

legislature, either expressly or by force of a necessary

implication, statutorily waives the state’s sovereign

immunity . . . (2) when an action seeks declaratory

or injunctive relief on the basis of a substantial claim

that the state or one of its officers has violated the

plaintiff’s constitutional rights . . . and (3) when an

action seeks declaratory or injunctive relief on the basis

of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority. . . . For a claim made pursuant to the

first exception, this court has recognized the well established principle that statutes in derogation of sovereign

immunity should be strictly construed. . . . Where

there is any doubt about their meaning or intent they

are given the effect which makes the least rather than

the most change in sovereign immunity. . . . In the

absence of a proper factual basis in the complaint to

support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity

grounds is proper.’’ (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v.

Dept. of Transportation, supra, 293 Conn. 349–50.

The department does not dispute that § 4-61dd contains a statutory waiver of sovereign immunity. Rather,

the department argues that, because Estrada filed grievances challenging the same adverse personnel actions

that form the basis of her whistleblower complaint,

her whistleblower retaliation action falls outside of the

waiver of sovereign immunity in § 4-61dd and, therefore, the office of public hearings lacks subject matter

jurisdiction to hear Estrada’s whistleblower claim. By

way of this argument, the department attempts to transform an election of remedies claim into an issue of

subject matter jurisdiction by implicating sovereign

immunity.

‘‘As a general rule, facts must be pleaded as a special

defense when they are consistent with the allegations

of the complaint but demonstrate, nonetheless, that the

plaintiff has no cause of action.’’ Mitchell v. Guardian

Systems, Inc., 72 Conn. App. 158, 166, 804 A.2d 1004,

cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). Our

courts previously have stated that an election of remedies claim is properly raised by a special defense rather

than as a challenge to the jurisdiction of the court.

In Grant v. Bassman, 221 Conn. 465, 470, 473, 604

A.2d 814 (1992), our Supreme Court held that the defendants’ claim that the plaintiffs had made an exclusive
election of workers’ compensation pursuant to General

Statutes § 31-284 (a)9 was not raised properly by a

motion to dismiss challenging the court’s subject matter

jurisdiction and should have been raised by a special

defense. In that case, a minor employee was injured

at work and applied for and began receiving workers’

compensation benefits for his injuries. Id., 468. Thereafter, the plaintiffs, the injured employee and his

mother, filed a personal injury action against the defendant employer and its president, seeking damages for

injuries sustained by the employee. Id., 466. The defendant employer moved to dismiss the plaintiffs’ complaint, arguing that the trial court lacked subject matter

jurisdiction because the employee had applied for and

received workers’ compensation benefits for those

injuries. Id. The court explained that ‘‘[t]he purpose of

a special defense is to plead facts that are consistent

with the allegations of the complaint but demonstrate,

nonetheless, that the plaintiff has no cause of action.

. . . The claim that a plaintiff has elected an exclusive

remedy relies on facts outside those alleged in the complaint that operate to negate what may once have been

a valid cause of action. . . . It is therefore both rational

and fair to place the burden of pleading and proving

an election of remedies on the party asserting the claim,

usually the defendant.’’ (Citations omitted.) Id., 472–73.

The court concluded that a special defense, and not a

motion to dismiss, was the proper procedural mechanism for the defendant employer’s challenge to the

plaintiffs’ complaint. Id., 473.

In making its determination, our Supreme Court in

Grant v. Bassman, supra, 221 Conn. 471–72, adopted

the reasoning of the court in Fusaro v. Chase Brass &

Copper Co., 21 Conn. Supp. 240, 242–44, 154 A.2d 138

(1956), in which the court discussed the appropriate

procedural mechanism for raising a claim that a plaintiff

has made an exclusive election of workers’ compensation. The court in Fusaro stated that the exclusivity

provision ‘‘is not at all a denial of jurisdiction in the

Superior Court, as such, but is basically a destruction

of an otherwise existent common-law right of action.

. . . The confusion, if there be any, arises from the fact

that the compensation procedure which is substituted

for the common-law right of action involves a special

tribunal, rather than the Superior Court. However, this

is a mere incident of the destruction of the commonlaw right of action. In other words, there is not a lack

of jurisdiction in the court but a want of a cause of

action in the plaintiff.’’ Id., 243.

