234 Conn. 704 | Conn. | 1995
Lead Opinion
The sole issue in this certified appeal is whether the Appellate Court properly concluded that, in the circumstances of this case, compulsory arbitration proceedings under the Teacher Negotiation Act (TNA); General Statutes § 10-153a et seq.; are exempt from the public meeting requirement of the Freedom of Information Act (FOIA); General Statutes §§ l-18a and 1-21;
The record reveals the following facts. After the GE A and the board had failed to reach agreement on a new union contract, compulsory binding arbitration was imposed by the commissioner of the department of education pursuant to General Statutes § 10-153Í.
The GEA, the commissioner of education and the arbitration panel appealed to the trial court, which sustained their appeal. That court held that, because compulsory arbitration proceedings are a continuation of strategy and negotiations with respect to collective bargaining, they do not constitute “meetings” pursuant to § l-18a (b) and thus they need not be open to the pub-
The FOIC challenges the Appellate Court’s conclusion that the relationship between compulsory binding arbitration hearings and collective bargaining automatically excludes such hearings in their entirety from the ambit of “meetings” of government agencies that are presumptively open to the public under § 1-21 (a). The statutory exclusion from the open meeting requirement contained in § l-18a (b) provides that “ ‘[mjeeting’ shall not include . . . strategy or negotiations with respect to collective bargaining . ...” In the view of the FOIC, the legislature intended this exclusion to encompass only those aspects of any collective bargaining process, including compulsory binding arbitrations, that directly involve strategy or negotiations. Although we agree with the FOIC in part, on the present record we affirm the judgment of the Appellate Court.
This appeal raises two interrelated issues of statutory construction. What is the scope of the exclusion for collective bargaining contained in § l-18a (b)?
Inquiry into the scope of the statutory exclusion for collective bargaining contained in § l-18a (b) must com
In light of these principles, the statutory definition of public meetings contained in § l-18a (b) must be read
Our interpretation of § l-18a (b) finds further support in related provisions of the FOIA that provide limited exceptions to the public disclosure requirement for those portions of proceedings that relate to strategy or negotiations. In § l-18a (e) (2), for example, the legislature authorized a public agency to adjourn a meeting into executive session for “strategy and negotiations with respect to pending claims and litigation” to which the agency itself is a party. Pointedly, the legislature did not adopt a more sweeping approach, such as closing the entire meeting, to achieve its purpose of sheltering specified components of the proceedings from public scrutiny. See Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190, 470 A.2d 1209 (1984) (agency’s
With these principles in mind, we turn to the structure of the TNA. Although TNA arbitrations arise out of an initial failure to reach agreement in ordinary collective bargaining, they were designed to provide incentives for further 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 prior to the submission date, the statutes mandate that the parties proceed to mediation. General Statutes § 10-153Í (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.
The issue raised by this three-step collective bargaining process is how to fit the process into the open meetings provisions of the FOIA. The various steps contemplated by the TNA could be construed as establishing a structural division between “negotiation,” which occurs at step one, and “arbitration,” which occurs at step three and occurs only if both negotiation and mediation have failed to result in a contract. Such a construction of the TNA would not comport, however, with the underlying realities of the TNA process.
The TNA contemplates arbitration proceedings that interface with collective bargaining between the parties and collective bargaining’s attendant “strategy and negotiations.” The TNA permits the arbitration proceedings to be continued, at the discretion of the arbitrators, provided that the arbitration hearing concludes within twenty-five days after its commencement. General Statutes § 10-153Í (c) (3). The apparent purpose of this provision is to afford the parties an opportunity to pursue further negotiations on their own even after compulsory arbitration has commenced, if the arbitration panel believes that such negotiations could prove fruitful. Even when not formally recessed for “negotiations,” the arbitration hearing itself contains elements of strategy and negotiations.
