ZARELLA, J.
The dispositive issue in this reservation is whether the state board of education (state board), violated General Statutes § 10-223e (h)
The following undisputed facts and procedural history are relevant to our analysis. The state board has designated the school district of the city of Bridgeport (local school district) a low achieving school district under § 10-223e (c)(1)
The local board was established by the charter of the city of Bridgeport (charter), with all the powers of and duties imposed on boards of education under Connecticut and federal laws. See Bridgeport Charter, c. 15, § 2. Pursuant to the charter, the local board consists of nine members, who must be electors of the city of Bridgeport and serve four year terms. Id., at § 1(a). Elections for the local board are staggered so that, every two years, either four or five members of the local board are elected. See id., at § 1(b) and (c). The charter further provides that, in the event of any vacancy in the membership of the local board, the remaining members will elect a new member, of the same political party as the vacated member, for the balance of the term. Id., at § 1(d).
Prior to August 5, 2011, the local board was composed of Barbara Bellinger, the president, Leticia Colon, the vice president, Delores Fuller, the secretary, and Nereyda Robles, Thomas Cunningham, Thomas Mulligan, Maria Pereira, Bobby Simmons and Sauda Baraka. All members were elected by the electors of the city of Bridgeport. In 2011, four local board members, namely, Bellinger, Fuller, Robles and Cunningham, were at the end of their four year terms, and their positions were set to be filled no later than the November, 2011 Bridgeport municipal general election. The other five members,
In 2010, some members of the local board had sought and completed certain training offered by the Connecticut Association of Boards of Education. The first training session, which was held on March 5, 2010, focused on the roles and responsibilities of the local board and its members, and provided certain tools and techniques for holding more productive local board meetings. All local board members except Simmons and Baraka attended this session. The second training session, which was held on October 5, 2010, focused on the state Freedom of Information Act and Robert's Rules of Order. All members except Simmons, Baraka and Robles attended this session. Neither of these training sessions was mandated or required by the state board.
Beginning in January, 2011, and continuing through July 5, 2011, local elected officials in the city of Bridgeport consulted with either or both the chairman of the state board, Allan B. Taylor, and then acting commissioner of education, George A. Coleman, regarding the possibility of the state board reconstituting the local board following a formal request by the local board. Local board members Simmons, Baraka and Pereira were not aware of, informed of or asked to participate in these communications any time prior to July 1, 2011.
On Friday, July 1, 2011, at 4:55 p.m., a notice of a special meeting of the local board, to take place on Tuesday, July 5, 2011, at 6 p.m., was issued by Fuller. The agenda for the special meeting, as provided in the notice, included a discussion and vote on two resolutions concerning requests and recommendations to the state board. Copies of both resolutions were attached to the notice. The local board convened the special meeting on July 5, 2011, with all nine members present. By a vote of six to three, the local board passed the resolution concerning the reconstitution request (resolution), with local board members Baraka, Pereira and Simmons voting against it. The resolution provided, inter alia, that the local board (1) was unable to function effectively, (2) could not properly and effectively oversee the local school district and meet its improvement plan, and (3) had received training to help it function more effectively as a board but that this training had not enabled it to meet its responsibilities and, further, that additional training would not be helpful.
The following day, July 6, 2011, the state board held its regularly scheduled monthly meeting, which was open to the public. After the meeting was called to order, the
Shortly after Coleman's July 14, 2011 letter to the local board, former local board members Pereira and Simmons filed an action in the Superior Court against the state board, Coleman, Bill Finch, the mayor of the city of Bridgeport, John Ramos, the superintendent of schools for the city of Bridgeport, former local board members Bellinger, Colon, Fuller, Robles, Cunningham and Mulligan, and reconstituted board members Trefry, Moales, Smith-Tompkins, Norton, Kelleher, Bankowski and Illingworth. Around the same time, Robert Walsh, George Pipkin and Pertrinea Cash-Deedon, electors of the city of Bridgeport who had submitted over 3000 petition signatures in order to qualify as candidates for the local board, filed an action in the Superior Court against the defendants in the Pereira case, as well as Santa I. Ayala, democratic registrar of voters of the city of Bridgeport, and Alma L. Maya, the town clerk of the city of Bridgeport. Also around the same time, Laurayne Farrar-James and Shavonne Davis, residents of the city of Bridgeport, Barbara Pouchet, resident of the city of Bridgeport and potential candidate for the local board, and Bakara, former member of the local board, filed an action in the Superior Court against the local board, Ramos, Bellinger, the state department of education, Coleman and Taylor.
