1991 Conn. Super. Ct. 4672 | Conn. Super. Ct. | 1991
The appellant and his family had resided in New Canaan since 1980 but had moved to a new home in 1985 which had an address on a street located in New Canaan but a large portion of their property was in the town of Norwalk. In early January of 1989 the appellant was advised by the New Canaan Board of Education that school accommodations would not be provided in New Canaan for his daughter. On April 4, 1989 he requested a hearing pursuant to
A hearing was held before the New Canaan Board of Education on April 13, 1989. The appellant thereafter appealed to the State Board of Education under the provisions of
(a) The State Board of Education has failed to articulate any proper standards for determining residency for purposes of establishing entitlement to education;
(b) Its determination was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(c) its determination, absence some rational and appropriate criteria for determining residency, was arbitrary, capricious and characterized by an abuse of discretion.
The State Board of Education counters the appellant's first allegation by maintaining that
This appeal is brought under the provisions of the Uniform Administrative Procedure Act. Sec.
The court finds that substantial rights of the appellant have been prejudiced because the decision of the hearing board was made upon unlawful procedure and was affected by error of law; in other words, the court is of the opinion that subparagraphs 3 and 4 of subsection j of Sec.
Although in his final decision the hearing officer in paragraph two did refer to a hearing de novo and in paragraph 13 referred to proof by a preponderance of the evidence seeming to indicate that he did conduct the hearing according to the statute, such was not the case and a mere statement to that effect cannot cure the error. Counsel were ordered to confine themselves to the same evidence that was presented before the New Canaan board and did in fact follow that instruction. And although the hearing officer after the fact could make a finding of a fair preponderance of the evidence based upon what he heard, we have no way of knowing how the hearing would have proceeded and what he would have heard had he adopted the correct standard to begin with and had he ordered the appellee to present its case first. In the opinion of this court the hearing officer misinterpreted the statute and used the wrong law in his conduct of the hearing to the prejudice of the appellant.
This court cannot substitute its judgment for that of the hearing officer in an appeal under the Uniform administrative Procedure Act and does not intend to do so. It does appear, however, that the same confusion which characterized the hearing was carried over into the hearing officer's memorandum of decision and it is unclear as to whether or not the hearing officer considered all of the evidence which was introduced in the case. Although, as indicated earlier, his opinion recognized the de novo aspect of the hearing and a need for a showing of a preponderance of the evidence, the opinion failed to discuss any other evidence introduced in the case except that which has to do with town's guideline, i.e., the proportion of property in each town and the proportion of taxes paid to each town, as quoted in paragraph 12 of the said decision, thus giving the impression that this evidence was all that was considered by the hearing CT Page 4676 officer during the hearing and leaves open the question as to whether or not he still felt that he had to uphold the town unless he determined that its actions were arbitrary, etc. as he indicated at the beginning of the hearing.
Having in mind that the court conducted this hearing based upon a false premise and discussed only one facet of the evidence in its decision, and also having in mind that although the appellees in their arguments summarily dismiss much of the appellant's evidence as being purely subjective, whereas it is clear that much of this subjective evidence was worthy of consideration (witness the guidelines provided by the state board of education) it becomes unclear as to whether the hearing officer ignored such testimony of the appellant and focused only on the town's principal contention, i.e., majority of the taxes, in which case his action would be improper or whether, in fact, he considered such evidence but, in his opinion, did not give it sufficient weight to overcome that offered by the town, in which case, of course, it would be within his prerogative.
