0140203, Kennedy - Ruling re CHRO's Request


CHRO No. 0140203

Fed No. 16aa14051

Commission on Human Rights and Opportunities ex rel. :
Valerie Kennedy


Eastern Connecticut State University

January 28, 2005

Ruling re: Commission's request for reconsideration

The public hearing in this matter was held on diverse days in July and August 2004. The final decision was issued on December 27, 2004 dismissing the complaint. By motion dated and filed January 11, 2005, the commission moved for reconsideration and/or modification of the final decision. At least fourteen days have passed since the filing of the motion (Regs., Conn. State Agencies § 46a-54-87a) and neither the respondent nor the complainant filed a response. The motion is denied.

Section 46a-54-95a of the Regulations of Connecticut State Agencies provides that a final decision "may be reconsidered, reversed or modified in accordance with section 4-181a of the Connecticut General Statutes." Section 4-181a(a) provides that a decision may be reconsidered if there is an error of law or fact that should be corrected, if new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented during the public hearing, or for other good cause. Subsections 4-181a(b) and (c) provide that a final decision may be reversed or modified upon a showing of changed conditions or to correct a clerical error. The commission's motion and argument do not satisfy any of these criteria.

In its motion, the commission argued:

Page three of the Final Decision states, "Attached to the commission's brief was a copy of the respondent's response to the investigator's Schedule A request." This is incorrect, however. The schedule A responses were not attached specifically because such a document concededly would be evidence and not properly submitted with the brief. Rather, the respondent's answer to the complaint affidavit was attached to the brief. The answer is a pleading submitted under oath and sets forth the Respondent's response to the complaint allegations. Pleadings are not exhibits and need not be offered into evidence and this is not changed by the de novo nature of the public hearing. In fact, the Respondent apparently recognized this since it did not move to strike the complaint [sic] from CHRO's brief. Accordingly, there is no reason why the Referee cannot consider an answer of a respondent even if it is filed during the investigation and not offered as an exhibit at public hearing.

On page 3 of the final decision, the undersigned erroneously stated that the commission had improperly attached to its brief a copy of the respondent's Schedule A responses. In fact, the commission had not done so. The undersigned misread the commission's reference to the attachment in its brief. The attachment was actually an improperly attached answer that the respondent had filed in the pre-certification (and pre-contested case) investigative stage. Absent authority to the contrary, the undersigned's admonishment to the commission remains unchanged: pre-certification documents that were not post-certification pleadings or admitted exhibits cannot be attached to its brief for consideration in a final decision. To be a part of the record in a contested case for a final decision a document must be submitted during the post-certification, contested case phase of the proceeding, such as a pleading or an admitted exhibit. General Statutes § 4-177; Regs., Conn. State Agencies § 46a-54-96a. Parties must be given the opportunity "to respond, to cross-examine other parties, intervenors, and witnesses, and to present evidence and argument on all issues involved." General Statutes § 4-177c.

In its motion the commission offers no authority for its proposition that pre-certification, pre-contested case documents submitted to the commission's investigator constitute pleadings that need not be offered into evidence during a post-certification, contested case public hearing; and the undersigned is unaware of such authority. If, as the commission argued, the pre-certification answer can be attached to its brief simply because it was under oath, then that reasoning would apply to Schedule A responses that are also often submitted under oath. But, as the commission conceded, Schedule A responses cannot be attached a brief.

In its motion, the commission asserted "there is no reason why the Referee cannot consider an answer of a respondent even if it is filed during the investigation and not offered as an exhibit at public hearing." There is indeed a reason. It appears from the commission's brief that its use of the respondent's pre-certification answer was an attempt to challenge the credibility of statements by the respondent's witness. At a public hearing, the commission can challenge a witness's credibility, the respondent then has the opportunity to rehabilitate its witness, and the presiding referee has the opportunity to assess credibility. Such opportunities are not available through attachments to briefs. Pre-certification documents are not the evidentiary equivalent of post-certification pleadings, testimony or exhibits admitted at a public hearing.

I would further note that section 46a-54-86a of the Regulations of Connecticut State Agencies specifically requires the post-certification filing of an answer. Also, page 5 of the pre-certification answer was attached to the commission's post-certification Objection to Motion to Dismiss dated April 8, 2004. As stated on page 4 of the final decision, the final decision was "[b]ased upon a review of the pleadings, exhibits, testimony and transcripts, and an assessment of the credibility of the witnesses …." Further, even if the pre-certification answer were to be considered in its entirety, it would not affect the substantive reasons for which the complaint was dismissed.

Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Dr. Valerie Kennedy
Ms. Constance Belton Green
Joseph A. Jordano, Esq.
David L. Kent, Esq.