The complaints in all three actions alleged state statutory and constitutional violations, and one or more of the complaints sought, inter alia, (1) a declaratory ruling that § 10-223e (h) is unconstitutional under the state constitution, (2) a declaratory ruling that the acts of the defendants were in violation of the state constitution, (3) a declaratory ruling that the dissolution of the local board was in violation of the requirements of § 10-223e (h), with the effect that the reconstituted board had been improperly seated, (4) a writ of mandamus ordering that Ayala, the democratic registrar, and Maya, the town clerk, accept the petitions of candidates for the local board and place them on the ballot for the Bridgeport municipal elections in 2011, (5) a temporary injunction precluding the state board, Ramos, Coleman and Taylor, among others, from taking any further action with regard to reconstituting the local board, (6) an order requiring Pereira, Simmons and Baraka to be restored as
The three cases then were transferred to the judicial district of Waterbury, Complex Litigation Docket. Recognizing the need for an expeditious resolution of the underlying issues, the parties requested that the trial court reserve the action for the advice of this court pursuant to Practice Book § 73-1.
The resolution of this reservation, and the underlying case, is determined by the language and application of § 10-223e (h). Specifically, we must decide whether a statutory provision in § 10-223e (h) mandating that the state board require a local board of education to undergo and complete certain training before the state board authorizes reconstitution of that local board can be waived.
The proper application of § 10-223e (h) presents a question of statutory interpretation, over which our review is plenary. See, e.g., Connecticut Podiatric Medical Assn. v. Health Net of Connecticut, Inc., 302 Conn. 464, 471, 28 A.3d 958 (2011). We are guided by well established principles of statutory construction. See id.
We begin with the foundational principle that, when interpreting statutes, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance 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 and common law principles governing the same general subject matter. . . ." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 333, 984 A.2d 684 (2009).
We first consider the relevant language of General Statutes § 10-223e (h): "The State Board of Education may authorize the Commissioner of Education to reconstitute a local or regional board of education pursuant to subdivision (2) of subsection (d) of this section for a period of not more than five years. The board shall not grant such authority to the commissioner unless the board has required the local or regional board of education to complete the training described in subparagraph (M) of subdivision (2) of subsection (c) of this section. . . ." (Emphasis added.) The plain language of the statute conveys a mandatory procedure to be followed
"The legislature, rather than phrasing the [statutory provision] in affirmative terms unaccompanied by negative words, as is often done with directory provisions. . . instead chose . . . negative phrasing. . . . The legislature's use of such negative terminology suggests that it intended [the statutory provision] to be mandatory." (Citations omitted; internal quotation marks omitted.) Santiago v. State, 261 Conn. 533, 540-41, 804 A.2d 801 (2002); see also Stewart v. Tunxis Service Center, 237 Conn. 71, 78, 676 A.2d 819 (1996) ("[t]he legislature's use of such negative terminology suggests that it intended [the statutory provision] to be mandatory"). In other words, the statutory language supports the conclusion that the state board may not authorize reconstitution until it has required the local board to undergo and complete the training described in § 10-223e (c)(2)(M).
Because it is necessary to our understanding of the training requirement, we also review § 10-223e (c).
Particularly significant to an understanding of the operation of § 10-223e (h) is the relevant language of General Statutes § 10-223e (d): "The State Board of Education shall monitor the progress of each school or district designated as a low achieving school or district pursuant to subdivision (1) of subsection (c) of this section and provide notice to the local or regional board of education for each such school or district of the school or district's progress toward meeting the benchmarks established by the State Board of Education
Thus, when § 10-223e (h) is analyzed in the context of § 10-223e (c)(1) and (2), the logical inference is that the state board should pursue the remedial actions in § 10-223e (c)(2), with regard to the low achieving school or school district overseen by a local or regional board of education, before it pursues the seemingly severe remedy of reconstituting that local or regional board of education under § 10-223e (h). The clear and specific reference in § 10-223e (h) to § 10-223e (c)(2)(M) suggests that the reconstitution remedy in § 10-223e (h) is not meant to entirely supplant or to render superfluous the other, less drastic, remedies set forth in § 10-223e (c)(2). See, e.g., Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 726, 1 A.3d 21 (2010) ("[w]e cannot countenance a reading of a statute that would render it superfluous"). Indeed, the apparent function of § 10-223e (c) is to provide the state board with the appropriate tools to use in fulfilling its obligation of intensified supervision of low achieving schools and districts. By specifically singling out and referencing subparagraph (M) of § 10-223e (c)(2) in § 10-223e (h), it could reasonably be concluded that the legislature intended to underscore the importance of this specific remedial action with respect to local boards of education that oversee low achieving schools or districts.
