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GOULD v. FREEDOM OF INFORMATION COMMISSION—SECOND

DISSENT

ESPINOSA, J., with whom McDONALD, J., joins, and

DiPENTIMA, J., joins in part, dissenting. The present

appeal requires this court to resolve an issue that we

left open in Glastonbury Education Assn. v. Freedom

of Information Commission, 234 Conn. 704, 663 A.2d

349 (1995), namely, whether the evidentiary portions

of last best offer arbitration hearings under the Teacher

Negotiation Act (TNA); General Statutes § 10-153a et

seq.; constitute meetings by a public agency that are

subject to the requirements of the Freedom of Information Act (FOIA), General Statutes (Supp. 2014) § 1-200

et seq. I disagree with the majority’s conclusion that

the TNA arbitration panel in the present case does not

constitute a public agency, or the functional equivalent

of one, for purposes of the FOIA. Moreover, because I

conclude that such arbitration panels are public agencies, and, even if they are not public agencies, they are

certainly their functional equivalent, I reach the second

issue presented in this appeal, and conclude that the

evidentiary portions of last best offer arbitration hearings before such panels constitute meetings for purposes of the FOIA. I would therefore affirm the

judgment of the trial court dismissing the appeal of the

plaintiff, Martin A. Gould, from the final decision of the

named defendant, the Freedom of Information Commission (commission). Accordingly, I respectfully dissent.

I

THE ARBITRATION PANEL IS A PUBLIC AGENCY

I agree with the majority that the proper inquiry in

resolving the question of whether a TNA arbitration

panel is a public agency begins with our decision in

Elections Review Committee of the Eighth Utilities

District v. Freedom of Information Commission, 219

Conn. 685, 687, 595 A.2d 313 (1991), in which we interpreted the definition of ‘‘ ‘[p]ublic agency’ ’’ in General

Statutes § 1-18a (a), now General Statutes (Supp. 2014)

§ 1-200 (1) (A),1

to include subunits of a public agency.2

For two reasons, however, I disagree with the majority

that TNA arbitration panels are not public agencies

for purposes of the FOIA. First, the plain language of

General Statutes § 10-153f provides that TNA arbitration panels are indeed subunits of the Department of

Education (department). Second, even assuming that

the statutory language is ambiguous, the legislative history of § 10-153f, as well as the public policy principles

underlying both the FOIA and the TNA, clarify that the

legislature intended that the arbitration panel created

by § 10-153f, as well as the resulting individual TNA

arbitration panels, be subunits of the department.3

I will

discuss each of these two bases for my disagreement

with the majority in turn.
Preliminarily, I observe that the status of the individual, three member TNA arbitration panels is inextricably intertwined with that ofthe arbitration panel created

by § 10-153f (a), which has the sole function of serving

as a ‘‘pool’’ from which the individual panels are created. Without the pool, there would be no individual

panels, and without the individual panels, the pool

would serve no active function. In order, therefore, to

resolve the question of whether the individual panels

are public agencies, one must examine both the pool

and the individual panels as they function together. In

this dissent, I will refer to the larger arbitration panel

as the arbitration panel pool, and to the smaller panels

as TNA arbitration panels.

A

‘‘Because the question is one of statutory construction, we afford plenary review, guided by well established principles regarding legislative intent.’’ Ethics

Commission v. Freedom of Information Commission,

302 Conn. 1, 8, 23 A.3d 1211 (2011). It is well established

that we interpret FOIA provisions in light of ‘‘[t]he overarching legislative policy of the FOIA . . . [which]

favors the open conduct of government and free public

access to government records.’’ (Internal quotation

marks omitted.) Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn.

712. Keeping that principle in favor of openness in mind,

I turn to the statutory text. The plain language of the

TNA provides that the arbitration panel pool is in the

department. Specifically, § 10-153f (a) provides in relevant part: ‘‘There shall be in the Department of Education an arbitration panel of not less than twenty-four

or more than twenty-nine persons to serve as provided

in subsection (c) of this section. . . .’’ (Emphasis

added.) There is only one reasonable interpretation of

the phrase ‘‘in the [d]epartment’’—the arbitration panel

pool is part of the department. The phrase ‘‘in the

[d]epartment’’ is not qualified in any manner that suggests that the legislature intended to limit its meaning,

and the overall statutory scheme supports the conclusion that both the arbitration panel pool and the TNA

arbitration panels formed from it are part of the department, subject to the oversight of the Commissioner of

Education (commissioner).

The key word in the statutory phrase is, of course,

the unrestricted word ‘‘in,’’ which is a preposition. It is

a basic rule of grammar that the function of a preposition is to express the relation between the object of

the preposition and the word or phrase that is being

modified by the preposition.In this case, the preposition

‘‘in’’ connects ‘‘an arbitration panel’’ (the arbitration

panel pool) and ‘‘the [d]epartment.’’ Obviously, the

word ‘‘in’’ has many different meanings, and the particular meaning depends on the nature of the two things

being connected by ‘‘in.’’4 Because the department and
the arbitration panel pool are organizational entities,

the most logical understanding of the relationship

between them is that the word ‘‘in’’ clarifies the organizational relationship between the two of them. That is,

the arbitration panel pool is ‘‘in’’ the department in the

sense that the department is a ‘‘whole,’’ which includes

within it a ‘‘part,’’ the arbitration panel pool. See Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003)

(including within definition of word ‘‘in’’: ‘‘used as a

function word to indicate inclusion’’). Nothing in § 10-

153f (a) or in the remainder of the TNA controverts the

plain meaning of the statement: ‘‘There shall be in the

Department of Education an arbitration panel . . . .’’

(Emphasis added.) In fact, as I explain, viewing the

statutory scheme as a whole confirms the commonsense reading of that statement.