In Commissioner of Mental Health & Addiction Services v. Saeedi, 143 Conn. App. 839, 71 A.3d 619 (2013),

the defendant filed a whistleblower retaliation complaint with the office of public hearings in which he

alleged that he had been subjected to retaliation for

making a whistleblower disclosure pursuant to § 4-

61dd. Id., 845. The plaintiffs filed an answer in which
they pleaded one special defense asserting that the

office of public hearings lacked subject matter jurisdiction because the defendant had failed to satisfy the

prerequisites for protection under § 4-61dd. Id. The

plaintiffs also filed a motion to dismiss in which they

alleged, inter alia, that the office of public hearings

did not have subject matter jurisdiction because the

defendant had filed grievances through his union and,

therefore, had elected to pursue his remedies though

his collective bargaining agreement. Id., 846. After the

referee found in favor of the defendant, the plaintiffs

appealed to the Superior Court and again argued, inter

alia, that the office of public hearings lacked subject

matter jurisdiction. Id., 855. The Superior Court upheld

the decision of the referee. Id. On appeal to this court,

the plaintiffs presented ‘‘the argument that [the defendant’s] use of the grievance process served to invalidate

[the defendant’s] claims because he chose to pursue

them through the forum provided by the collective bargaining agreement. The plaintiffs no longer claim[ed]

that this deprive[d] the referee of jurisdiction to decide

the matter. They claim[ed] that [the defendant’s] claims

should have been dismissed because § 4-61dd requires

the employee to elect an exclusive forum in which to

pursue these claims, and [the defendant] elected his

exclusive forum when his union filed its grievances.’’

(Footnote omitted; internal quotation marks omitted.)

Id., 855–56. This court declined to review the plaintiffs’

claim because it was raised for the first time on appeal.

Id., 857. The court stated, however, that ‘‘[t]he plaintiffs’

abandonment of their jurisdictional argument is unsurprising considering our Supreme Court’s holding in

Grant v. Bassman [supra, 221 Conn. 472].’’ Commissioner of Mental Health & Addiction Services v. Saeedi,

supra, 143 Conn. App. 856 n.16.

In the present case, the statute at issue, § 4-61dd,

provides two procedures to challenge an alleged retaliatory personnel action. First, an employee may ‘‘file a

complaint . . . with the Chief Human Rights Referee

. . . . The decision of a human rights referee under

this subsection may be appealed by any person who

was a party at such hearing, in accordance with the

provisions of section 4-183.’’ General Statutes § 4-61dd

(e) (2) (A). Second, ‘‘[a]s an alternative to the provisions

of subdivision (2) of this subsection: (A) A state or

quasi-public agency employee who alleges that a personnel action has been threatened or taken may file an

appeal . . . with the Employees’ Review Board under

section 5-202, or, in the case of a state or quasi-public

agency employee covered by a collective bargaining

contract, in accordance with the procedure provided by

such contract . . . .’’ General Statutes § 4-61dd (e) (3).

There is no dispute that § 4-61dd contains a waiver

of sovereign immunity and confers on the office of

public hearings the authority to adjudicate the type

of controversy presented in this case: a whistleblower
retaliation claim. The fact that the statute also provides

for an ‘‘alternative’’ avenue for a complainant to seek

redress for adverse personnel actions taken in retaliation for a whistleblower disclosure; General Statutes

§ 4-61dd (e) (3); does not deprive the office of public

hearings of subject matter jurisdiction to the claim.

Although the language used in § 4-61dd differs from

that used in § 31-284 and discussed in Grant v. Bassman, supra, 221 Conn. 471–73, in both circumstances,

the issue that arises is one regarding the election of

remedies. When a complainant elects to pursue one of

the avenues provided for in § 4-61dd and then subsequently proceeds to pursue the second avenue, the issue

concerns the complainant’s election of remedies, not

subject matter jurisdiction. Estrada’s complaint to the

office of public hearings, even if it is pursued after

the initial grievance process, does not create a lack of

subject matter jurisdiction. Instead, it may result in ‘‘ ‘a

want of a cause of action’ ’’; (emphasis omitted) id.,

472; which the department may challenge in a special

defense. See id., 471. Accordingly, we conclude that the

office of public hearings had subject matter jurisdiction

to adjudicate Estrada’s whistleblower retaliation claim.