None of the parties disputes the mandatory nature of the training requirement in § 10-223e (h).
We cannot confidently conclude, on the basis of the language of the statute alone, whether the provision is waivable, and we previously have held that mandatory statutory provisions sometimes may be waived. See, e.g., Stewart v. Tunxis Service Center, supra, 237 Conn. at 80, 676 A.2d 819. In light of this ambiguity, we consult the pertinent extratextual sources to discern legislative intent. See, e.g., McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150-51, 12 A.3d 948 (2011) ("[w]hen a statute is not plain and unambiguous, we also look for interpretive guidance 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 and common law principles governing the same general subject matter" [internal quotation marks omitted]).
Before proceeding, we pause briefly to reiterate the issue before the court in this reservation and, thus, the scope of our holding. The statutory scheme at issue in this reservation is embodied in § 10-223e, which, as we subsequently explain in more detail, represented a change in Connecticut's administration of public education. Through § 10-223e, the legislature expanded the state board's involvement in the quotidian affairs of low achieving schools and school districts. The state board now has the authority to make administrative and policy determinations for these schools and districts; see General Statutes § 10-223e (c); authority that formerly was only within the purview of local or regional boards of education. The dispositive issue raised by this reservation, however, concerns not the shift in power from local boards of education to the state board under § 10-223e generally. Instead, the parties have asked us to determine the very narrow question of the specific process that the legislature intended under § 10-223e (h), a more recent addition to § 10-223e. See Public Acts 2010, No. 10-111, § 21 (amending General Statutes [Sup.2010] § 10-223e by adding, inter alia, subsection [h]). We therefore focus primarily on the legislative intent and policy behind subsection (h), as informed by the legislature's decision to initially restrict to the General Assembly the power to reconstitute local boards.
With that in mind, we turn first to remarks made by legislators during the House floor debate concerning the proposed amendment to § 10-223e that would provide the state board with a mechanism to authorize reconstitution of underperforming local or regional boards of education.
In addition to the foregoing remarks, we find elucidating certain relevant testimony and remarks from an education committee hearing regarding the proposed amendment to § 10-223e. During the hearing, Mark K. McQuillan, the commissioner of education at the time of the hearing in 2010, testified regarding the need for amending § 10-223e to permit the state board to authorize the reconstitution of local and regional boards of education in certain, limited circumstances. Conn. Joint Standing Committee Hearings, Education, Pt. 4, 2010 Sess., p. 1046. In discussing his understanding of the proposed amendment, McQuillan stated that reconstitution would follow the "process outlined in the legislation [and] would be very sparingly used"; (emphasis added) id.; and that it would be used "in a process that . . . would involve [the Connecticut Association of Boards of Education] and would be one that would be administered. . . with a measured but deliberate insistence that things change." (Emphasis added.) Id., at p. 1049. Following McQuillan's testimony, Representative Fleischmann, a cochairman of the education committee, noted: "There's a tension between trying to get things done and respecting the will of the people in democracy. And one of the concerns. . . would be taking a body that had been elected by the folks in a given town and dispersing them . . . and, instead, giving the power, essentially, to [the commissioner] and the [s]tate board." (Emphasis added.) Id. In response to Representative Fleischmann's concerns, McQuillan agreed that "it is very, very important that . . . the democratic-elected officials remain in the positions if they are prepared and demonstrate the capacity to do the leadership." (Emphasis added.) Id. McQuillan explained that, "when we look at the question of reconstituting a board, it isn't simply throwing them all out or suggesting that everyone has to leave. . . . [I]t would involve a process of having a procedure in place. . . ." (Emphasis added.) Id., at pp. 1049-50. Thereafter, McQuillan summarized the envisioned operation of the proposed amendment by stating that, "in rare instances—and I'm saying `in rare instances,' not the general pattern—we have found that it would be necessary to have [the] authority" to reconstitute a local board.