In support of its position that the arbitration panel

pool is not in the department, the majority focuses on

only some of the statutory provisions that comprise the

TNA, and fails to account for the provisions that do not

support its position. Specifically, the majority places

heavy reliance on the fact that § 10-153f (a) gives the

governor the authority to appoint the panel members

with the advice and consent of the General Assembly,

and to select the names of those appointed to the arbitration panel pool from lists of names submitted by

three different groups, depending on which of three

categories the panel member falls under, namely: (1)

those that are representative of the interests of local

and regional boards of education; (2) those that are

representative of the interests of bargaining representatives of certified employees; and (3) those that are

impartial representatives of the interests of the public

in general. General Statutes § 10-153f (a). The mere fact

that the governor appoints panel members, however,

does not have any bearing on the meaning of the statement that the arbitration panel pool is ‘‘in’’ the department. It is in fact common for the governor to appoint

persons to positions on boards and commissions within

executive agencies. See, e.g., General Statutes § 4-6

(governor has authority to appoint department heads,

including Commissioner of Education); General Statutes § 20-139a (governor has authority to appoint members of Connecticut Board of Examiners for Opticians,

which is in Department of Public Health); General Statutes § 31-102 (governor has authority to appoint members of Connecticut State Board of Labor Relations,

which is in Labor Department).

The majority also argues that the statute’s failure to

require the department to compensate the panel members injects a degree of ambiguity into the meaning of

the statement that the arbitration panel pool is ‘‘in’’

the department. Specifically, § 10-153f (a) provides that

panel members ‘‘shall serve without compensation but

each shall receive a per diem fee for any day during

which such person is engaged in the arbitration of a
dispute pursuant to this section.’’ The majority has cited

to no authority, however, for the proposition that only

persons who are compensated by a department or

agency can be members of that body.

Furthermore, the majority’s assertion that the significant degree of autonomy granted to the TNA arbitration

panels supports a conclusion that ‘‘aside from having

their name on the list, the arbitrators have no association whatsoever with the department’’; (emphasis

added); is blatantly wrong and contradicted by the

majority’s own interpretation of the statutory language

to mean that the arbitration panel pool is in the department for administrative purposes. The majority’s statement also ignores the complexity of the statutory

scheme, which crafts a carefully balanced relationship

between the TNA arbitration panels and the department. That is, the TNA simultaneously gives the panels

a great degree of autonomy, yet subjects the entire

arbitration process to the oversight of the commissioner, who bears the responsibility to ensure that the

desired end result—an agreement between the parties—is achieved. My review of the statutory scheme

reveals that, far from having no association with the

department, the TNA arbitration panels are integrally

connected to it. The statutory scheme as a whole confirms what the plain language of § 10-153f provides—

the arbitration panel pool and the individual TNA arbitration panels are part of the department.

The commissioner’s oversight authority begins immediately with the selection process for the TNA arbitration panels, a process characterized by regular guidance

from the commissioner, who functions as a safeguard

to prevent the process from failing. For example, the

parties are required to notify the commissioner of their

progress at every step of the selection process. Section

10-153f (c) (1) provides that if the parties determine to

proceed with a three member TNA arbitration panel,

‘‘the commissioner shall order the parties . . . to

notify the commissioner of . . . the name of the arbitrator selected by each of them. . . .’’ That is, the board

selects an arbitrator who represents the interests of

local and regional boards of education, and the

employee bargaining unit selects an arbitrator who represents its interests, then each party notifies the commissioner of its selection. General Statutes § 10-153f

(a) and (c) (1). With respect to the third, neutral arbitrator, the statute provides that ‘‘the parties shall notify

the commissioner of the name of the arbitrator if there

is . . . agreement on the third arbitrator appointed to

the panel pursuant to [§ 10-153f (a) (3)] . . . .’’ General

Statutes § 10-153f (c) (1). It is highly significant that

§ 10-153f (c) (1) gives the commissioner the authority

to select some or all of the panel members if the parties

fail to notify the commissioner of their selections as

required, and authorizes the commissioner to select the

impartial arbitrator if the parties cannot agree. General
Statutes § 10-153f (c) (1). These provisions establish

that ultimately it is the commissioner who bears responsibility to oversee the process.

Once created, the TNA arbitration panels have a significant degree of autonomy, but the commissioner’s

oversight authority continues after the selection stage

is completed. For example, the commissioner has the

power to ‘‘order the parties to appear before said commissioner during the arbitration period. . . .’’ General

Statutes § 10-153f (c) (1). Although this statement

appears in the section addressing the selection of arbitrators, the statute does not limit in any manner the

commissioner’s broad authority to order the parties to

appear before him or her. As long as the arbitration

period continues, there is no time limit on the commissioner’s authority to summon the parties, no limitation

as to basis, no limitation as to the number of times that

the commissioner may invoke this authority, no power

on behalf of the arbitrators to circumvent the commissioner’s authority, and no requirement that the commissioner consult the arbitrators before summoning the

parties.

The responsibility that the commissioner has to oversee the process is confirmed by § 10-153f (c) (5), which

imposes a duty upon the commissioner to ‘‘assist the

arbitration panel . . . as may be required in the course

of arbitration . . . .’’ It is difficult to reconcile the commissioner’s statutory duty with the majority’s assertion

that there is no association between the commissioner

and the TNA arbitration panels. The majority simultaneously suggests that the commissioner’s duty to assist

is limited to the selection stage and arises only upon a

request by the panelists for assistance. I first observe

that these two limitations are internally inconsistent. If

the commissioner’s duty to assist were limited to the

selection stage, there would be no panel to request

assistance. More importantly, the statutory language

contains no such limitation, and the majority offers no

basis for its assertion. There is no qualification whatsoever in the statutory language that the commissioner’s

duty to assist is limited to the selection period or only

triggered upon a request by the panel. The commissioner’s duty to assist extends throughout the entire arbitration period, and arises ‘‘as may be required . . . .’’