Uncontradicted evidence in the record before the FOIC documents that a TNA arbitration does not oper
This description comports with the general understanding of how compulsory binding interest arbitration hearings are usually conducted. One outside commentator has observed that the theory undergirding last best offer arbitration is that “the logic of the procedure would force negotiating parties to continue moving closer together in search of a position that would be most likely to receive neutral sympathy. . . . Flexible procedures of this kind, clearly designed to encourage voluntary settlements prior to, during and even after the completion of the hearing, are obviously a. hybrid of mediation and arbitration. . . . Flexible final-offer procedures . . . almost inevitably result in a proceeding which is known as mediation-arbitration, often called simply ‘med-arb’. . . . Ordinary interest arbitration is normally a somewhat judicial procedure in which the neutral [arbitrator] takes evidence and then drafts the parties’ ‘agreement’ in the loneliness of his own study. In med-arb [however] the neutral
These operational characteristics of compulsory arbitration under the TNA persuade us 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. Because the FOIC order in this case determined that Stack should have been permitted to attend the entire arbitration hearing, and ordered that similar hearings in the future likewise be open to the public in their entirety, the FOIC’s unconditional order was improper as a matter of law.
We note that the TNA permits each party, in its presentations to the arbitral board, “to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its” last best offer. General Statutes § 10-153Í (c) (2). In aid of this evidentiary process, the arbitrators have the “power to administer oaths and affirmations and to issue subpoenas requiring the attendance of witnesses.” General Statutes § 31-108; see General Statutes § 10-153f (d). Thus, the arbitration hearing also provides an opportunity for the parties to create an evidentiary record on which the arbitrators can rely in making their final
The judgment of the Appellate Court is affirmed.
In this opinion Callahan and Palmer, Js., concurred.
General Statutes § l-18a provides in relevant part: “definitions. As used in this chapter, the following words and phrases shall have the following meanings, except where such terms are used in a context which clearly indicates the contrary:
“(a) ‘Public agency’ or ‘agency’ means any 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, com
“(b) ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include . . . strategy or negotiations with respect to collective bargaining . . . .”
General Statutes § 1-21 provides in relevant part: “meetings of government agencies to be public. . . . (a) The meetings of all public agencies . . . shall be open to the public. . . .” The parties do not dispute that the state arbitration panel is a public agency so we do not reach this issue.
General Statutes § l-21i provides in relevant part: “denial of access to public records or meetings, appeals. . . .
“(b) (1) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, l-20a and 1-21 to l-21k, inclusive, may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. ...”
General Statutes § 4-183 provides in relevant part: “appeal to superior court, (a) A person who has exhausted all administrative remedies
Even though the proceedings at issue here long since have concluded, and hence there is nothing to which a remand could be directed, the appeal is not moot because of the continuing order to the plaintiffs to conduct future negotiations in accordance with the FOIC order under challenge in this appeal. As a result, the justiciable question before us relates to the plaintiffs’ future negotiations under the TNA, not to whether Stack was wrongly denied admission to any part of the arbitration hearing held on December 9,1990. The concern expressed in part III of the concurring opinion apparently is grounded in a misunderstanding of this procedural posture.
General Statutes § 10-153f provides in relevant part: “mediation and ARBITRATION OF DISAGREEMENTS. . . .
“(b) ... . On the one hundred sixtieth day prior to the budget submission date, the commissioner shall order the parties to report their settlement. If, on such one hundred sixtieth day, the parties have not reached agreement and have failed to initiate mediation, the commissioner shall order the parties to notify the commissioner of the name of a mutually selected mediator and to commence mediation. . . .
“(2) The chairperson of the arbitration panel or the single arbitrator shall set the date, time and place for a hearing to be held in the school district between the fifth and twelfth day, inclusive, after such chairperson or such single arbitrator is selected. At least five days prior to such hearing, a written notice of the date, time and place of the hearing shall be sent to the board of education and the representative organization which are parties to the dispute, and, if a three-member arbitration panel is selected or designated, to the other members of such panel. Such written notice shall also be sent to the fiscal authority having budgetary responsibility or charged with making appropriations for the school district, and a representative designated by such body may be heard at the hearing as part of the presentation and participation of the board of education. At 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 for the school district shall be heard regarding the financial capability of the school district, unless such opportunity to be heard is waived by the fiscal authority. The nonappearance of the representative shall constitute a waiver of the opportunity to be heard unless there is a showing that proper notice was not given to the fiscal authority. The chairperson of the arbitration panel or the single arbitrator shall preside over such hearing.
