9830294, Ballard - Ruling R's Motion

Commission on Human Rights and Opportunities, ex rel. Chillon Ballard, Complainant CHRO No. 9830294
v.
Cheshire Board of Education and : Dr. Thomas Neagle, Respondents

May 31, 2000

RULING ON THE RESPONDENTS’ MOTION TO DISMISS
GENERAL STATUTES § 46A-75 CLAIMS

Almost one year ago, the Respondents, the Cheshire Board of Education and Dr. Thomas Neagle, filed a Motion to Dismiss the Complainant, Chillon Ballard’s, Affidavit of Illegal Discriminatory Practice (hereinafter, the "Complaint"), alleging that the Connecticut Commission on Human Rights and Opportunities (hereinafter, the "Commission") does not have jurisdiction over discrimination in public schools. I granted that motion in part by dismissing three of the four claims and found: (1) that the Commission does not have jurisdiction over claims pursuant to General Statutes § 10-15c; (2) that public schools are not public accommodations pursuant to General Statutes § 46a-64(a); and (3) that the Commission does not have concurrent jurisdiction with the State Board of Education over discrimination claims against public schools pursuant to General Statutes §§ 46a-58 and 46a-64(a)(2). The one claim remaining, which alleges a violation of General Statutes § 46a-75, had not been briefed by any of the parties in connection with the previous motion and is now the subject of this second Motion to Dismiss.

The issues presented are: (1) whether General Statutes § 46a-75 applies to public schools thereby giving the Commission jurisdiction over the Complaint; and (2) if the Commission does not have jurisdiction, whether the Commission through the undersigned human rights referee has authority to transfer this matter to the State of Connecticut’s Board of Education.

For the reasons hereinafter set forth, it is concluded that: (1) General Statutes § 46a-75 does not apply to public schools, and therefore the Commission is deprived of jurisdiction over this Complaint; and (2) I do not have the authority to transfer this matter to the State Board of Education.

Accordingly, the Motion to Dismiss is GRANTED.

Facts

The facts as alleged in the Complaint are set forth in detail in Ruling I. Essentially, the Complainant, a former student at the Respondents’ public high school, claims that the Respondents discriminated against him on the basis of his race in their disparate discipline of him and a white student subsequent to a physical altercation between them, as well as in their failure to address his reports to Respondent Neagle of his repeated racial harassment by that white student. He subsequently withdrew from the school.

Standard

In reviewing a motion to dismiss, a tribunal must construe those facts alleged or implied in the complaint in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089, 1097 (1998). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991, 993 (1983); Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260, 262 (1954).

Discussion

1. Whether General Statutes § 46a-75 Applies to Public Schools

As set forth in Ruling I, the Commission has jurisdiction over complaints alleging a discriminatory practice. General Statutes § 46a-82(a). A "discriminatory practice" is defined by § 46a-51(8) to include violations of §§ 46a-70 to 46a-78. Therefore, if § 46a-75 is found to be applicable to acts of public schools, such as the Respondents, then the Commission maintains jurisdiction over this complaint, and the Respondents’ Motion to Dismiss must be denied.

The Respondents argue that General Statutes § 46a-75 does not cover events that occurred in a public school, and therefore the Complaint must be dismissed. The Commission counters that although there is no legislative history on the subject, the plain language of the statute evidences that public schools are, in fact, intended to be included, and this complaint should not be dismissed. Because there is no law from a higher authority which has ruled on this issue, this analysis will begin with a plain reading of the statute.

Section 46a-75, entitled, "Discrimination in educational and vocational programs prohibited" provides:

1. All educational, counseling, and vocational guidance programs and all apprenticeship and on-the-job training programs of state agencies, or in which state agencies participate, shall be open to all qualified persons,without regard to race, color, religious creed, sex, age, national origin, ancestry, mental retardation, learning disability or physical disability, including, but not limited to, blindness.

2. Such programs shall be conducted to encourage the fullest development of the interests, aptitudes, skills, and capacities of all students and trainees, with special attention to the problems of culturally deprived, educationally handicapped, learning disabled, economically disadvantaged, or physically disabled, including, but not limited to, blind persons.