During the same education committee hearing, Representative Deborah Heinrich raised her own concern about providing the state board with the authority to reconstitute local boards of education: "I'm a little confused about how one can reconstitute an elected board. And maybe I'm missing something in here, but the people elected their board and so then . . . the [s]tate [d]epartment of [education] would then turn around and say, [y]ou're no longer elected?" (Emphasis added.) Id., at pp. 1137-38. Shortly thereafter, Representative Paul Davis questioned
From the foregoing testimony and remarks, we distill three general principles of legislative intent behind § 10-223e (h). First, remarks of various representatives coupled with the testimony of McQuillan make clear that reconstitution is an extreme remedy, to be used only sparingly after it becomes apparent that other remedial measures have failed to produce results. Second, the testimony and remarks track the plain language of the statute, which mandates that the state board require a local board of education to undergo and complete training before the state board authorizes reconstitution of the local board. It also appears that certain legislators anticipated that the state board would reassess its initial decision to pursue reconstitution after the local board successfully completes training.
On the basis of the foregoing principles, we conclude that the legislature intended the training provision to serve the following purposes. First, requiring training prior to authorizing reconstitution provides notice to a local board of education—and, theoretically, to the electors of that local board—that the state board is considering authorizing reconstitution. Second, and related to the first, the training itself serves a substantive and remedial purpose, by providing the local board of education with an opportunity to prevent its reconstitution by successfully completing training and thereby demonstrating to the state board that it can operate effectively and that the extreme measure of reconstitution is unnecessary. Viewed this way, the training provision is premised on the importance of maintaining the continued local operations of a democratically elected board of education, as well as on providing certain due process protections.
In that connection, we highlight the concern, expressed by numerous legislators and other interested parties,
Additionally, the legislative history makes clear that, to the extent that the training provision serves a protective function as well, it does not exist only for the protection of the local board of education, as the defendants contend. Rather, the protection benefits the local electors of that local board and the democratic process as a whole. See, e.g., 53 H.R. Proc., Pt. 14, 2010 Sess., p. 4581, remarks of Representative Giuliano (noting that it would be "[a] significant usurpation of powers" to "dissolve a duly-elected, by the people, [b]oard of [e]ducation" [emphasis added]).
Our conclusion is further buttressed by the longstanding policy in Connecticut of local, rather than state, control over schools and school districts, as evidenced in the statutory scheme governing local and regional boards of education. See Interlude, Inc. v. Skurat, 266 Conn. 130, 143, 831 A.2d 235 (2003) ("[i]n determining the legislative intent of a particular statute, we also look to other relevant statutes governing the same or similar subject matter, for it is well established that we consider
We cannot ignore the fact that the foundational issue, both with regard to § 10-223e (h) and the operation of the state board and local boards of education, is how to provide students with the best possible education.
In sum, "[t]he state's responsibility for education is distributed through the. . . statutory framework. The state board is charged with the broad and general power to supervise and control the educational interests of the state." (Internal quotation marks omitted.) New Haven v. State Board of Education, 228 Conn. 699, 703, 638 A.2d 589 (1994). Section 10-220 "delegates the duty to provide and administer public education to local and regional boards of education." Id., at 703-704, 638 A.2d 589; see also West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 573, 295 A.2d 526 (1972) ("The chief function of local boards of education is to serve as policy maker on behalf of the state and for the local community on educational matters. The state has had a vital interest in the public schools from the earliest colonial times. . . . Article VIII, § 1, of the Connecticut constitution provides that `[t]here shall always be free public elementary and secondary schools in the state. The [G]eneral [A]ssembly shall implement this principle by appropriate legislation.' Obviously, the furnishing of education for the general public is a state function and duty. . . . By statutory enactment the legislature has delegated this responsibility to the local boards who serve as agents of the state in their communities.. . . Our statutes have conferred on the local board broad power and discretion over educational policy." [Citations omitted; emphasis added.]).
Indeed, this court has noted that the state board and local boards of education occupy distinct roles within the administration of Connecticut's public education system.
In that regard, the reconstitution authority found in § 10-223e (h) is an exception to the general rule that local educational matters are managed by local boards of education comprised of locally elected members. Even local boards of education overseeing low achieving schools and districts do not lose their local autonomy entirely simply because they are subject to additional supervision and direction by the state board pursuant to § 10-223e (c). Rather, the operation of the cooperative and remedial actions contemplated by § 10-223e (c)(2) provide for a combination of local and state control. Only if the state board chooses to exercise the extreme remedy of reconstitution will a local board of education be entirely supplanted by state appointed board members.