General Statutes § 10-153f (c) (5). This provision could

not make it more clear—the commissioner is responsible for ensuring that the TNA arbitration panel succeeds

by resolving the dispute between the parties.

Upon rendering a decision, the arbitrators are

required to file a copy of that decision with the commissioner. General Statutes § 10-153f (c) (4). The majority

misses the point of this requirement. The commissioner

does not have the authority or responsibility to ensure

the particulars of the agreement between the parties,

only that there is an agreement, and, thus, the commis-
sioner is not authorized to reject or modify the ruling

of the panel. The commissioner’s responsibility is simply to ensure that the dispute is resolved. The requirement that the decision be filed with the commissioner

provides an update on the progress of the arbitration.

And there is good reason for the requirement that the

panel keep the commissioner apprised of the progress

of the arbitration. The commissioner’s responsibility to

oversee the process continues even afterthe arbitrators

have rendered their decision. If the legislative body of

the school district rejects the arbitration award pursuant to § 10-153f (c) (7), the commissioner must be notified. The commissioner then must select a review panel

of three arbitrators or, if the parties agree, an individual

arbitrator, who shall then review the arbitration decision on each rejected issue. General Statutes § 10-153f

(c) (7). Thus, even after the TNA arbitration panel is

finished, the commissioner’s work continues, if necessary, until the dispute ultimately is resolved.5

B

Although I conclude that the issue is resolved under

the plain language of § 10-153f, I observe that, even if

I were to agree with the majority that the language is

not plain and unambiguous, the extratextual sources

relied on by the majority actually support my conclusion

that the TNA arbitration panels are subunits of the

department. The majority states that there are two reasonable interpretations of the phrase ‘‘in the Department’’: Either the phrase means that the arbitration

panel pool is, indeed, ‘‘in’’ the department, or that it is

‘‘in’’ the department for administrative purposes only.

After concluding that the plain language does not

resolve which of the two meanings was intended by the

legislature, the majority turns to the legislative history.

The phrase ‘‘in the Department of Education’’ was

first added to § 10-153f (a) through No. 77-614, § 304,

of the 1977 Public Acts (P.A. 77-614), ‘‘An Act concerning the Reorganization of the Executive Branch of State

Government.’’ The substantial legislative history of this

omnibus act does not reference or explain the meaning

of the phrase, ‘‘in the Department of Education.’’ The

overall purpose of P.A. 77-614, to reorganize the executive branch, is consistent with either interpretation of

the phrase ‘‘in the Department of Education’’—that it

designates the arbitration panel pool as a subunit of

the department or that it simply locates the panel in

the department for administrative purposes. Contrasting the language of § 304, however, with other provisions within P.A. 77-614, reveals that the legislature

intended, in § 304 of P.A. 77-614, to establish that the

arbitration panel pool is a subunit of the department.

Specifically, when the legislature intended to locate

a body in a department or agency for administrative

purposes only, it expressly provided so. See, e.g., P.A.

77-614, § 81 (locating Commission on Capitol Preserva-
tion and Restoration in Department of Administrative

Services ‘‘for administrative purposes only’’); P.A. 77-

614, § 137 (locating Commission on Human Rights and

Opportunities in Department of Administrative Services

‘‘for administrative purposes only’’); P.A. 77-614, § 305

(locating Connecticut Historical Commission in Department of Education ‘‘for administrative purposes only’’);

P.A. 77-614, § 307 (locating State Commission on the

Arts in Department of Education ‘‘for administrative

purposes only’’). The inclusion of the phrase ‘‘for administrative purposes only’’ in those and other sections of

P.A. 77-614, contrasted with the omission of any such

limiting language in § 304, which provided merely that

the arbitration panel shall be ‘‘in’’ the department, supports my conclusion that the legislature intended that

the panel actually be a subunit of the department,rather

than merely administered by the department.

That conclusion finds further support in the ‘‘overarching legislative policy’’ underlying the FOIA, which

‘‘favors the open conduct of government and free public

access to government records. . . . The sponsors of

the FOIA understood the legislation to express the people’s sovereignty over the agencies which serve them

. . . . Our construction of the [FOIA] must be guided

by the policy favoring disclosure and exceptions to

disclosure must be narrowly construed.’’ (Citations

omitted; internal quotation marks omitted.) Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. 712. The conclusion that the

TNA arbitration panels are public agencies for purposes

of § 1-200 (1) (A) furthers the strong public policy in

favor of openness that underlies the FOIA.6

Finally, the conclusion that TNA arbitration panels

are public agencies for purposes of the FOIA is consistent with the overall purpose of the TNA, which is to

serve the state’s best interest ‘‘by according teachers

the right to negotiate in accordance with the terms

and conditions of the [TNA]. It eliminates any need for

resort to illegal and disruptive tactics.’’7 West Hartford

Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 584,

295 A.2d 526 (1972). By assisting local boards of education and employee bargaining groups to resolve disputes that arise during the process of collective

bargaining, the work performed by the TNA arbitration

panels is central to the duty imposed on government

by the constitution of Connecticut, article eighth, § 1,

which provides: ‘‘There shall always be free public elementary and secondary schools in the state. The general

assembly shall implement this principle by appropriate

legislation.’’ Put simply, by assisting in the efficient

resolution of disputes that arise during the collective

bargaining process, the TNA arbitration panels ensure

that Connecticut is able to provide a free, uninterrupted

education to the children of this state. Accordingly, the

TNA arbitration panels are public agencies for purposes

of § 1-200 (1) (A).8
II

THE EVIDENTIARY PORTION OF THE ARBITRATION

HEARING IS A MEETING

I next address the question of whetherthe evidentiary

portion of the arbitration hearing is a meeting pursuant

to § 1-200 (2),9 and therefore subject to the open meetings provision of General Statutes § 1-225 (a).10 The

plaintiff contends that the evidentiary portion of TNA

arbitration hearings constitutes ‘‘strategy or negotiations with respect to collective bargaining’’; General

