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TODD GAGLIARDI v. COMMISSIONER OF CHILDREN

AND FAMILIES

(AC 36421)

Keller, Mullins and Bear, Js.

Submitted on briefs January 9—officially released March 3, 2015

(Appeal from Superior Court, judicial district of New

Britain, Prescott, J.)

William B. Westcott filed a brief for the appellant

(plaintiff).

George Jepsen, attorney general, and John E. Tucker

and Benjamin Zivyon, assistant attorneys general, filed
a brief for the appellee (defendant).
Opinion

KELLER, J. The plaintiff, Todd Gagliardi, appeals

from the judgment rendered by the trial court dismissing his appeal from an administrative decision of the

Commissioner of the Department of Children and Families (commissioner) that substantiated claims of child

sexual abuse committed by the plaintiff against G.M.,1

and placed the plaintiff’s name on the commissioner’s

child abuse and neglect central registry (registry). On

appeal, the plaintiff claims that the court erred in dismissing his appeal from that administrative decision by

erroneously concluding that an exhibit containing text

messages admitted during the plaintiff’s substantiation

hearing was sufficiently authenticated. We affirm the

judgment of the court.

The following facts, as set forth by the trial court,

and procedural history are relevant here. ‘‘In May 2012,

G.M. was a sixteen year old junior at Branford High

School. The plaintiff . . . was a teacher at Branford

High School, and had been G.M.’s Spanish teacher during her freshman year. Between May 26 and May 31,

2012, the plaintiff exchanged text messages of an

increasingly sexual nature with G.M. The text messages

include graphic descriptions of various sexual acts that

G.M. and the plaintiff [purportedly] wanted to perform

on each other and of sexual activities that they had

engaged in with others. The plaintiff and G.M. did not

have any physical contact during this weeklong period.

‘‘G.M.’s mother ‘periodically pulls’ her daughter’s cell

phone records. On May 31, 2012, G.M.’s mother obtained

[G.M.’s] text message history from her cell phone provider and discovered the texts between G.M. and the

plaintiff. G.M.’s mother reported the texts to the school

and provided copies of the transcribed messages to the

Branford Police Department. The police then provided

a copy of the transcript to [an investigator working

for the commissioner, Shanelle] Ingram. G.M. admitted

sending text messages to the plaintiff. [The commissioner] and the Branford Police Department completed

a joint investigation, but criminal charges against the

plaintiff were not filed because G.M.’s mother did not

want to press charges, no physical contact had

occurred, and the plaintiff had resigned from his teaching position.

‘‘In July 2012, the plaintiff received notice that the

[commissioner] had completed [the] investigation and

had substantiated the allegations against him. The

notice further informed the plaintiff that [the commissioner] deemed him a risk to the safety of children, and

recommended that his name be placed on the [registry].2

The plaintiff requested additional review of the findings

in accordance with General Statutes § 17a-101k (b)

and (c).

‘‘On August 27, 2012, [the commissioner] notified the
plaintiff that [she] had conducted an internalreview and

had chosen to uphold [her] findings. At the plaintiff’s

request, [the commissioner] then held a substantiation

hearing on November 29, 2012. Although he was represented by counsel at the hearing, the plaintiff decided

not to personally attend. At the hearing, a transcript of

text messages that were sent by the plaintiff and G.M.

to each other was admitted into evidence. The hearing

officer, by relying on the content of the text messages

themselves and other evidence in the record, concluded

that the text messages were sufficiently authenticated

and admitted them into evidence.

‘‘[The commissioner] issued a final written decision

on January 18, 2013, upholding the substantiation of

sexual abuse and the plaintiff’s placement on the [registry]. The [hearing officer’s] decision was based primarily on the sexual content of the text messages, which

were furnished by G.M.’s mother, who obtained them

from [the cell] phone company. The [hearing officer]

reasoned that ‘[t]he content of the text messages

between the [plaintiff] and [G.M.] supports the [commissioner’s] finding that the [plaintiff] sexually exploited

her through grooming behavior designed to result in

more intimate sexual conduct.’ ’’ (Footnotes altered.)

Pursuant to General Statutes § 4-183,3

the plaintiff

appealed from the commissioner’s administrative decision to the trial court on the basis of his claim that the

text messages at issue were improperly admitted as

evidence before the hearing officer because they were

not sufficiently authenticated to prove that he had

authored them.