3. Expansion of training opportunities under these programs shall be encouraged so as to involve larger numbers of participants from those segments of the labor force where the need for upgrading levels of skill is greatest. Id.

The Connecticut Supreme and Appellate Courts have stated that when the words of a statute are plain and unambiguous, no further interpretive guidance is needed because it is assumed that the words themselves express the intention of the legislature. Caltabiano v. Planning and Zoning Com’n of Town of Salem, 211 Conn. 662, 666, 560 A.2d 975, 977 (1989); Lunn v. Cummings and Lockwood, 56 Conn.App. 363, 371, 743 A.2d 653, 659 (2000).

The plain words of this statute do not mention "public schools," or "local boards of education" but instead refer to "All educational, counseling, and vocational guidance programs and all apprenticeship and on-the-job training programs of state agencies," or "in which state agencies participate" in subsection (a)[emphasis added]. The above-referenced programs of state agencies do not appear to the undersigned to contemplate public schools and local boards of education. The Commission, argues, however, that it is the words "in which state agencies participate" within subsection (a) which contemplate the inclusion of public schools because the State Board of Education by law supervises all educational programs run by local and regional boards of education, and thereby "participates" in town educational programs. Furthermore, the State Board of Education investigates and holds hearings on complaints against such local boards of education, which further shows its participation in local educational programs.

This analysis is clouded, however, by subsection (c), which makes reference to "training opportunities under these programs" and encourages involving "larger numbers of participants from those segments of the labor force.[emphasis added]" A statute must be interpreted as written and considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. Babes v. Bennett, 247 Conn. 256, 261-62, 721 A.2d 511, 514 (1998). I do not interpret this language within subsection (c), which appears to reference educational programs related to employment, to apply to local school systems, but instead I can only infer the intended meaning to encompass apprenticeship or job-training programs which would likely involve state agencies, as referenced in subsection (a).

However, the "analysis of a statute is not limited solely to the words of the statute. . . . [One] must also look. . . to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation." Shew v. Freedom of Information Com’n, 245 Conn. 149, 166-67, 714 A.2d 664, 674 (1998). Section 46a-75 was first brought before the state legislature in 1969. There, Senator Jackson introduced this piece of legislation to the Senate as follows:

The legislative intent shown by this passage leads me to conclude that § 46a-75 is intended to apply solely to state agencies in their educational programs related to employment training, and not in connection with their supervision of public school systems.

Furthermore, in a review of the history of this statute, § 46a-75 was formerly known as § 4-61h, which had been a part of Chapter 48 of the General Statutes, entitled "Organization of State Agencies." It was transferred to Chapter 814C, entitled, "Human Rights and Opportunities," as part of the recodification that took place in 1980 to consolidate all of the statutes related to discrimination in one place. Section 4-61h was transferred along with 8 other statutes, all applicable to state agencies, and now re-codified as General Statutes §§46a-70 through 46a-78. In fact, a review of the titles of these transferred statutes, all make reference to their applicability to state agencies. See § 46a-70 ("Guarantee of equal employment in state agencies."); § 46a-71 ("Discriminatory practices by state agencies prohibited"); § 46a-72 ("Discrimination in job placement by state agencies prohibited"); § 46a-73 ("Discrimination in state licensing and charter procedures prohibited"); § 46a-74 ("State agencies not to permit discriminatory practices. . .")" § 46a-76 ("Discrimination in allocation of state benefits"); § 46a-77 ("Cooperation with commission required of state agencies"); and § 46a-78 ("Annual agency reports to governor. Review by commission"). "When the language used within a statute is doubtful in meaning, the true meaning may be ascertained by considering it in the light of all of its provisions, as well as its title." State v. Ryan, 48 Conn.App. 148, 157, 709 A.2d 21, 27 (1998); certification denied by 244 Conn. 930, 711 A.2d 729 (1998); certiorari denied by 525 U.S. 876 (1998). The title of legislation when it is acted upon by the legislature is significant and often a valuable aid to determine legislative intent. State v. State Employees’ Review Board, 239 Conn. 638, 649, 687 A.2d 134, 141 (1997). Based on the above, it appears that the legislative intent behind General Statutes § 46a-75, which is a part of a group of statutes applicable to state agencies, was that it also apply solely to state agencies.