“(3) The hearing may, at the discretion of the arbitration panel or the single arbitrator, be continued but in any event shall be concluded within twenty-five days after its commencement.
“(4) After hearing all the issues, the arbitrators or the single arbitrator shall, within twenty days, render a decision in writing, signed by a majority of the arbitrators or the single arbitrator, which states in detail the nature of the decision and the disposition of the issues by the arbitrators or the single arbitrator. The written decision shall include a narrative explaining the evaluation by the arbitrators or the single arbitrator of the evidence
“(d) The commissioner and the arbitrators or single arbitrator shall have the same powers and duties as the board under section 31-108 for the purposes of mediation or arbitration pursuant to this section, and subsection (c) of section 10-153d, and all provisions in section 31-108 with respect to procedure, jurisdiction of the superior court, witnesses and penalties shall apply. . . .”
The GEA later asked to be made a party to the proceedings before the FOIC; the FOIC granted that request.
The parties do not dispute that the arbitration panel convened under the TNA is a public agency for purposes of the meeting requirement of § 1-18a (b).
Arbitration under § 10-153f also commences upon the legislative veto of a negotiated contract; see General Statutes § 10-153d (c); or on the fourth day following the end of mediation. General Statutes § 10-153f (c) (1).
In interpreting a nearly identical statute, General Statutes § 7-473c, this court noted that the “primary emphasis of the legislation was to induce settlement of disputes Ay negotiation under the impetus that the most reasonable proposal would probably gain acceptance by the arbitrators.” (Emphasis added.) Carofano v. Bridgeport, 196 Conn. 623, 635, 495 A.2d 1011 (1985).
The statute specifically contemplates the presentation of certain financial data. General Statutes § 10-153f (c) (2) provides in relevant part: “At the hearing a representative of the fiscal authority having budgetary responsibility or charged with making appropriations for the school district shall be heard regarding the financial capability of the school district, unless such opportunity to be heard is waived by the fiscal authority. The nonappearance of the representative shall constitute a waiver of the opportunity to be heard unless there is a showing that proper notice was not given to the fiscal authority.”
Concurrence Opinion
concurring in part, and dissenting in part. I agree with the majority that the judgment of the Appellate Court should be affirmed because the freedom of information commission (FOIC) order in this case improperly required the “last best offer” arbitration hearings to be open to the public in their entirety. I disagree, however, with the majority’s reservation of the issue of “the validity of a more narrowly tailored FOIC order that requires open hearings only with respect to evidentiary presentations and permits executivesessions for discussion and argument about the contents of the parties’ last best offers.” In my view, “last best offer” arbitration proceedings under the Teacher Negotiation Act do not fall with the definition of “meeting” as that term is used in General Statutes § l-18a (b), and the public may be excluded from such proceedings in their entirety.
First, I think that the certified question, which asks whether binding interest arbitration proceedings “fall within the exemption from public disclosure contained in General Statutes § l-18a (b)” (emphasis added) is analytically incorrect, and that the majority builds on that analytical error when it refers to the “statutory exclusion from the open meeting requirement contained in § l-18a (b).” Section l-18a is the definitional section of the Freedom of Information Act (FOIA). Thus, it is the section that determines whether something is a meeting in the first instance, not whether something is excluded from “the open meeting requirement.” The question in this case is whether the arbitration proceedings come within the definition of “meeting” in § l-18a (b) and are, therefore, covered by the FOIA in the first instance, not whether they are otherwise covered proceedings that are exempted from the open meeting requirement.