The court dismissed the plaintiff’s appeal. At the outset, the court emphasized that administrative tribunals

are not bound by the Connecticut Code of Evidence and

may consider hearsay in determining the authenticity of

exhibits that would be inadmissible under the rules of

evidence so long as the exhibits are ‘‘reliable, probative,

material, and not unduly repetitious.’’ The court

acknowledged that the text messages were authenticated primarily on the basis of their content, which

contained multiple layers of hearsay. Despite this, the

court found that the text messages were trustworthy

and reliable for three reasons. First, the court rejected

the notion that the lengthy chain of custody of the text

message records rendered them untrustworthy.

According to the court, the text message records were

transferred from (1) the company providing G.M.’s cell

phone service to (2) G.M.’s mother, who transferred

them to (3) the police, who transferred them to (4) the

commissioner. The court found that the plaintiff had

not alleged that any of the foregoing parties altered the

records or had a motive to do so. Therefore, the court

refused to conclude that the lengthy chain of custody of

the records, without more, undermined their reliability.

Second, the court agreed with the hearing officer’s
finding that the record contained no evidence suggesting that G.M. had any reason to fabricate the allegations raised against the plaintiff. The court noted that

G.M. admitted to the exchange of text messages

between herself and the plaintiff only after her mother

discovered the text messages. Further,the court emphasized the hearing officer’s finding that there was no

evidence presented suggesting that G.M.’s mental state

was impaired or impacted the reliability of the statements concerning the text messages that she provided

to Ingram during Ingram’s investigation.

Third, the court found that the content of the text

messages was sufficient to authenticate the plaintiff as

their author. The court noted that text messages may

be authenticated by circumstantial evidence of ‘‘ ‘distinctive characteristics’ ’’ within the text messages that

identify the author. The court listed the following ‘‘ ‘distinctive characteristics’ ’’ contained in the text messages that sufficiently authenticated the identity of the

author of the text messages as the plaintiff: (1) the

sender identified himself as a Spanish teacher at G.M.’s

school;(2)the messages contained flirting and repeated

warnings about the need for secrecy, ‘‘exactly what one

would expect from a teacher attempting to establish a

sexual relationship with a student’’; and (3) many of

the text messages focused on various articles of clothing that the plaintiff and G.M. wore at school.

In addition, the court rejected the plaintiff’s claims

that (1) someone pretending to be the plaintiff sent the

text messages, (2) there was no evidence connecting

the plaintiff’s cell phone account with the cell phone

number that sent the text messages to G.M., and (3)

there was no corroborating evidence of an inappropriate relationship between the plaintiff and G.M. The

court found that the plaintiff failed to introduce any

evidence in support of the first two claims. Moreover,

the court stated that, in any event, the commissioner

did not have the burden at the substantiation hearing to

rule out every possible inconsistency with authenticity.

Lastly, the court found that the plaintiff had conceded

that, if the text messages were properly authenticated

and admitted, then the hearing officer had substantial

evidence to support her decision.

For the foregoing reasons, the court concluded that

the hearing officer did not abuse her discretion by

admitting the text messages into evidence and dismissed the plaintiff’s appeal. This appeal followed.

The plaintiff claims that the court erred in dismissing

his appeal from that administrative decision because

the court erroneously concluded that the hearing officer

did not abuse her discretion by admitting into evidence

the text messages at issue in this appeal. Specifically,

the plaintiff claims that the text messages were not

properly authenticated to prove that he was their

author. We disagree.
We begin by setting forth the relevant standard of

review and applicable law. ‘‘We review the issues raised

by the plaintiff in accordance with the limited scope of

judicial review afforded by the [Uniform Administrative

Procedure Act (UAPA), General Statutes § 4-166 et

seq.]4

. . . . 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. . . . Our ultimate duty is to determine,

in view of all of the evidence, whether the agency, in

issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.’’ (Footnote added;

internal quotation marks omitted.) Family Garage, Inc.

v. Commissioner of Motor Vehicles, 130 Conn. App.