Additionally, General Statutes § 46a-75 is almost always referred to as part of the above-listed group of statutes applicable to state agencies. Section 46a-51(8), which defines discriminatory practice, refers to the statute as part of that grouping. Section 46a-69, entitled "Discriminatory practices by state," again defines a discriminatory practice to include violations of this group ("it shall be a discriminatory practice to violate any of the provisions of sections 46a-70 to 46a-78, inclusive"). Section 46a-99, entitled "Discriminatory state practice," also refers to the group of statutes, and provides individuals alleging violations of this group a private right of action. In other words, individuals claiming violations by state agencies of these statutes do not even need to exhaust their administrative remedies by having their complaints addressed by the Commission first, but instead may bring their claims directly to court. Fritz v. Guida-Fenton Ophthalmology Associates, 1997 WL 614592, No. CV 970398021S, (Conn.Super. September 18, 1997)(Silbert, J.). The effect of this statute is an explicit waiver of the state’s sovereign immunity. De Hass v. State, 1999 WL 669811; No. CV 9969640S; (Conn.Super. August 17, 1999) (Stengel, J.). If this statute was made applicable to local and regional boards of education due solely to the state’s supervisory involvement, then the state’s waiver would be providing a direct right of action against public schools in contravention of the elaborate procedure set forth in § 10-4b for discrimination in public schools in violation of § 10-15c, as discussed in Ruling I.

It is also not insignificant that the superior court in Fritz, supra, summarizes Section 46a-99 and its grouping of §§ 46a-70 to 46a-78 as applicable "when the allegedly discriminatory employer is a state agency [emphasis added]." The case Tsimbidaros v. State, 1996 WL 63020, No. 0128051, (Conn.Super. February 1, 1996)(Kulawiz, J), also summarizes this grouping as applicable to the "failure to provide for equal employment opportunity in state agencies [emphasis added]." I am left to conclude that § 46a-75 applies to state agencies and their educational programs related to employment-related training. Public schools are therefore not within the scope of this statute.

A local board of education is not a state agency. Section 4-166(1), the definition section of the Connecticut Administrative Procedure Act, defines "Agency" to specifically exclude, "town or regional boards of education." Even before this statutory exclusion, the Supreme Court had also ruled the same to be true. See City of Bridgeport v. Agostinelli, 163 Conn. 537, 550, 316 A.2d 371, 377 (1972). Therefore, because it is here determined that General Statutes § 46a-75 applies only to state agencies and their employment-training programs, and because local and regional boards of education are not state agencies, the allegations of the Complainant cannot be asserted against the Respondent principal and Respondent town board of education pursuant to § 46a-75.

Separate and apart from legislative intent, the Commission’s own regulations appear to also consider § 46a-75 and the other statutes in its group to apply to employment-related educational programs sponsored by the state through its agencies, rather than to public schools. Section 46a-68(a) requires all state agencies to develop an affirmative action plan in coordination with the Commission, and to provide equal employment opportunities in compliance with §§ 46a-70 to 46a-78. The Commission has developed regulations governing these requirements. Section 46a-68-1 of the Regulations of Connecticut State Agencies (hereinafter, the "Regulations") sets forth the purpose of the regulations as to

Section 46a-68-3 provides that the authority for "promotion and enforcement of equal employment opportunities is contained in . . .section 46a-75. . ." Therefore, the Commission’s own regulations give further support for the conclusion that § 46a-75 cannot apply to public schools.