II

We next address the commission’s contention that

the court erred when it concluded that Estrada did not

make a protected whistleblower disclosure pursuant

to § 4-61dd. The commission asserts, specifically, that

Estrada’s disclosure ‘‘fits within three of the enumerated categories [in § 4-61dd]: a violation of law, mismanagement, and a danger to public safety.’’ We conclude

that Estrada did not disclose a violation of law and,

therefore, did not make a protected whistleblower disclosure pursuant to § 4-61dd.10

The following additional facts and procedural history

are relevant to our resolution of this claim. In her decision, the referee stated that § 4-61dd ‘‘ ‘is a remedial

statute and is to be interpreted broadly to effectuate [its]

purpose.’ . . . By using such broadly defined words

as ‘abuse’ and ‘mismanagement,’ the legislature

intended to protect employees who disclose a wide

array of transgressions under . . . § 4-61dd.’’ (Citation

omitted.) In concluding that Estrada had made a protected disclosure under § 4-61dd, the referee stated that

Estrada ‘‘reported a violation of . . . § 19a-200, which

required a city health director possesses the required

degrees. General Statutes § 19a-2a11 confers broad powers to the [department] to administer all laws under the

jurisdiction of the [department], which includes oversight of compliance with . . . § 19a-200. The OLHA is

charged with reviewing resumes to determine if the

schools attended by the applicant were properly accredited; the OLHA is part of the [department]. This is clearly

reporting a violation of law under the jurisdiction of

the agency; and falls squarely within a qualifying disclo-
sure.’’ (Footnote added; footnotes omitted.)

On appeal, the court disagreed with the conclusions

of the referee. It concluded, inter alia, that Estrada’s

disclosure to Blaschinski was not a whistleblower disclosure under § 4-61dd. The court stated that ‘‘the disclosure does not reveal corruption, unethical practices,

violations of state law or regulations, mismanagement,

gross waste of funds, abuse of authority or danger to

public safety occurring in any state department or

agency or quasi-public agency as required by [the statute].’’ (Internal quotation marks omitted.) The court

further stated that the letter from the department

approving the city of Hartford’s appointment of Wang

as acting director was merely a mistake, as a result of

Wang’s misrepresentation and Estrada’s failure to verify

Wang’s qualifications. The court determined that there

was ‘‘no evidence that the commissioner, Blaschinski,

[Estrada], or any other personnel at [the department]

knew that the letter was mistaken at the time it was

sent. . . . [S]ending the letter did not violate any law,

nor did it represent corruption or unethical practices

on the part of [the department] or the commissioner.

. . . Further, the commissioner and [the department]

promptly addressed the mistake when they discovered it.’’

The court then analyzed the relevant statutes to determine if a violation of law had occurred. ‘‘It is true that

. . . § 19a-200 specifies the required qualifications of a

city director of health. It is also true that . . . § 19a2a confers broad authority upon the commissioner to

administer public health laws, which includes oversight

of compliance with § 19a-200. The disclosure, however,

as here, that an acting city health director was unknowingly, mistakenly appointed and approved does not create a violation of law, corruption, or unethical practice

at the [department] or by the commissioner [of the

department]. . . .

‘‘Two important points clearly arise from [§ 19a-200].

First, and most importantly, the commissioner [of the

department] had the absolute power to approve persons

for acting directors of health who he deems suitable.

It is undisputed that Wang was an acting director of

health. As such, the commissioner’s letter approving

Wang as an acting director of health broke no law. The

commissioner [of the department] had the ability to

deem Wang suitable and approve him. The specific [educational] qualifications for a permanent director of

health do not apply to an acting director of health.

Second, the obligation to appoint directors of health

that meet the applicable qualifications lies with the

appointing authority (i.e., the city), not the commissioner [of the department]. As such, even if the commissioner mistakenly approved a person without the necessary qualifications, he broke no law, but merely made

a mistake.’’ (Emphasis in original; footnotes omitted;
internal quotation marks omitted.)

We first set forth our standard of review and the legal

principles relevant to our resolution of this claim. We

review the trial court’s judgment pursuant to the Uniform Administrative Procedure Act, General Statutes

§ 4-166 et seq. ‘‘[I]t is [not] the function . . . of this

court to retry the case or to substitute its judgment for

that of the administrative agency.’’ (Internal quotation

marks omitted.) Valliere v. Commissioner of Social

Services, 328 Conn. 294, 308, 178 A.3d 346 (2018).

‘‘Judicial review of an administrative agency decision

requires a court to determine whether there is substantial evidence in the administrative record to support

the agency’s findings of basic fact and whether the

conclusions drawn from those facts are reasonable.