353, 357, 23 A.3d 752, cert. denied, 302 Conn. 931, 28

A.3d 345 (2011). ‘‘[T]he plaintiff bears the burden of

demonstrating that a hearing officer’s evidentiary ruling

is arbitrary, illegal or an abuse of discretion.’’ (Internal

quotation marks omitted.) Lucarelli v. Freedom of

Information Commission, 135 Conn. App. 807, 817, 43

A.3d 237 (2012).

‘‘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. . . . [I]t is something less than the weight of the evidence, and the

possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative

agency’s finding from being supported by substantial

evidence. . . .

‘‘[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 ofthe law to the facts found and could reasonably

and logically follow from such facts.’’ (Internal quotation marks omitted). Family Garage, Inc. v. Commissioner of Motor Vehicles, supra, 130 Conn. App. 357–58.

‘‘Authentication is . . . a necessary preliminary to

the introduction of most writings in evidence . . . .’’

(Internal quotation marks omitted.) Nash v. Stevens,

144 Conn. App. 1, 39, 71 A.3d 635, cert. denied, 310

Conn. 915, 76 A.3d 628 (2013). ‘‘The requirement of

authentication as a condition precedent to admissibility

is satisfied by evidence sufficient to support a finding

that the offered evidence is what its proponent claims
it to be. . . . In general, a writing may be authenticated

by a number of methods, including direct testimony or

circumstantial evidence. . . . Both courts and commentators have noted that the showing of authenticity

is not on a par with the more technical evidentiary rules

that govern admissibility, such as hearsay exceptions,

competency and privilege. . . . Rather, there need

only be a prima facie showing of authenticity to the

court. . . . Once a prima facie showing of authorship

is made to the court, the evidence, as long as it is

otherwise admissible, goes to the [finder of fact], which

ultimately will determine its authenticity.’’ (Citation

omitted; internal quotation marks omitted.) Id., 38–39.

‘‘[T]he barfor authentication of evidence is not particularly high. . . . [T]he proponent need not rule out all

possibilities inconsistent with authenticity, or . . .

prove beyond any doubt that the evidence is what it

purports to be . . . .’’ (Citation omitted; internal quotation marks omitted.) United States v. Vayner, 769 F.3d

125, 130 (2d Cir. 2014).5

In addition, ‘‘[a]n electronic

document may . . . be authenticated by traditional

means such as direct testimony of the purported author

or circumstantial evidence of ‘distinctive characteristics’ in the document that identify the author.’’ State v.

Eleck, 130 Conn. App. 632, 640, 23 A.3d 818 (2011), aff’d,

314 Conn. 123, 100 A.3d 817 (2014).

Furthermore, this court need not consider whether

the text messages were authenticated and admitted in

accordance with the Connecticut Code of Evidence. It is

axiomatic that ‘‘administrative tribunals are not strictly

bound by the rules of evidence . . . . [T]hey may consider exhibits [that] would normally be incompetent in

a judicial proceeding, so long as the evidence is reliable

and probative.’’ (Internal quotation marks omitted.)

F.M. v. Commissioner of Children & Families, 143

Conn. App. 454, 477, 72 A.3d 1095 (2013). According to

General Statutes § 4-178, in a contested case before an

agency, ‘‘[a]ny oral or documentary evidence may be

received, but the agency shall, as a matter of policy,

provide for the exclusion of irrelevant, immaterial or

unduly repetitious evidence . . . .’’ See also Regs.,

Conn. State Agencies § 17a-101k-8 (g).

‘‘Moreover, hearsay evidence is not prohibited in

administrative proceedings . . . . Hearsay testimony

generally is admissible in administrative hearings as

long as it is sufficiently trustworthy.’’ (Citation omitted;

internal quotation marks omitted.) F.M. v. Commissioner of Children & Families, supra, 143 Conn.

App. 477.

On appeal, the plaintiff asserts that the text messages

admitted into evidence during the substantiation hearing were not properly authenticated.6 According to the

plaintiff, the trial court’s focus on the chain of custody

of the text message records and G.M.’s alleged lack

of motivation to fabricate the allegations against the
plaintiff was misplaced because the foregoing factors

have no bearing on whether the plaintiff authored the

text messages to G.M. Furthermore, the plaintiff claims

that the content of the text messages alone, without

corroboration, was insufficient to prove that he

authored them. The plaintiff also claims that the multiple layers of hearsay contained within the text messages

rendered them untrustworthy.