Statutes (Supp. 2014) § 1-200 (2); and therefore is

excluded from the definition of ‘‘ ‘[m]eeting’ ’’ in § 1-

200 (2). The commission and the intervening defendants

Waterbury Republican-American and Jim Moore, a journalist, respond that although the presentation of evidence during a TNA arbitration is in support of and

related to strategy and negotiation with respect to collective bargaining, it is nonetheless distinguishable

from the actual strategy and negotiations. I conclude

that because the evidentiary portion of TNA arbitration

hearings merely relates to, and does not itself constitute, strategy or negotiations with respect to collective

bargaining, that portion of the proceedings is encompassed within the meaning of the term ‘‘ ‘[m]eeting’ ’’

in § 1-200 (2), and is subject to the open meetings provision of the FOIA.

Because the question of whether the evidentiary portion of TNA arbitration proceedings constitutes a

‘‘ ‘[m]eeting’ ’’ pursuant to § 1-200 (2) presents an issue

of statutory construction, I am guided by the same statutory construction principles that have informed my discussion of whether TNA arbitration panels are public

agencies pursuant to § 1-200. See part I of this dissenting

opinion. Pursuant to those principles, I begin with the

statutory text. Section 1-200 (2) defines the term

‘‘ ‘[m]eeting’ ’’ to include ‘‘any hearing or other proceeding of a public agency . . . to discuss or act upon a

matter over which the public agency has supervision,

control, jurisdiction or advisory power.’’ The statute

then lists several exemptions from the definition of

‘‘ ‘[m]eeting,’ ’’ including the one that is relevant to the

present case, ‘‘strategy or negotiations with respect to

collective bargaining . . . .’’ General Statutes (Supp.

2014) § 1-200 (2). The question, therefore, is whether

the evidentiary portion of TNA arbitration proceedings

constitutes ‘‘strategy or negotiations with respect to

collective bargaining.’’

Before I turn to the specific question of how the

evidentiary portion of TNA arbitration proceedings

‘‘fits’’ into the FOIA, it is helpful to understand this

issue in the context of the structure of the TNA. This

court previously has explained: ‘‘Although TNA arbitrations arise out of an initial failure to reach agreement

in ordinary collective bargaining, they were designed
to provide incentives forfurther bargaining between the

parties. The TNA establishes a sequence of increasingly

formal collective bargaining procedures to ensure the

existence of a teacher contract by the beginning of the

town’s fiscal year. A board of education and representatives of the teachers’ union have a statutory duty to

negotiate concerning salary and other conditions of

employment. General Statutes § 10-153d (b). Those

negotiations must commence no later than 210 days

prior to the budget submission date for the board. General Statutes § 10-153d (b). If a complete negotiated

settlement has not been reached by 160 days priorto the

submission date, the statutes mandate that the parties

proceed to mediation. General Statutes § 10-153f (b).

Finally, if mediation has not settled all remaining disputes by 135 days prior to the submission date, the

statute imposes mandatory last best offer arbitration.

General Statutes § 10-153f (c) (1). After a hearing at

which each party may present all relevant evidence, the

arbitral panel ‘shall resolve separately each individual

disputed issue by accepting the last best offer thereon

of either of the parties . . . .’ General Statutes § 10-153f

(c) (4).’’ (Footnote omitted.) Glastonbury Education

Assn. v. Freedom of Information Commission, supra,

234 Conn. 714–15.

This structure of the TNA, in which arbitration proceedings—when it becomes necessary to employ

them—function as an extension of the negotiation and

mediation stages, makes clear that ‘‘a TNA arbitration

does not operate as a typical quasi-judicial process, but

rather as a stylized or ritualized mediated negotiation

process in which the parties submit initial last best

offers, interim last best offers and final last best offers.

Throughout the process, the threat of the [TNA] arbitration panel’s decision-making power provides a strong

incentive for the parties to resolve outstanding issues.

. . . [T]he arbitrators ‘don’t receive the parties’ absolute final position until the very end of the hearing and

the parties often and usually present a different position

when they open the hearing . . . .’ ’’ (Footnote omitted.) Id., 715–16.

Despite this court’s recognition of the unique nature

of TNA arbitrations as a continuation of the negotiation

process, we were mindful in Glastonbury Education

Assn. v. Freedom of Information Commission, supra,

234 Conn. 712, that in addressing the issue of whether

the presentation of last best offers constitutes strategy

or negotiations with respect to collective bargaining,

‘‘[o]ur construction of the [FOIA] must be guided by the

policy favoring disclosure and exceptions to disclosure

must be narrowly construed.’’(Internal quotation marks

omitted.) We explained further that ‘‘the statutory definition of public meetings contained in [§ 1-200 (2)] must

be read to limit rather than to expand the opportunities

for public agencies to hold closed hearings. Accordingly, the language providing that public meetings ‘shall
not include . . . strategy or negotiations with respect

to collective bargaining’ means . . . that what is

excluded from the term ‘meeting’ is not all collective

bargaining, but only ‘strategy or negotiations’ sessions

that relate to collective bargaining.’’ (Emphasis

altered.) Id., 712–13. In light of that policy, we were

careful to craft our holding narrowly, stating that ‘‘the

actual presentation of last best offers by the parties

sufficiently resembles ‘negotiations,’ despite the fact

that they occur during a proceeding denominated as

‘arbitration,’ to be excluded from the ‘meeting’ requirements of the FOIA.’’ Id., 717. Because the commission’s

order in Glastonbury Education Assn. determined that

the entire arbitration hearing, including the presentation of last best offers, was subject to the open meetings

provision, we held thatthe order was invalid. We specifically held out the possibility, however, that a more

narrowly tailored order, limited to the evidentiary portion of the TNA arbitration proceedings, could be valid.