Aside from the plain language of § 46a-75, its legislative history, and its interpretation in the context of the state agency group of statutes by the courts and the Commission’s own regulations, the Commission, itself, through Human Rights Referee Lara L. Manzione, has recently issued a decision, Alston v. East Haven Board of Education, CHRO #9830205 (May 3, 2000)(Manzione, Human Rights Referee), based on strikingly similar facts which reaches the same conclusion—that § 46a-75 does not apply to public schools. While the Commission argues that such a decision is not binding on the instant matter, Referee Manzione’s extremely thorough and well-reasoned decision is highly persuasive. In Alston, an elementary school student alleged that he endured racial harassment from classmates and was not provided appropriate educational services by the Respondent board of education due to his race/color and his mother’s sexual orientation, in violation of General Statutes § 46a-75, in addition to other statutes. The Respondent moved to dismiss on the basis that the Commission did not have jurisdiction. Referee Manzione pointed out, as set forth in Ruling I, that:

Referee Manzione also points to the reference to § 46a-75 in § 46a-68-3 of the Regulations as further support that the statute applies solely to state apprenticeship and training programs and dismisses the allegations pursuant to § 46a-75.

In Ruling I, I found that the Commission cannot have concurrent jurisdiction with the State Board of Education pursuant to §§ 46a-64(1) and (2), as well as 46a-58. That analysis applies equally to the claims alleged pursuant to § 46a-75. In the interpretation of statutes it is presumed that "laws are enacted in view of existing relevant statutes" and that "statutes are to be interpreted with regard to other relevant statutes." Bittle v. Commissioner of Social Services, 249 Conn. 503, 507, 734 A.2d 551, 554 (1999). "The legislature is presumed to have created a consistent body of law." Stickney v. Sunlight Const., Inc., 248 Conn. 754, 762, 730 A.2d 630, 634 (1999). Section 46a-75, was enacted as § 4-61h in 1969. Section 10-15c was enacted in 1978. Therefore, the legislature is presumed to know of the existence of 4-61h, under the jurisdiction of the Commission , and to recognize that it did not encompass claims against public schools, when it enacted a statute assigning the investigation and review of discrimination complaints against public schools to the State Board of Education. As pointed out in Ruling I, to rule otherwise would permit forum-shopping between two state agencies, duplication of efforts and a waste of valuable state resources.

Based on the above, the Motion to Dismiss is granted as to the Complainant’s remaining claims pursuant to § 46a-75 of the General Statutes.

2. Whether Authority Exists to Transfer this Matter to the State Board of Education

The Commission argues, in the alternative, that if it is determined that this agency does not have jurisdiction over the Complainant’s remaining claim, then this matter

The Commission points to the fact that although there are no statutes addressing any authority of an agency to make a transfer to another agency, there are three cases which do just that: a 1978 and a 1980 New Jersey Supreme Court case, Hinfey v. Matawan Regional Bd. Of Ed, 77 N.J. 514, 391 A.2d 899 (1978) and City of Hackensack v. Winner, 82 N.J. 1, 410 A.2d 1146 (1980); as well as a 1989 decision of this agency, CHRO, ex rel. Cynthia Watts v. Plaza Realty and Walter Fyler, CHRO No. 8710078, December 20, 1989, Thomas C. McNeill, Jr., hearing officer.

The Respondents oppose such a transfer as outside the authority of this tribunal and this presiding officer. I believe their reasoning is correct.

"Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon statutes." Sanford v. Clinton Public Schools, 54 Conn.App. 266, 270, 732 A.2d 827, 829 (1999), cert. denied, 251 Conn. 917, 740 A.2d 865 (1999). An administrative body must act strictly within its statutory authority. Liano v. City of Bridgeport, 55 Conn.App. 75, 83, 737 A.2d 983, 987 (1999); cert. denied, 252 Conn. 909, 743 A.2d 619 (1999). Administrative agencies, as tribunals of limited jurisdiction, cannot confer jurisdiction upon themselves. Stickney v. Sunlight Const., Inc., supra at 760. They cannot "modify, abridge or otherwise change statutory provisions, under which [it] acquire[s] authority unless the statutes expressly grant [it] that power." Second Injury Fund of the State Treasurer v. Lupachino, 45 Conn.App. 324, 344, 695 A.2d 1072, 1083 (1997).