After a careful review of the record, we agree with

the court and conclude that the text messages were

sufficiently authenticated to identify the plaintiff as

their author. The court correctly found that there was

no evidence of tampering in the chain of custody of the

text message records, which bolsters the reliability of

the records. Furthermore, the court correctly found

that there was no evidence indicating that G.M. fabricated the allegations against the plaintiff, which further

buttresses the reliability of the records.

The plaintiff’s chief assertion is that the content of

the text messages did not establish that he authored

them. Although the plaintiff concedes that, on the basis

of the content of the text messages and the time period

within which they were exchanged, he fell within the

category of individuals who may have authored them,

he claims that the evidence failed to prove affirmatively

that he was their author. The plaintiff argues that there

was no evidence that there was any inappropriate physical contact between the plaintiff and G.M., or that the

plaintiff had a cell phone account associated with the

cell phone number from which G.M. received the text

messages. The plaintiff claims that, without such corroborating evidence, the text messages, taken alone,

did not sufficiently establish that he authored them.

We disagree.

As we previously explained in this opinion, the bar

for a finding of authenticity is not high. United States v.

Vayner, supra, 769 F.3d 130. A party proffering evidence

does not have the burden to disprove all possible inconsistencies with authenticity, or prove beyond all doubt

that the text messages are what the party purports them

to be. Id. All that is required is a prima facie showing

of authenticity. Nash v. Stevens, supra, 144 Conn. App.

39. This may be illustrated through circumstantial evidence drawn from the content of the text messages

alone, without additional evidence. See State v. Eleck,

supra, 130 Conn. App. 642–44 (noting that cases establishing authorship of messages based on their content

focus on particularly distinctive identifying characteristics of messages and often, but not always, corroborating evidence).

Here, the contents of the text messages established

a prima facie showing that the plaintiff authored them.

As the trial court correctly found, the text messages

contained distinctive characteristics sufficient to

authenticate the identity of the author as the plaintiff.
The exhibit containing the text message records

spanned forty two pages and included numerous,

detailed conversations. Cf. State v. Eleck, supra, 130

Conn. App. 642 (contents of single electronic message

vaguely referencing history between parties insufficient

to prove authorship). In the text messages sent to G.M.,

the author provided the following information: he identified himself as a teacher at G.M.’s school; he noted

detailed physical characteristics of G.M. and also complimented G.M. on her appearance at school on certain

days; he repeatedly asked G.M. to delete the text messages and expressed concern about losing his job if a

third party discovered the text messages; he referenced

sending text messages to another female student at the

school; he mentioned seeing G.M. at her high school’s

junior prom and specifically stated that G.M. did not

speak to him at the prom, a fact G.M. confirmed in a

subsequent text message; he noted that G.M.’s sister

oftentimes looked at him at school, a fact G.M. confirmed in a subsequent text message; he mentioned

seeing G.M.’s mother at a parent teacher conference

and noted similarities between G.M. and her mother;

he asked G.M. whether she believed that a female student she knew disliked him as a result of the attention

he gave to G.M.; he listed the names of a few female

students at the school whom he considered attractive;

he discussed interactions he had with teachers he knew

in the school; he mentioned seeing G.M. during lunch

breaks at the school; he described having a ‘‘special’’

relationship with G.M. ‘‘since the beginning,’’ a statement G.M. agreed with in a subsequent text; he noted

giving G.M. a ‘‘high five’’ at school, a fact G.M. confirmed

in a subsequent text; and he mentioned observing at

one point G.M. speaking with another student at school,

a fact G.M. confirmed in a subsequent text. The foregoing details contained in the text messages provided the

hearing officer with sufficient evidence to find that the

plaintiff authored the text messages sent to G.M. The

lack of corroborating evidence, such as evidence of

other interactions between the plaintiff and G.M. or

phone records linking the plaintiff to the cell phone

number that sent the text messages to G.M., did not

diminish the probative value of the text message

records.

The plaintiff further claims that the text messages

were unreliable because they contained layers of hearsay and,therefore,the hearing officer abused her discretion by primarily relying on them to find that the plaintiff

had authored the text messages. We disagree. Evidence

containing hearsay may be admitted during administrative hearings so long as it is sufficiently trustworthy.