. . . An administrative finding is supported by substantial evidence if the record affords a substantial basis

of fact from which the fact in issue can be reasonably

inferred. . . . The substantial evidence rule imposes

an important limitation on the power of the courts to

overturn a decision of an administrative agency . . .

and . . . provide[s] a more restrictive standard of

review than standards embodying review of weight of

the evidence or clearly erroneous action. . . . [A]s to

questions of law, [t]he court’s ultimate duty is only to

decide whether, in light of the evidence, the [agency]

has acted unreasonably, arbitrarily, illegally, or in abuse

of its discretion. . . . Conclusions of law reached by

the administrative agency must stand if the court determines that they resulted from a correct application of

the law to the facts found and could reasonably and

logically follow from such facts.’’ (Citation omitted;

internal quotation marks omitted.) Blinkoff v. Commission on Human Rights & Opportunities, 129 Conn.

App. 714, 720–21, 20 A.3d 1272, cert. denied, 302 Conn.

922, 28 A.3d 341 (2011).

‘‘Cases that present pure questions of law, however,

invoke a broader standard of review than is . . .

involved in deciding whether, in light of the evidence,

the agency has acted unreasonably, arbitrarily, illegally

or in abuse of its discretion. . . . Furthermore, when

a state agency’s determination of a question of law has

not previously been subject to judicial scrutiny . . .

the agency is not entitled to special deference. . . .

We have determined, therefore, that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a

statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency’s timetested interpretation . . . . Even if time-tested, we will

defer to an agency’s interpretation of a statute only if

it is reasonable; that reasonableness is determined by

[application of] our established rules of statutory construction.’’ (Internal quotation marks omitted.) Valliere

v. Commissioner of Social Services, supra, 328 Conn.
308. In the present case, the parties do not claim that

the referee’s interpretation of the statute is time-tested

or has previously been subjected to judicial scrutiny.

The question before this court is whether Estrada’s

disclosure that the commissioner of the department

improperly designated Wang as acting director of health

for the city of Hartford constituted a protected disclosure under § 4-61dd. Section § 4-61dd (a) provides in

relevant part: ‘‘Any person having knowledge of any

matter involving . . . corruption, unethical practices,

violation of state laws or regulations, mismanagement,

gross waste of funds, abuse of authority or danger to

the public safety occurring in any state department or

agency, [or] any quasi-public agency . . . may transmit

all facts and information in such person’s possession

concerning such matter to the Auditors of Public

Accounts. . . .’’ (Emphasis added.)

The statute further provides in relevant part: ‘‘No

state officer or employee . . . shall take or threaten

to take any personnel action against any state or quasipublic agency employee . . . in retaliation for (A) such

employee’s . . . disclosure of information to (i) an

employee of the Auditors of Public Accounts . . . [or]

(ii) an employee of the state agency or quasi-public

agency where such officer or employee is employed

. . . .’’ General Statutes § 4-61dd (e) (1). The commission contends that Estrada’s reporting to Blaschinski

that Wang did not hold a master’s degree constituted

a disclosure of a violation of § 19a-200 and, therefore,

is a protected whistleblower disclosure under § 4-61dd.

Specifically, the commission argues that § 19a-200

requires all directors, whether permanent or acting,

either to be a licensed physician with a degree in public

health or to hold a graduate degree in public health and

that, regardless of the qualifications set forth in the

statute, Wang was not ‘‘ ‘suitable’ ’’ for the position of

acting director of health. Therefore, we must determine

whether Estrada’s disclosure constitutes a disclosure

of a ‘‘violation of state laws’’ as used in § 4-61dd. We

conclude that it does not.

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent

of the legislature. . . . In seeking to determine that

meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship

to other statutes. If, after examining such text and considering such relationship, the meaning of such text is

plain and unambiguous and does not yield absurd or

unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test

to determine ambiguity is whether the statute, when

read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter . . . .’’ (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining

Board v. Freedom of Information Commission, 310

Conn. 276, 283, 77 A.3d 121 (2013). We iterate that,

because the referee’s interpretation of the statute ‘‘has

not been ‘subjected to judicial scrutiny or consistently

applied by the agency over a long period of time,’ our

review is de novo.’’ Id.; see also Valliere v. Commissioner of Social Services, supra, 328 Conn. 309 (‘‘no

special deference is required because there is no claim

that the department’s construction of the applicable

statutes is time-tested, or has previously been subject

to judicial scrutiny’’).