I agree that, in construing the definitions contained in § l-18a, we do so in light of the general principle of openness embodied by the FOIA. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 551, 436 A.2d 266 (1980). I disagree, however, that that principle applies with the same force under § l-18a as it does under General Statutes § 1-19 (b). See Rules Committee of the Superior Court v. Freedom of Information Commission, 192 Conn. 234, 472 A.2d 9 (1984); Connecticut Bar Examining Committee v. Freedom of Information Commission, 209 Conn. 204, 550 A.2d 633 (1988); Board of Education v. Freedom of Information Commission, 213 Conn. 216, 566 A.2d 1362 (1989), affirming Board of Education v. Freedom of Information Commission, 41 Conn. Sup. 267, 566 A.2d 1380 (1988); Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 591 A.2d 395
II
The language at issue in this case is as follows: “ ‘Meeting’ means any hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has . . . control [or] jurisdiction .... ‘Meeting’ shall not include . . . strategy or negotiations with respect to collective bargaining . . . .” General Statutes § l-18a (b). This language, taken alone, gives very little guidance on how to decide this case. Both parts of the definition—what “meeting” “means” and what it “shall hot include”— are put in very broad terms. In this connection, I do not think that the use of the phrase “strategy or negotiations” was meant to be a limitation on the meaning of “collective bargaining,” but, as I explain below, was meant to be an expansive phrase—in effect, to signify that the legislature meant to cover all of the aspects— both intraparty (strategy) and interparty (negotiations)—of the collective bargaining process, and everything in between.
Although the specific statutory language, as applied to the facts of this case, sheds little light on how to decide this case, the legislative history is very illuminating. The legislator who presented the amendment to
This reading of the legislative history is also consistent with the dictionary definitions of “strategy” and “negotiations” that are the most appropriate to the subject of collective bargaining. Those definitions are, in my view, as follows.
Strategy is defined as “the art of devising or employing plans or stratagems.” (Emphasis added.) Webster’s Third New International Dictionary. This suggests that strategy goes beyond devising to include the implementation of the plan or stratagem devised. Thus, it would
Negotiation is defined as “the action or process of negotiating,” and negotiate is variously defined as: “to communicate or confer with another so as to arrive at the settlement of some matter: meet with another so as to arrive through discussion at some kind of agreement or compromise about something”; “to arrange for or bring about through conference and discussion: work out or arrive at or settle upon by meetings or agreements or compromises”; and “to influence successfully in a desired way by discussions and agreements or compromises.” Webster’s Third New International Dictionary. These definitions go beyond the mere “quid pro quo” part of the negotiation process, and would include the entire presentation during the arbitration process.
In addition, the fact that the statute does not explicitly mention “mediation” supports this broad reading. It would be difficult to conclude that the process of mediation, which is essentially a process of negotiation between the principals aided by a mediator, was not meant to be excluded by the legislature in its statutory formulation of what a “meeting” does not include. This suggests, therefore, that, consistent with the legislative history, the legislature meant the phrase “strategy or negotiations with respect to collective bargaining” to be a unitary phrase, and to be broadly con
The majority asserts that “[h]ad the legislature intended a broader exclusion, it could have excluded ‘collective bargaining’ without limitation, or it could have excluded ‘collective bargaining, including but not limited to strategy and negotiations relating thereto.’ ” Although I agree that this language would also carry the meaning I ascribe to the language that the legislature did enact, the fact that the legislature could have phrased its intention differently is essentially irrelevant. Our task in statutory interpretation is to determine what the legislature meant by the language it did use. With judicial hindsight it is always possible to construct clearer language that would have better conveyed the legislature’s intent, particularly with respect to a factual situation that the legislature might not have specifically contemplated. In short, I “see no justification to thwart the legislature’s purpose simply because that purpose could have been stated more clearly.” Frillici v. Westport, 231 Conn. 418, 436, 650 A.2d 557 (1994).