There is no statutory provision applicable to this particular agency, or within the Connecticut Administrative Procedure Act, which grants administrative agencies or this agency, specifically, the authority to transfer a matter to another administrative agency. Of the statutes applicable to this agency, § 46a-84(b) grants human rights referees the authority to act as presiding officers over complaints and to conduct settlement negotiations. This statutory authority is further explained in the Commission’s own regulations. Presiding officers may rule on motions pursuant to § 46a-54-97, and are granted blanket authority to do what is necessary to address the complaint up to and through the public hearing pursuant to § 46a-54-101.

The ability to transfer a complaint to an entirely separate agency, upon motion, however, intrudes upon the jurisdiction and procedures of that separate agency over which this presiding officer has no authority. Unlike a judge of the superior court, who retains that status no matter in which court of the same level he or she may preside, my authority to preside over hearings is not transferable to any other administrative agency.

The Commission cites an over 20-year old, New Jersey Supreme Court case, Hinfey, supra, as an example of an agency that transferred a matter to another agency. That case is clearly distinguishable from the facts here. First, the state human rights agency had jurisdiction over that complaint, concurrent with the state department of education, because the public school respondent was specifically defined in the state statute as a public accommodation and a separate statute gave jurisdiction to the state department of education. See discussion in Ruling I at pages 9 and 15. The New Jersey court ruled that because both agencies had jurisdiction over the same matter, the human rights agency should transfer the matter to the department of education out of principles of comity and because the department of education had the expertise and authority to decide other aspects of the charges, in addition to the charges of discrimination. Hinfey, supra, at 907. "There is no reason, absent an occlusive statutory bar, for an administrative agency to be obtuse to the genuine concerns of other administrative agencies which possess concurrent jurisdiction over the same subject matter [emphasis added]." Id.

The same circumstances apply to the other New Jersey case cited by the Commission, City of Hackensack v. Winner, supra. There, two separate agencies both had concurrent jurisdiction to hear the same matter. The appellate court ruled that one of the agencies was better equipped to decide a particular issue, even though both agencies had jurisdiction to hear it. Id., at 32. It further decided that to avoid "races to decision" within both agencies, when complaints are filed in both agencies, out of principles of comity one of the agencies should defer or stay the complaint until the other one issued its findings, which would be binding on both agencies. Id., at 32-33.

Unlike the above cases, it is here determined that the State Board of Education and the Commission do not have concurrent jurisdiction, but that the Commission, the agency where the Complaint was filed, does not have jurisdiction at all. According to the New Jersey cases cited above, because I do not have jurisdiction over this complaint, I do not have the authority to transfer it to the agency with more expertise, nor do I have any ability to stay this matter as a lack of jurisdiction is not subject to change when the stay is lifted.

The Commission also cites a prior hearing officer’s decision of this agency, CHRO ex rel. Cynthia Watts v. Plaza Realty and Walter Fyler, supra in which the Commission transferred the matter to the Real Estate Commission, another state agency. Again, the facts are distinguishable. There, also, the Commission had jurisdiction over the matter, involving housing discrimination. Not only did it have jurisdiction, it conducted a hearing and issued a final decision in which it found the respondents had violated the law. It states in its orders of relief that the matter be referred to the Connecticut Real Estate Commission "for additional appropriate action by that agency." The order does not state who is responsible for referring the matter, or how it is to be "referred." In any event, it appears to be ordering either the Complainant or the Commission to file a complaint with a different state agency based on the findings in this decision. It is not "transferring" the matter under any special principle of comity to another agency’s concurrent jurisdiction, but simply imposing an additional sanction against the respondent. What is not left open, however, is that the main issue of discrimination has been decided by the Commission. Once it has determined that a person has violated the law, it then refers the matter to the licensing authority which would presumably further sanction the respondent real estate agent based on this decision.