The parties dispute whether § 19a-200 requires that

an acting director of health possess the qualifications

set forth in § 19a-200 (a) and, consequently, whether

Estrada’s report that Wang did not possess a master’s

degree in public health disclosed a violation of state

law and, thus, was a protected disclosure under § 4-

61dd. We conclude that the statutory qualifications set

forth in § 19a-200 do not apply to a person designated

to serve as an acting director of health. Estrada, therefore, did not disclose a violation of § 19a-200 and, consequently, did not make a protected disclosure under

§ 4-61dd.

Section 19a-200 (a) provides in relevant part: ‘‘[A]ny

person nominated to be a director of health shall (1)

be a licensed physician and hold a degree in public

health . . . or (2) hold a graduate degree in public

health . . . .’’ General Statutes (Rev. to 2015) § 19a-200

(a). It further provides that, in the absence or inability

to act of a director of health or if a vacancy exists, the

appointing local authority, with approval of the commissioner of the department, may ‘‘designate in writing a

suitable person to serve as acting director of health

. . . .’’ (Emphasis added.) General Statutes (Rev. to

2015) § 19a-200 (a). The statute makes a distinction

between qualifications required for a director of health,

who must either be a licensed physician and hold a

degree in public health or hold a graduate degree in

public health, and those for an acting director of health,

stating that an acting director of health need only be

suitable. See General Statutes (Rev. to 2015) § 19a200 (a).

In construing the statute, the commission’s argument

that the qualifications set forth in § 19a-200 (a) for a

director of public health also apply to an acting director

of public health is belied by the plain language of the

statute. When subsection (a) is read as a whole, it is

apparent that the legislature did not intend for the qualifications set forth in § 19a-200 (a) to apply to an acting

director of health. It is significant that the legislature
stated that a director of health must possess certain

educational qualifications but used the phrase ‘‘suitable

person’’ when discussing the designation of an acting

director of health. See Stone v. East Coast Swappers,

LLC, 337 Conn. 589, 602, 255 A.3d 851 (2020) (‘‘[t]he

use of the different terms . . . within the same statute

suggests that the legislature acted with complete awareness of their different meanings . . . and that it

intended the terms to have different meanings’’ (internal

quotation marks omitted)). The legislature’s inclusion

of qualifications for those nominated as a director of

health, while stating that an individual designated for

acting director should be ‘‘suitable,’’ indicates its decision that the qualifications required for a director of

health not apply to an acting director of health. Because

our objective is to ascertain and give effect to the apparent intent of the legislature, ‘‘we cannot accomplish a

result that is contrary to the intent of the legislature as

expressed in the [statute’s] plain language. . . . The

intent of the legislature, as [the] court has repeatedly

observed, is to be found not in what the legislature

meant to say, but in the meaning of what it did say.’’

(Footnote omitted; internal quotation marks omitted.)

Vincent v. New Haven, 285 Conn. 778, 792, 941 A.2d

932 (2008).

We conclude that no violation of § 19a-200 occurred,

and, therefore, it follows that Estrada did not disclose

a violation of law. We conclude that her report to

Blaschinski is not a protected disclosure under § 4-

61dd.12 Thus, we agree with the court that Estrada is

not entitled to protection under § 4-61dd on these facts

and circumstances.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Hereinafter, unless otherwise indicated, all references to § 19a-200 in

this opinion are to the 2015 revision of the statute.

2 General Statutes (Rev. to 2015) § 19a-200 (a) sets forth the process for

nominating a director of a municipal health department and provides in

relevant part: ‘‘The mayor of each city, the warden of each borough, and

the chief executive officer of each town shall . . . nominate some person

to be director of health for such city, town or borough . . . .’’

3 At the time of the hearing in front of the referee, Blaschinski held the

position of chief operating officer of the department. She supervised Estrada

beginning in 2011.

4 The letter, signed by the commissioner of the department, stated in

relevant part: ‘‘We have reviewed . . . Wang’s credentials and find them

appropriate for the position. Therefore, pursuant to Section 19a-200 of the

Connecticut General Statutes, you may appoint . . . Wang as the Acting/

Interim Director of Health for the City of Hartford . . . .’’

5 There are no facts in the record to indicate that Wang received a master’s

degree in public health from any other institution.

6

In order for Estrada to establish a prima facie case of whistleblower

retaliation, three elements must be shown: (1) Estrada must have engaged

in a protected activity as defined by the statute; (2) Estrada must have

incurred or been threatened with an adverse personnel action; and (3) there

must be a causal connection between the actual or threatened personnel

action and the protected activity. See General Statutes § 4-61dd; Kisala v.