My conclusion that the last best offer arbitration proceeding does not constitute a meeting within the meaning of the FOIA is also consistent with the record in this case. The majority aptly describes the process of last best offer arbitration as a combination of mediation and arbitration that “ ‘force[s] negotiating parties to continue moving closer together in search of a position that would be most likely to receive neutral sympathy.’ ” That this “ ‘[flexible [procedure is] clearly designed to encourage voluntary settlements prior to, during and even after the completion of the hearing’ ” supports my broad reading of the statutory language. The witnesses who testified before the FOIC hearing officer described the collective bargaining process as a continuum, consisting of negotiation, mediation and
The majority’s reservation of the issue of whether the “evidentiary presentations” may be subject to an FOIC open meeting order is unworkable in the context of this kind of arbitration. First, it assumes that part of the arbitration proceedings can fit within the statutory definition of “meeting” while the remainder falls without. It is unrealistic to slice up the proceeding that way, and I see no basis for it in the language or purpose of the statutory definition of “meeting.” Any attempt to separate the “evidentiary presentations” from the argument in support of various last best offers in such proceedings would simply require too fine a cut for the parties and arbitrators to achieve. Although such a delineation may be possible in a formal judicial hearing, such a division is inconsistent with what the record discloses regarding how this type of arbitration works. It does not appear to me that there is, or can be, a clearly defined line between argument and evidence in the “med-arb” process as described by the majority.
Finally, although I agree with the judgment of the majority affirming the Appellate Court, I suggest that the majority has established a procedural hurdle not previously placed before citizens seeking information through the FOIC. The majority concludes that, since Stack asked to attend the entire arbitration proceeding, and the FOIC ordered the entire arbitration proceeding open, because at least part of the proceeding, namely, everything except the evidentiary presentation, does not have to be open, the majority need not consider whether the remainder, namely, the evidentiary presentation, must or need not be open. The premise of this conclusion, however, is simply that Stack made too broad a request.
Thus, had Stack asked to attend only the evidentiary portions of the proceedings, the majority would be faced squarely with deciding whether she had the right to do so. Because she asked to attend the entire proceeding, however, the majority has declined to decide whether she is entitled to attend a certain part of it. When faced with such issues in the past, we have delineated what portions of the information requested were and were not public under the FOIA and remanded for further proceedings. See West Hartford v. Freedom of Information Commission, 218 Conn. 256, 588 A.2d 1368 (1991).
“As a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions.” Perkins v. Freedom of Information Commission, 228 Conn. 158, 167, 635 A.2d 783 (1993). Just as we determined in Perkins that “[i]t would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for
In sum, I would affirm the judgment of the Appellate Court on the ground that the last best offer arbitration proceedings in this case were not within the definition of “meeting” contained in § l-18a (b).
The majority points to § 1-19 (b) (9), asserting that “the legislature has exempted from public disclosure not all documents relating to collective bargaining, but only ‘records, reports and statements of strategy or negotiations with respect to collective bargaining.’ ” In my view, this conclusory statement begs the question. Based on my analysis of the legislative history, “records, reports and statements of strategy or negotiations with respect to collective bargaining” is also meant to cover the waterfront on collective bargaining, not narrow the field.
Dissenting Opinion
dissenting. The issue before this court is whether the people of the town of Glastonbury, and indeed the public at large, have a right to know what transpires before a formal arbitration proceeding that will have a direct effect upon the town’s public education and the costs of operating the public schools. In my view, the Freedom of Information Act (FOIA)
I begin my analysis with the principles that not only serve as the theoretical underpinnings of the FOIA, but also govern our interpretation of the act and our application of its provisions. In Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992), this court unanimously held that “the general rule under the [FOIA] is disclosure . . . .” The FOIA “expresses a strong legislative policy in favor
Justice Borden, in his concurring and dissenting opinion, and the majority profess to adhere to these beneficent purposes of the FOIA. In practice, however, these justices narrowly construe the FOIA. The concurring and dissenting opinion would keep the entire proceedings before the arbitration panel from public scrutiny. The majority, which addresses only whether the evidence of the last best offers submitted by the parties is available to the public, concludes that it is not. These interpretations of the FOIA serve only to undermine and weaken its provisions.
All aspects of collective bargaining are not, as the concurring and dissenting opinion would hold, exempt
Nevertheless, I do not agree with the conclusion that the majority proceeds to draw from its interpretation of this language. The majority holds that the public does not have the right to attend arbitration hearings in which the parties present last best offers. The majority’s reasoning on this point is, at best, tenuous. It begins with a characterization of the TNA arbitration proceedings that is not supported by anything in the record or in extrinsic sources, and concludes 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.” I strongly disagree with both the majority’s premise and the conclusion that it draws therefrom.