Id., 718.

This court’s narrow construction of the exemption

for ‘‘strategy or negotiations with respect to collective

bargaining’’ in Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn.

704, is significant because, in order for a proceeding to

fall within the exemption, it is not sufficient that the

proceeding merely be related to or part of the collective

bargaining process. The proceeding, or portion of it,

must actually consist of strategy or negotiations.

We underscored this requirement, that a proceeding

must itself be comprised of strategy or negotiations

in order to fall under the exemption, when we again

considered the scope of the exemption in Waterbury

Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 694 A.2d 1241 (1997). In that case,

we addressed the issue of whether grievance proceedings were exempt from the open meetings provision of

the FOIA because they constituted strategy or negotiations with respect to collective bargaining. Id., 837. We

began by citing to Glastonbury Education Assn. v.

Freedom of Information Commission, supra, 234

Conn. 711–13, for the proposition that the exemption

does not encompass ‘‘collective bargaining proceedings

in their entirety’’ from the open meetings requirement,

but only ‘‘sessions that relate specifically to ‘strategy

or negotiations.’ ’’ Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 839. The mere

fact that the grievance procedures ‘‘[arose] out of, and

relate[d] to, collective bargaining’’ was not sufficient to

establish that the exemption applied. Id., 840. Instead,

in order to determine whether grievance proceedings

constituted strategy or negotiations with respect to collective bargaining, we examined the ‘‘operational characteristics’’ of those proceedings as established by the

testimony and evidence presented to the commission.

Id., 841.
Our review of that evidence revealed that the grievance process involves two stages: the presentation of

evidence, and the request for a remedy. Id., 841–42. On

the basis of our examination of those two stages, we

held that the commission properly had concluded that,

although the request for a remedy fell under the exemption, the presentation of evidence did not, because the

latter did not consist of strategy or negotiations. Therefore, that portion of the grievance hearings was required

by the FOIA to be open to the public. Id., 843. A significant difference between the two stages was that the

request for a remedy involved bargaining back and forth

between the parties, and often the grievance could be

resolved at that stage of the proceedings through a

new interpretation of the agreement, which could be

incorporated into the original collective bargaining

agreement by way of memoranda of understanding. Id.,

842. By contrast, in the evidentiary portion of the proceedings, the parties ‘‘had discussed matters other than

strategy or negotiation with respect to collective bargaining . . . .’’ (Internal quotation marks omitted.) Id.

Specifically, during that portion of the proceedings, the

parties presented evidence regarding the ‘‘underlying

facts allegedly giving rise to the grievance . . . .’’ Id.,

843–44. Although evidence of the underlying facts giving

rise to a grievance certainly is related to the strategies

of the parties, and could both relate to and impact

negotiations, our decision in Waterbury Teachers Assn.

reinforces the rule we had set forth in Glastonbury

Education Assn. v. Freedom of Information Commission, supra, 234 Conn. 704, regarding strategy or negotiations with respect to collective bargaining. Waterbury

Teachers Assn. v. Freedom of Information Commission, supra, 240 Conn. 837. We began by citing to Glastonbury Education Assn. v. Freedom of Information

Commission, supra, 704, and noted that the proceeding

must be more than related to strategy and negotiations.

In order to fall under the exemption, a proceeding must

actually consist of strategy and negotiations.

Consistent with the rationale in Waterbury Teachers

Assn. v. Freedom of Information Commission, supra,

240 Conn. 841, in order to determine whether the evidentiary portion of TNA arbitration proceedings merely

relates to, or actually constitutes strategy or negotiations with respect to collective bargaining, I examine

the operational characteristics of the proceedings.11

Specifically, I examine three characteristics of the arbitration proceedings: (1) the type of evidence presented

during the proceedings; (2) the relationship between

the presentation of evidence and the presentation of

last best offers; and (3) the nature of communications

between the parties, both in and outside the presence

of the TNA arbitration panel as established by § 10-153f

and the testimony before the commission. My review

of the proceedings persuades me that although the presentation of evidence is related to strategy and negotia-
tions and is an integral part of the collective bargaining

process at the arbitration stage, the evidentiary portion

of TNA arbitration proceedings does not itself constitute either strategy or negotiations.

The types of evidence presented at a TNA arbitration

are dictated by statute, and are by their very nature

related to issues that are likely to be the subject of

negotiations between the parties as a part of the collective bargaining process. Section 10-153f (c) (2) provides

in relevant part that during the hearing, ‘‘each party shall

have full opportunity to submit all relevant evidence, to

introduce relevant documents and written material and

to argue on behalf of its positions. At the hearing a

representative of the fiscal authority having budgetary

responsibility or charged with making appropriations

forthe school district shall be heard regarding the financial capability of the school district . . . .’’ The type

of evidence presented is also guided by the statutory

factors that the arbitrators are required to consider. In

addition to presenting evidence regarding the public

interest and the financial capability ofthe town ortowns

in the school district—the two factors to which the

arbitrators are required to give priority—the parties

may present evidence relevant to the following statutory factors considered by the arbitrators: ‘‘(A) [t]he

negotiations between the parties prior to arbitration,

including the offers and the range of discussion of the

issues;12 (B) the interests and welfare of the employee

group; (C) changes in the cost of living averaged over

the preceding three years; (D) the existing conditions

of employment of the employee group and those of

similar groups; and (E) the salaries, fringe benefits, and

other conditions of employment prevailing in the state

labor market, including the terms of recent contract

settlements or awards in collective bargaining for other

municipal employee organizations and developments

in private sector wages and benefits. . . .’’ (Footnote

added.) General Statutes § 10-153f (c) (4).