Malecky, Superior Court, judicial district of New Britain, Docket No. CV13-5015760-S (October 7, 2013) (56 Conn. L. Rptr. 902, 905); see generally

Commissioner of Mental Health & Addiction Services v. Saeedi, 143 Conn.

App. 839, 841–42 n.1, 71 A.3d 619 (2013); Eagen v. Commission on Human
Rights & Opportunities, 135 Conn. App. 563, 565–66 n.1, 42 A.3d 478 (2012).

7 Because we agree with the court that Estrada did not prove that she

was engaged in any protected whistleblower activity, we need not address

the commission’s remaining claims of whistleblower retaliation.

8 The remaining four special defenses are not relevant to this claim.

9 General Statutes § 31-284 (a) provides: ‘‘An employer who complies with

the requirements of subsection (b) of this section shall not be liable for any

action for damages on account of personal injury sustained by an employee

arising out of and in the course of his employment or on account of death

resulting from personal injury so sustained, but an employer shall secure

compensation for his employees as provided under this chapter, except that

compensation shall not be paid when the personal injury had been caused

by the wilful and serious misconduct of the injured employee or by his

intoxication. All rights and claims between an employer who complies with

the requirements of subsection (b) of this section and employees, or any

representatives or dependents of such employees, arising out of personal

injury or death sustained in the course of employment are abolished other

than rights and claims given by this chapter, provided nothing in this section

shall prohibit any employee from securing, by agreement with his employer,

additional compensation from his employer for the injury or from enforcing

any agreement for additional compensation.’’

10 The commission claims that Estrada’s disclosure to Blaschinski fits

within two other enumerated categories under § 4-61dd: mismanagement

and a danger to public safety. The commission raises these arguments,

however, for the first time on appeal. ‘‘We adhere to the well settled principle

that [t]his court will not review issues of law that are raised for the first

time on appeal. . . . We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the

record that the question was distinctly raised at trial and was ruled upon and

decided by the court adversely to the appellant’s claim.’’ (Internal quotation

marks omitted.) Rosa v. Lawrence & Memorial Hospital, 145 Conn. App.

275, 309, 74 A.3d 534 (2013). ‘‘[A] party cannot present a case to the trial

court on one theory and then seek appellate relief on a different one . . . .’’

(Internal quotation marks omitted.) U.S. Bank National Assn. v. Eichten,

184 Conn. App. 727, 756, 196 A.3d 328 (2018). These arguments were neither

raised by the defendants at the administrative hearing or in the trial court

nor decided by the referee or the court. Therefore, we decline to review

the commission’s claims that Estrada’s report to Blaschinski was a disclosure

of mismanagement or a danger to public safety pursuant to § 4-61dd.

11 General Statutes § 19a-2a provides in relevant part: ‘‘The Commissioner

of [the department] shall employ the most efficient and practical means for

the prevention and suppression of disease and shall administer all laws

under the jurisdiction of the [department] and the Public Health Code. . . .’’

12 Moreover, this is not the type of disclosure intended to be protected

under § 4-61dd. The court concluded that the letter signed by the commissioner of the department approving Wang as acting director of health was

prepared and executed without knowledge that the information in Wang’s

resume was incorrect and that Wang did not actually possess a master’s

degree in public health. Therefore, the approval was merely a mistake.

Furthermore, the court stated that Estrada ‘‘bore substantial responsibility

for the mistake’’ because she drafted the letter with an understanding of

the purpose of the letter and knowing that the letter would be signed by

the commissioner of the department. The court determined that, ‘‘[a]lthough

the letter was mistaken, sending the letter did not violate any law, nor did

it represent corruption or unethical practices on the part of [the department]

or the commissioner [of the department]. . . . Further, the commissioner

[of the department] and [the department] promptly addressed the mistake

when they discovered it.’’ We agree with the court’s analysis. Therefore,

even assuming, arguendo, that § 19a-200 (a) requires that an acting director

of health possess the qualifications that apply to permanent directors of

health, Estrada did not disclose a violation of law but merely disclosed the

fact that the department was mistaken in believing that Wang held a master’s

degree in public health, a mistake that was ‘‘induced by the false resume

of Wang . . . .’’ We conclude that a mistake such as this one is not the

type of disclosure the legislature intended to protect under the statute.