The majority, under the guise of interpreting the “underlying realities of the TNA process,” declares that arbitration conducted pursuant to General Statutes § 10-153Í “does not operate as a typical quasi-judicial process, but rather as a stylized or ritualized mediated negotiation process.”
The majority’s interpretation of the arbitration proceeding as “mediated negotiation” is wholly inconsistent with this statutory scheme. The parties only reach the final step of arbitration after they have attempted mediation unsuccessfully. Unlike the mediation process, where the statute expressly contemplates that each side will make “confidential communication” to the private
Moreover, there is nothing in the record to support the majority’s characterization of the arbitration process. Although it is true that each side may change the substance of its “last best offer” between the beginning of the hearing and its conclusion, this fact alone does not suggest that the arbitrators have any involvement other than as neutral decision makers. Indeed, there is evidence in the record to the contrary. Donald J. Deneen, one of the three arbitrators who served on the arbitration panel in this case, testified before the freedom of information commission (FOIC) that each side caucuses privately and decides what its “last best offer” shall be. Deneen indicated that the arbitrators are not involved in these decisions: “The offers are decided by each side. They present their offers to us.” (Emphasis added.) Moreover, Deneen indicated that the mediation procedures and arbitration procedures are completely distinct from one another. As he explained, “we’re not involved until they have gone through the time frame of the mediation phase of the process.” This version of events, and of the nature of the arbitration hearing that was conducted in this case, is fully supported by the findings and conclusion of the FOIC, which determined that neither strategy nor negotiations occurred during the arbitration proceeding in this case.
Finally, the professional literature that addresses impasse resolution procedures contradicts the approach taken by the majority. Indeed, this literature universally indicates that when mediation has failed and the dispute has proceeded to arbitration, the resulting proceeding is quasi-judicial in character. In interest arbitration, the arbitrators “endeavor to give the parties a fair and impartial hearing.” D. Dilts & W. Walsh, Collective Bargaining and Impasse Resolution in the Public Sector (1988) p. 118. Under such a scheme, “issues not resolved through negotiation, fact-finding, or mediation are required to be submitted to an arbitration board whose decision is final and binding.” J. Grodin, D. Wollett & R. Alleyne, Collective Bargaining in Public
The majority quotes a single commentator as support for its interpretation of “the general understanding of how compulsory binding interest arbitration hearings are usually conducted.” It quotes that commentator for the proposition that the neutral party “customarily works out solutions in the presence of and with input from the parties.” C. Rehmus, “Interest Arbitration,” in Portrait of a Process: Collective Negotiations in Public Employment (1979) p. 220. That commentator, however, is not describing arbitration. Rather, that commentator is expressly referring to a completely different procedure known as mediation-arbitration. “Mediation-arbitration (med-arb) combines the two dispute settlement techniques of mediation and arbitration, just as the name implies. Under med-arb, the mediator becomes the arbitrator with binding author
Most importantly, the very narrow scope of the FOIA’s exemption for strategy or negotiations dovetails with the necessity of public accountability for any decisions reached with regard to teacher contracts. If a local board of education negotiates with the teachers union in hopes of reaching a settlement, the FOIA exemption provides that those negotiations need not be disclosed. That secrecy in government, however, can be tolerated because if the negotiations do, in fact, result in a settlement, the board of education will be
Neither the majority nor Justice Borden, in his concurring and dissenting opinion, attaches significance to this fundamental need for accountability. According to the majority, the public can be prevented from learning what type of contract offer the board of education has made. Indeed, the majority does not make clear whether the public would ever be allowed to discover this information, even after a new contract has been reached. According to the concurring and dissenting opinion, the public does not have the right to know what type of contract offer the board of education has made, or what types of evidence the board presented in support of that offer. These approaches allow government, and specifically the local board of education, to
I respectfully dissent.
General Statutes §§ l-18a and 1-21.