Since it is clear that the hearing officer began the hearing based upon a false premise and conducted the hearing based upon the same premise, it is the opinion of this court that his decision was made upon unlawful procedure and was affected by error of law. Therefore, the court, on that basis alone, orders that the appeal is dismissed and the case remanded to the State Board of Education with direction to appoint another impartial hearing board for the purpose of conducting a hearing on the question involved in this case, in accordance with the provisions of Section
The appellant in his argument raises a constitutional question alleging that the absence of uniform residency criteria violates the appellant's substantive due process rights, and also in arguing that Section
As to the vagueness charge, this court is of the opinion that although no specific standard of review is indicated in the statute it does, by making the hearing before the state board the equivalent of a trial de novo on the issue of residency open the hearing to all relevant evidence on that issue, including that found in common law decisions, numerous opinions of the Connecticut attorney general and decisions of previous CSBE impartial hearing boards, as well as state guidelines, learned texts, and decisions from other states.
In this case the court finds that the appellant is an aggrieved party, being the father of a child who has been denied an education under the New Canaan educational system. The court also notes that the Norwalk Board of Education was made a party to this hearing by the hearing officer and apparently failed to appear. Contrary to the allegation made by the appellant, however, this is not an indication that the Norwalk Board of Education agrees with the decision of the New Canaan board.
Lest there be no misunderstanding, the hearing officer is cautioned that the issue before him at a successive hearing would be the actual residence of this child, not whether or not the New Canaan Board of Education finding was arbitrary, capricious or unreasonable. And although the statute at no time mentions the word de novo, it does appear that such a hearing would be the equivalent of a de novo hearing with the only evidence considered by the hearing officer being that entered at this hearing rather than a review of all of the evidence before the local board. Exhibits used by counsel before the local board could, of course, be entered by agreement of counsel but perhaps, as in a hearing de novo, they should be marked separately for this hearing. The hearing officer should, of course, hear and consider seriously all relevant evidence offered and should recognize that the primary concern should be the welfare of the child. Although, of course, economic information such as the payment of taxes is entitled to consideration, other evidence, so-called subjective evidence, is also entitled to consideration. The hearing officer should, of course, also recognize that it is the evidence itself which is before him which is to be weighed by him and not the source of the evidence. For example, it would not be for him to determine whether the criteria used by the town, i.e., payment of the majority of the taxes, is a proper or appropriate criteria but, rather, he should take any evidence as to payment of taxes and consider it along with all CT Page 4678 other evidence offered and in determining the actual residence of the child, it should receive no additional weight because it is the criteria used by the town. One can conceive, for example, of this situation (this example does not necessarily embody all of the factors in the instant case) a situation where the main entrance to a residence is in Town A, all or most of the adjoining properties are also in Town A and all face on the street located in Town A, the town line actually cuts through the home so that the bulk of the property and the house are in Town B but that the only access to streets in Town B is through property of others or by walking over streets in Town A. In such a case, giving one's address as a certain number on a street in Town A would not be inappropriate, particularly if this were the number assigned by the post office and mail delivery came from a post office in Town A. Giving such address on one's license would not be inappropriate. It is even doubtful whether this could be labeled subjective evidence. If in addition to all this all of the neighbors' children and the child's playmates went to a school in Town A and the school bus stopped in close proximity to her house and if it were necessary for her to walk some distance onto other streets to find playmates from Town B or to get transportation from Town B, the effect upon the child of such circumstances should be weighed and taken into consideration along with all other evidence. The fact that police, fire and ambulance service would be furnished by Town A even though by some mutual agreement with Town B would also be important. In such a case one would wonder why a mutual agreement would not have been entered into between the towns for the education of the child in Town A.
The court wishes to make it clear that the example used is the court's impression of a fairly clear-cut example of when other evidence might override evidence as to where the majority of the taxes are paid. It was put forth only as an example and the court has chosen to do this only because of the summary way in which the appellees have attempted to dismiss all evidence apart from taxes and the inability, because of the misimpression upon which the hearing was held, the emphasis placed upon the town's guideline in the hearing officer's decision, and the inability to tell from said decision whether or not the hearing officer considered all evidence in arriving at his decision. To put it differently, this court is suggesting that it would be helpful to any Appellate Court if the decision of the hearing officer were to indicate what arguments of the parties had been considered by the hearing board.
HALE, J. CT Page 4679