I next turn to the relationship between the presentation of evidence and the presentation of last best offers.

Because the categories of evidence are all relevant to

the issues that are likely to be the subject of collective

bargaining, the content of the evidence will certainly

be related to the last best offers presented by the parties.

There is, however, a more functional connection

between the presentation of evidence and the presentation of last best offers that is relevant to my analysis.

Specifically, the testimony before the commission in

the present case demonstrated that the parties to a TNA

arbitration proceeding regularly use the presentation

of evidence to influence the last best offers of the opposing party.

To understand this functional connection, it is helpful

to view last best offers and the presentation of evidence

in light of the nature of TNA arbitration proceedings.
James Larry Foy, the impartial arbitrator in the present

case, explained during his testimony before the commission that the presentation of evidence during a TNA

arbitration proceeding is greatly affected by the unique

characteristics of TNA arbitration proceedings, which

are a type of interest arbitration, and involve the creation of a new or amended labor contract rather than

the resolution of an alleged violation of an existing

contract. See generally 48B Am. Jur. 2d 118, Labor and

Labor Relations § 2488 (2005). At the outset of the proceedings, as to each disputed contract issue, each party

presents an initial last best offer. Often, the parties also

present an interim last best offer.13 At the end of the

proceedings, the parties present final last best offers

as to all remaining unresolved issues, and the TNA

arbitration panel must select the last best offer of one

of the parties as to each issue, with no authority to

alter the terms. The selected last best offer becomes

the contract term as to that issue. The panel’s lack of

discretion to alter the last best offers creates an incentive for the parties to resolve the dispute as to each

issue rather than leaving that issue to be decided by

the panel.

The effect of this all or nothing approach is that the

parties’respective positions are brought closertogether

by the risk that by failing to compromise, they will lose

entirely on that issue. As a result, the parties present

the evidence with the knowledge that it will provide

the panel with an evidentiary basis upon which to evaluate the final last best offers of each side of the dispute

in accordance with the statutory factors listed in § 10-

153f (c) (4), and that the panel must select only one

side, without the authority to modify the terms. Under

this system, Foy explained, each party is highly motivated to submit the last best offer that will most likely

be selected by the panel, and each uses the presentation

of evidence to persuade the other side that its position

is the stronger one, and that failure to compromise,

in light of the evidence, will result in the arbitrators

selecting the presenting party’s last best offer on that

issue.

Gail McKinley Anderson, a field representative for

the Connecticut Education Association, who represents

teacher unions and education associations in negotiation, mediation and arbitration proceedings, and who

also testified at the commission hearing, confirmed

Foy’s assessment of the link between the presentation

of evidence and the parties’ last best offers. Anderson

explained that her decision regarding which evidence

to present is part of her strategy, because she selects

the evidence that she believes will most likely convince

a board of education to modify its last best offer. She

indicated that her selection of evidence is based on her

knowledge that the TNA arbitration panel does not have

discretion to modify the last best offer it selects, and

she therefore presents evidence designed to persuade
a board of education that the risk of going forward

without modifying its last best offer is too high.

Finally, I review the nature of the communications

between the parties during the proceedings, both in

and outside the presence of the panel. When Foy was

questioned, during the hearing before the commission,

as to whether negotiations are continuous during TNA

arbitration proceedings, he responded that they are not.

He conceded that in the presence of the panel, the bulk

of the recorded proceedings generally consist of the

presentation of evidence and argument. There is not

always a bright line, however, between evidence and

argument, and the structure of the proceedings is quite

informal. Witnesses do not necessarily testify from a

stand, and parties may make spontaneous responses to

a witness’testimony. At times, in fact, the parties engage

with each other in the presence of the panel, representing their positions to each other in a manner consistent

with the communications one would expect during

negotiations. Foy offered the following as a typical

example of the type of statement one party might make

to the other side on the record, in the presence of the

panel: ‘‘[I]f your position [were] X on issue one rather

than Y, then maybe we [could] work this thing out, but

that’s not your position . . . .’’ He also indicated, however, that the extent of this type of exchange in front

of the panel tends to be limited in its scope, and that

the bulk of negotiations generally occur outside the

presence of the panel.

Both Foy and Anderson testified that outside the

presence of the panel, the parties regularly engage in

negotiations with each other and each party meets with

its representative on the TNA arbitration panel to discuss strategy, receive advice from that representative,

and discuss possible revisions and proposals of that

party’s last best offer. It is not uncommon for the representative of a party to attempt, during these ex parte

communications, to persuade that party to make concessions. The third, impartial arbitrator, however, does

not meet with the parties separately, and the meetings

with the representative arbitrators are not recorded.

In summary, my review of the operational characteristics of the TNA arbitration proceedings leaves no

doubt that communications that occur during the evidentiary portion of the proceedings are related to the

parties’ strategy with respect to collective bargaining.

The uncontroverted testimony demonstrates that the

selection and presentation of evidence are based on

strategic decisions, and have the strategic purpose of

persuading the other side to compromise. The fact that

the presentation of evidence is part of a party’s overall

strategic plan and is undertaken in a strategic manner,

however, does not make the presentation of the evidence itself strategy. In any judicial or quasi-judicial

proceeding, the presentation of evidence is undertaken
for strategic purposes. That fact alone is not sufficient

to transform the presentation of evidence into strategy.