General Statutes § 10-153a et seq.
I confess that I am not entirely certain what it means for a process of negotiation to be “stylized or ritualized.”
The three-tiered process also applies to administrators. See General Statutes § 10-153Í (b). For convenience, I refer only to teachers.
General Statutes § 10-153f (b) provides that “[i]n any civil or criminal case, any proceeding preliminary thereto, or in any legislative or administrative proceeding, a mediator shall not disclose any confidential communication made to such mediator in the course of mediation unless the party making such communication waives such privilege.”
The decision of the FOIC included the following factual findings and legal conclusions:
“13. It is found that the parties to a contract dispute can negotiate an agreement on their own with respect to any of the disputed issues, prior*731 to the determination of the respondent panel and that any stipulation of the parties overrides the ‘last best contract offer’ delivered at the hearing.
“14. It is found that the respondents failed to prove, in this ease, that collective bargaining negotiations actually occurred during the hearing in question.
“15. It is therefore concluded that although the respondent panel’s hearings may and often do lead to further negotiation, the actual arbitration hearing in this case, during which the parties offered evidence and argument, constituted a meeting within the meaning of [General Statutes] § l-18a (b), which should have been open to the public pursuant to [General Statutes] § 1-21 . . . .” (Emphasis added.)
“[J]udicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.;and . . . the scope of review is limited. . . . Accordingly, we must decide, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency]. . . .” (Citations omitted; internal quotation marks omitted.) Ottochian v. Freedom of Information Commission, supra, 221 Conn. 397.
The majority appears to rely completely on the commentator’s assessment that “[fjlexible final-offer procedures . . . almost inevitably result in a proceeding which is known as mediation-arbitration . . . .” C. Rehmus, supra, p. 219. Although the commentator’s analysis on this point is not entirely clear, the fact remains that the commentator, in describing a process in which “the neutral [party] customarily works out solutions in the presence of and with input from the parties,” is referring to a pure medarb proceeding. Id., p. 220. That commentator notes that in pure med-arb, the parties jointly select a single person to act as their mediator and arbitrator. Id. This requirement of a single person to act in both roles is crucial, for the “parties are thus able to assure themselves that the neutral [party] has considered all of their arguments before a final decision is made.” Id.
Although § 10-153f (c) (4) provides that the arbitrator or arbitrators must render a written decision that “states in detail the nature of the decision and the disposition of the issues” and that includes “a narrative explaining the evaluation ... of the evidence presented for each item,” that statute does not expressly require the written decision to enumerate the last best offers submitted by the parties during the arbitration hearing. Accordingly, the plain language of the statute does not make clear whether a written decision by the arbitrator or arbitrators must contain this information.
I paraphrase Henry Steele Commager, who wrote: “ ‘The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.’ ” Environmental Protection Agency v. Mink, 410 U.S. 73, 105, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973) (Douglas, J., dissenting), quoting The New York Review of Books, Oct. 5, 1972, p. 7; see Gifford v. Freedom of Information Commission, 227 Conn. 641, 676, 631 A.2d 252 (1993) (Berdon, J., dissenting).
I do not understand how the majority can decide only whether last best offers must be disclosed, without also deciding whether other evidence submitted by the parties during the arbitration proceeding must also be disclosed. Although the proceedings at issue in this case have long since been concluded, the majority justifies the decision that it does render “because of the continuing order to the plaintiffs to conduct future negotiations in accordance with the FOIC order under challenge in this appeal.” If the majority must decide for the future whether last best offers must be disclosed, surely it must also decide for the future whether other relevant evidence presented by the parties during that hearing must also be disclosed. No arbitration hearing conducted pursuant to the TNA consists only of the presentation of last best offers. Rather, in accordance with § 10-153Í (c) (2) and (4), the parties also submit supporting evidence, including evidence of financial capability, working conditions and the like. Though the majority insists that it needs to decide this case in order to provide guidance for the future, it fails to provide such guidance. Indeed, as a result of this decision, arbitrators in the future will not know whether they may keep the entire arbitration proceeding secret, or only a part of it.