F.M. v. Commissioner of Children & Families, supra,

143 Conn. App. 477. The record contains no evidence

indicating that the text messages are untrustworthy. As

we previously mentioned, the chain of custody did not

indicate any evidence of alterations to the text mes-
sages, and there was no evidence indicating that G.M.

had any motive to fabricate the allegations against the

plaintiff. Therefore, the hearing officer did not abuse

her discretion by admitting the exhibit containing the

text messages because the mere fact that the text messages contained hearsay did not render them untrustworthy.

For the foregoing reasons, we agree with the court

and conclude that the hearing officer had substantial

evidence indicating that the plaintiff authored the text

messages sent to G.M. Despite the fact that the text

messages contained hearsay, the hearing officer did not

act unreasonably, arbitrarily, illegally, or in abuse of

her discretion in admitting into evidence the exhibit

containing the text messages.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

2 General Statutes § 17a-101k (a) provides in relevant part: ‘‘The Commissioner of Children and Families shall maintain a registry of the commissioner’s findings of abuse or neglect of children pursuant to section 17a-101g

. . . . The regulations . . . shall provide for the use of the registry on a

twenty-four-hour daily basis to prevent or discover abuse of children and

the establishment of a hearing process for any appeal by a person of the

commissioner’s determination that such person is responsible for the abuse

or neglect of a child pursuant to subsection (b) of section 17a-101g. The

information contained in the registry and any other information relative to

child abuse, wherever located, shall be confidential, subject to such statutes

and regulations governing their use and access as shall conform to the

requirements of federal law or regulations. . . .’’

General Statutes § 17a-101g provides in relevant part: ‘‘(b) . . . After an

investigation into a report of abuse or neglect has been completed, the

commissioner shall determine, based upon a standard of reasonable cause,

whether a child has been abused or neglected, as defined in section 46b120. If the commissioner determines that abuse or neglect has occurred,

the commissioner shall also determine whether: (1) There is an identifiable

person responsible for such abuse or neglect; and (2) such identifiable

person poses a risk to the health, safety or well-being of children and should

be recommended by the commissioner for placement on the child abuse

and neglect registry established pursuant to section 17a-101k. If the commissioner has made the determinations in subdivisions (1) and (2) of this

subsection, the commissioner shall issue notice of a recommended finding

to the person suspected to be responsible for such abuse or neglect in

accordance with section 17a-101k.

‘‘(c) Except as provided in subsection (d) of this section, no entry of the

recommended finding shall be made on the child abuse or neglect registry

and no information concerning the finding shall be disclosed by the commissioner pursuant to a check of the child abuse or neglect registry . . . until

the exhaustion or waiver of all administrative appeals available to the person

suspected to be responsible for the abuse or neglect, as provided in section

17a-101k. . . .’’

3 General Statutes § 4-183 (a) provides: ‘‘A person who has exhausted all

administrative remedies available within the agency and who is aggrieved

by a final decision may appeal to the Superior Court as provided in this

section. The filing of a petition for reconsideration is not a prerequisite to

the filing of such an appeal.’’

4 General Statutes § 4-183 (j) provides in relevant part: ‘‘The court shall

not substitute its judgment for that of the agency as to the weight of the

evidence on questions of fact. The court shall affirm the decision of the

agency unless the court finds that substantial rights of the person appealing

have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory

provisions; (2) in excess of the statutory authority of the agency; (3) made
upon unlawful procedure; (4) affected by other error of law; (5) clearly

erroneous in view of the reliable, probative, and substantial evidence on

the whole record; or (6) arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of discretion. . . .’’

5 Vayner concerns rule 901 of the Federal Rules of Evidence, which is

similar § 9-1 of the Connecticut Code of Evidence regarding the requirement

of authentication.

6

In his appellate brief, in the context of his analysis of the authentication

issue, the plaintiff broadly claims that a procedural due process violation

occurred on the basis of his alleged failure to have a sufficient opportunity

to conduct cross-examination regarding the foundation and origin of the

text messages. The commissioner argues that, to the extent the plaintiff

raises this claim, he inadequately briefed it. We conclude that his summary

treatment of this claim is inadequate. See Practice Book § 67-4 (a) and (d).

Thus, we agree with the commissioner and decline to review this claim.

See Clelford v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998 (2014) (‘‘[i]t is

well settled that [w]e are not required to review claims that are inadequately

briefed’’ [internal quotation marks omitted]).