There was no testimony offered at the commission hearing that any parties discussed strategy on the record,

in the presence of the TNA arbitration panel. As

explained by Foy in his testimony to the commission,

discussions of strategy during the proceedings are confined to discussions outside the presence of the entire

panel and the opposing party, either with or without

the aid of the party’s panel representative. The third,

impartial arbitrator is never privy to strategy discussions.

Although the connection between the presentation

of evidence and negotiations is a bit more complex, I

am similarly persuaded that the presentation of evidence does not, in and of itself, constitute negotiations.

The presentation of evidence is certainly an important

means by which the parties persuade the other side

to negotiate, but the two ultimately are related, yet

distinguishable. Foy, in fact, distinguished among three

categories of communication that occur in the presence

of the panel: presentation of evidence, argument and

negotiations.14 Although he testified that there was not

always a bright line between evidence and argument,

and that the proceedings tend to be somewhat informal,

he did not indicate that there was a similar difficulty

in distinguishing between the presentation of evidence

and negotiations. He was able to give a hypothetical

example of a type of communication, in the context of

the presentation of evidence, which he would categorize as negotiation. In addition, both he and Anderson

testified that the parties regularly negotiate with each

other outside the presence of the panel. Rather than

constituting negotiations, the presentation of evidence

in TNA arbitration proceedings, like the presentation

of evidence in grievance proceedings in Waterbury

Teachers Assn. v. Freedom of Information Commission, supra, 240 Conn. 843–44, consists of the underlying facts that are relevant to, but distinguishable

from, negotiations.

Because I conclude that the presentation of evidence

is merely related to and does not itself constitute strategy or negotiations with respect to collective bargaining, the evidentiary portion of TNA arbitration

proceedings does not fall under that exemption from

the definition of ‘‘ ‘[m]eeting’ ’’ in § 1-200 (2), and is

therefore subject to the open meetings provision of the

FOIA, § 1-225 (a). See footnote 10 of this dissenting

opinion.

Accordingly, I respectfully dissent.

1 General Statutes (Supp. 2014) § 1-200 provides in relevant part: ‘‘(1)

‘Public agency’ or ‘agency’ means:

‘‘(A) Any . . . department . . . of the state . . . including any committee of, or created by, any such . . . department . . . .’’ (Emphasis added.)

Although § 1-200 has been amended since the events underlying this

appeal; see, e.g., Public Acts 2011, No. 11-220, § 1; the amendments have

no bearing on the merits of this appeal. In the interest of simplicity, I refer
to the current revision of the statute codified in the 2014 supplement.

In Elections Review Committee of the Eighth Utilities District v. Freedom

of Information Commission, supra, 219 Conn. 687, we interpreted the

phrase ‘‘committee of’’ to mean subunit.

2 We specifically had noted in Elections Review Committee of the Eighth

Utilities District v. Freedom of Information Commission, supra, 219 Conn.

693, that if the statute were to include within the meaning of public agency

a committee ‘‘created by’’ the establishing public agency, the definition

would be significantly broader. We explained: ‘‘A ‘committee of’ an agency

would include a body composed solely of nonmembers of the agency to

whom the agency had assigned a particular task only if the use of the

possessive preposition were equivalent to ‘created by.’ Under such a construction, even one person, wholly unassociated with the agency except for

the project assigned to him for study and recommendation, such as an

outside consultant, would constitute a ‘committee of’ the agency.’’ Id. Subsequent to our decision in Elections Review Committee of the Eighth Utilities

District, the legislature expanded the definition of public agency in § 1-200

(1) (A) to include a committee ‘‘created by’’ a public agency. Public Acts

1993, No. 93-195, § 1. Because I conclude that a TNA arbitration panel is a

‘‘committee of’’ the department, however, it is unnecessary to address in

this dissent whether it also is a committee created by the department.

The legislature’s response to this court’s decision, however, supports the

conclusion that it intended the definition of a committee of, or created by,

a public agency to be broad enough to encompass the TNA arbitration

panels. Our decision stated that if the statute included the phrase ‘‘created

by,’’ the definition would include even an outside contractor, whose only

association with the agency was the project assigned to him. Elections

Review Committee of the Eighth Utilities District v. Freedom of Information Commission, supra, 693. In response, the legislature added precisely

that language.

3 Because I conclude that the arbitration panel pool is a subunit of the

department, I need not consider whether the panel is a public agency in its

own right, independent of any relationship it has with the department. I

observe, however, that although the majority has concluded that the panel

is not a public agency by virtue of being part of the department, it provides

no explanation as to why the panel does not otherwise fit the definition of

‘‘ ‘[p]ublic agency’ ’’ in § 1-200 (1) (A), despite the fact that the panel is

created by statute, is governed by an extraordinarily complex statutory

scheme, and is comprised of members who are appointed by the governor

and confirmed by the legislature. Moreover, the definition of ‘‘ ‘[p]ublic

agency’ ’’ in § 1-200 (1) (A) is extraordinarily broad, encompassing ‘‘[a]ny

executive, administrative or legislative office of the state or any political

subdivision of the state and any state or town agency, any department,

institution, bureau, board, commission, authority or official of the state or

of any city, town, borough, municipal corporation, school district, regional

district or other district or other political subdivision of the state, including

any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also

includes any judicial office, official, or body or committee thereof but only

with respect to its or their administrative functions, and for purposes of

this subparagraph, ‘judicial office’ includes, but is not limited to, the Division

of Public Defender Services . . . .’’ General Statutes (Supp. 2014) § 1-200

(1) (A). Yet the majority provides no discussion whatsoever explaining why

it has failed, in its statutory construction analysis, to consider whether the

arbitration panel, even if it is not a ‘‘committee of’’ the department, is a

public agency in its own right.