Again, here it is determined that I do not have authority to decide this matter, and therefore cannot retain jurisdiction to transfer it. Without jurisdiction, I also cannot issue a final order to either the Complainant or the Commission to report my findings to the State Board of Education.

Even if I did find that I could, in fact, transfer this matter, along with the Commission’s file on to the State Board of Education, a review of their detailed procedures related to investigating complaints against local boards of education, reveals that the transfer would ultimately fail. As discussed in Ruling I, charges of discrimination in public schools are under the jurisdiction of the State Board of Education pursuant to General Statutes § 10-15c. Section 10-4b addresses the procedure to be used by the State Board of Education in reviewing complaints against the public schools. It provides that complaints against local or regional school districts may only be filed after first attempting to resolve the problem with the local or regional board of education, and may only be filed by residents, their parent or guardian, or the state board of education, itself. § 10-4b(a). After an internal review of the complaint, an investigation is conducted, and if the investigator finds that "there is reasonable cause to believe that a local or regional board of education has failed or is unable to make reasonable provision to implement the educational interests of the state," then the state board shall conduct a hearing. Id.

The State Board of Education has drafted extensive regulations detailing the process set forth in General Statutes § 10-4b, and rigid time periods that must be followed at each stage of processing of the complaint. First, the complaint must contain three things:

1. an indication that the complainant is an "eligible person" as defined by § 10-4b-1(n) of the Regulations;
2. a description of prior good faith efforts to resolve the complaint; and
3. the exact nature of the allegations which shall include reference to § 10-4a. Regulations § 10-4b-3. 

The Complainant’s complaint filed with the Commission does not contain these three items. Therefore, if I could transfer this matter, the Complainant would still have to initiate a new complaint with the State Board of Education.

After filing said complaint, the Commissioner of Education must determine whether the complaint is "substantial." Regulations § 10-4b-5. If it is not, then the complaint is dismissed. If it is, an investigation is ordered. Id. At this point, the respondent files an answer and the Commissioner’s investigator has 20 days to conduct an investigation from receipt of this answer. Regulations §10-4b-6. The Commissioner then must report to the State Board of Education: (1) findings of fact; (2) whether, "reasonable cause exists to believe that the board of education has failed or is unable to make reasonable provision to implement the educational interests of the state and whether a local governmental body or its agent may be responsible for such failure or inability; and (3) recommendations. Regulations § 10-4b-7. The Board then may either dismiss the complaint or order a public hearing. Regulations § 10-4b-8.

These very specific stages prohibit the undersigned, even if I did have the authority, to make a transfer of the Commission’s file. First, the Commission’s complaint does not contain the necessary items required by the State Board of Education’s complaint. Second, based on that complaint, the Commissioner is charged with making a determination of whether the complaint is "substantial." This finding must be made before the respondent is required to submit an answer. The investigation is timed to take place only upon receipt of the answer. The Commissioner cannot forward the complaint on to a public hearing without making a determination based on the investigation, and the Board cannot conduct a public hearing without receiving the report of the Commissioner, again, based on the investigation. There is no stage that I can forward the Complainant’s complaint on to the State Board of Education as its Regulations appear to make each step in the process dependent on the prior step, all of which lead back to the initial filing of the complaint. Based on these circumstances, the Complainant, if he is found to be an "eligible person," is the only party with the ability to initiate a complaint with the State Board of Education, as the Commission’s complaint and internal findings of reasonable cause are completely different than those of the State Board of Education. Therefore, even with the authority to transfer, the only place I could forward the matter would be the initial stage of filing the complaint—something only the Complainant is able to do. Based on the above, the Commission has no authority to transfer this matter to the State Board of Education.

Conclusion

For the foregoing reasons, the Respondents’ Motion to Dismiss is granted and the Complaint is hereby dismissed.
It is so ordered this 31st day of May, 2000.

Hon. Lisa B. Giliberto
Presiding Human Rights Referee

C:
Chillon Ballard
David M. Teed, Assistant Attorney General
Dr. Thomas Neagle
Cheshire Board of Education
Stephen M. Sedor, Esq.