4 Without any explanation, the majority suggests that the meaning of the

word ‘‘in’’ is limited to indicating ‘‘physical surroundings.’’ It then confidently

asserts that the members of the arbitration panel pool are not located in

the department. The only aspect of the arbitration panel pool that is ‘‘in’’

the department, the majority states, is the list. There is simply no basis to

interpret the word ‘‘in’’ in such a narrow manner. To illustrate the lack of

logic in the limited scope of the majority’s definition: If the word ‘‘in’’ did

indeed have such a narrow meaning, then the statement, ‘‘the Superior Court

is in the Judicial Branch’’ would mean that the Superior Court is somehow

physically contained within the Judicial Branch.

5 The majority claims that the lack of an express provision in the TNA

requiring that the arbitration hearings be open to the public is significant

because: (1) if the legislature had wanted to make the hearings open to the

public it could have so required; and (2) in light of this court’s decision in
Elections Review Committee of the Eighth Utilities District v. Freedom of

Information Commission, supra, 219 Conn. 685, the failure of the legislature

subsequently to amend § 10-153f to reject this court’s interpretation of the

phrase ‘‘committee of’’ suggests legislative acquiescence.

As to the first point, I observe that the legislature has expressly required

that hearings be open to the public, if the hearings are a meeting of a public

agency pursuant to the FOIA. The issue in this appeal is whether TNA

arbitration hearings are meetings of a public agency subject to the disclosure

requirements of the FOIA. If we required an express provision in each

substantive statute requiring public hearings, the open meetings requirement

of the FOIA would be redundant.

As to the second point, I note that the nature of the disagreement between

the majority and the dissent does not concern whether the legislature acquiesced to our interpretation of the statutory phrase ‘‘committee of’’ in Elections Review Committee of the Eighth Utilities District v. Freedom of

Information Commission, supra, 219 Conn. 685, to mean a subunit of a

public agency. We are in agreement that a subunit of a public agency is a

public agency for purposes of the FOIA. Our disagreement concerns whether

the arbitration panel pool and the TNA arbitration panels are subunits of

the department. Moreover, as I point out in footnote 2 of this dissenting

opinion, the legislature’s response to Elections Review Committee of the

Eighth Utilities District supports the conclusion that it intended to extend

the meaning of the phrase ‘‘committee of’’ significantly by adding the language ‘‘or created by.’’

6 The public policy principle favoring public access to government records

is particularly strong in the present case because of the importance that this

particular type of information has for the public. Expenditures on education

constitute the majority of a municipality’s budget. See http://www.ct.gov/

opm/lib/opm/FI_2008-2012_Asof3-6-14.pdf (last visited December 2, 2014).

Accordingly, the public has a strong interest in gaining access to TNA

arbitration proceedings, which concern issues that have a direct effect on

the cost of education in a municipality or district.

7 This broader purpose is reflected in the impasse resolution procedures

of the TNA, which are intentionally linked to a school district’s budget

submission date. Negotiations, for example, must commence not less than

210 days prior to the budget submission date. General Statutes § 10-153d

(b). If the parties have not come to an agreement 160 days prior to the

budget submission date, the parties must commence mediation. General

Statutes § 10-153f(b). If a settlement cannot be reached on or before 135 days

prior to the budget submission date, arbitration must commence. General

Statutes § 10-153f (c) (1).

8

I observe that the majority, with no analysis, asserts the bald conclusion

that the TNA arbitration panels are not the functional equivalent of a public

agency. Despite the fact that a conclusion to the contrary would render its

holding invalid, the majority simply dismisses the possibility without even

mentioning the four factor test used for determining whether an entity is

the functional equivalent of a public agency for purposes of the FOIA, which

this court first set forth in Board of Trustees v. Freedom of Information

Commission, 181 Conn. 544, 436 A.2d 266 (1980). Drawing from federal

law, we eschewed a formalistic approach in favor of a practical inquiry

centered on the following four factors: ‘‘(1) whether the entity performs a

governmental function; (2) the level of government funding; (3) the extent

of government involvement or regulation; and (4) whether the entity was

created by the government.’’ Id., 554. We have emphasized that ‘‘[a]ll relevant

factors are to be considered cumulatively, with no single factor being essential or conclusive.’’ (Internal quotation marks omitted.) Connecticut

Humane Society v. Freedom of Information Commission, 218 Conn. 757,

761, 591 A.2d 395 (1991).

9 General Statutes (Supp. 2014) § 1-200 (2) provides in relevant part:

‘‘ ‘Meeting’ means any hearing or other proceeding of a public agency . . .

to discuss or act upon a matter over which the public agency has supervision,

control, jurisdiction or advisory power. ‘Meeting’ does not include . . .

strategy or negotiations with respect to collective bargaining . . . .’’

10 General Statutes § 1-225 (a) provides in relevant part: ‘‘The meetings of

all public agencies, except executive sessions, as defined in subdivision (6)

of section 1-200, shall be open to the public. . . .’’

11 For convenience, as I review the operational characteristics of the TNA

arbitration proceedings, I refer only to the TNA arbitration panels, although

the parties may elect to proceed with a single arbitrator rather than a panel.

See General Statutes § 10-153f (c).
12 James Larry Foy, the impartial arbitrator in the present case, explained

in his testimony before the commission that the evidence offered in connection with this factor consists of the ‘‘[h]istory of negotiations prior to arbitration.’’

13 Foy could not recall whether the parties had presented interim last best

offers in the present case.

14 In light of the fact that the parties are free to negotiate with each other

outside the presence of the panel during the proceedings, the parties are

obviously not compelled to engage in negotiations with each other on the

record in the presence of the panel.