We are nonetheless cognizant that the statutory scheme embodied in § 10-223e altered the respective roles of the state board and the local boards of education with respect to low achieving schools and districts. In that regard, we agree with the dissent that § 10-223e, when first enacted without subsection (h), represented a sea change in educational policy in this state. Section 10-223e shifted control and administration of underperforming schools and districts away from a purely local framework to one of increased state intervention. What is clear, however, is that the legislature, in granting the state board these additional powers under § 10-223e, did not initially provide the state board with reconstitution authority. Instead, the statute initially limited reconstitution authority to the General Assembly. See Public Acts, Spec. Sess., June, 2007, No. 07-3, § 32, codified at General Statutes (2008 Sup.) § 10-223e (d). Only after the state failed to qualify for federal Race to the Top funding did the legislature amend § 10-223e by adding subsection (h) to grant the state board the authority to reconstitute a local board of education. See, e.g., 53 H.R. Proc., Pt. 14, 2010 Sess., p. 4554, remarks of Representative Fleischmann ("the amendment that stands before us [which includes granting the state board reconstitution authority] is essentially Connecticut's Race to the Top education reform legislation for the year"). It is therefore apparent that the legislature
In light of the foregoing discussion, we conclude that the legislature did not intend § 10-223e (h) to supplant Connecticut's long-standing policy of preferring and preserving locally elected boards of education.
Notwithstanding the foregoing, the defendants rely on the proposition that both constitutional and statutory rights are waivable.
In order to adequately address and dispose of the defendants' argument, we begin by briefly reviewing the doctrine of waiver, with particular focus on the principles espoused in the cases on which the defendants rely. "Waiver is the intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); C.R. Klewin Northeast, LLC v. Bridgeport, [282 Conn. 54, 86, 919 A.2d 1002 (2007)]. As a general rule, both statutory and constitutional rights and privileges may be waived. New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, [supra, 237 Conn. at 385, 677 A.2d 1350]. Waiver is based [on] a species of the principle of estoppel and [when] applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed. . . . Waiver does not have to be express . . . but may consist of acts or conduct from which waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. at 57-58, 970 A.2d 656. Finally, only the party who benefits from or is protected by the right may waive that right. See 28 Am.Jur.2d 662, Estoppel and Waiver § 196 (2011) ("[w]aiver is generally applicable to all personal rights and privileges" [emphasis added]); see also id., at § 200, p. 667 ("Parties may not waive statutory rights where a question of public policy is involved. Likewise, a law established for a public reason cannot be waived or circumvented by a private act or agreement."). Thus, as a threshold matter, in addressing the defendants' waiver argument, we must determine (1) whether the training provision constitutes a right, which would render the waiver doctrine applicable, and (2) if the training provision constitutes a right, the nature of that right and the party or parties who benefit from or are protected by the right.
We begin by noting that the state board is a statutorily created state agency; see General Statutes § 10-1 et seq.; and, therefore, is a body of limited authority that can act only pursuant to specific statutory grants of power. See, e.g., Ethics Commission v. Freedom of Information Commission, 302 Conn. 1, 8, 23 A.3d 1211 (2011). "It is well established that an administrative agency possesses no inherent power. Its authority is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function." (Internal quotation marks omitted.) Id.; see also Kinney v. State, 213 Conn. 54, 60 n. 10, 566 A.2d 670 (1989) ("administrative agencies. . . must act strictly within their statutory authority" [citation omitted]); State v. White, 204 Conn. 410, 419, 528 A.2d 811 (1987) ("agencies must . . . act according to. . . strict statutory authority"). In the absence of a grant of authority from the legislature, any action taken by an agency is "void." (Internal quotation marks omitted.) Stern v. Connecticut Medical Examining
That § 10-223e (h) conveys to the state board the power to authorize the reconstitution of a local or regional board of education is clear and not subject to debate, as the preceding analysis demonstrates. Section 10-223e (h) allows the state board itself to authorize reconstitution, provided that the state board first requires the local board of education to undergo and complete training. In order to determine whether the state board properly authorized reconstitution of the local board in the present case, we must identify the scope of the authority granted by the statute.
We briefly reiterate that the stated and overarching purpose of § 10-223e is to improve the quality of education available to students in Connecticut's public schools by the improving accountability and performance of schools and school districts. See General Statutes § 10-223e (a) ("In conformance with the No Child Left Behind Act . . . the Commissioner of Education shall prepare a state-wide education accountability plan. . . . Such plan shall identify the schools and districts in need of improvement, require the development and implementation of improvement plans and utilize rewards and consequences."). Section 10-223e, and in particular § 10-223e (c)(2), contains various tools that the state board, in its supervisory role of educational matters, may utilize to fulfill this purpose. In light of the numerous options available to the state board prior to the enactment of § 10-223e (h), we construe the reconstitution authority delegated to the state board in § 10-223e (h) narrowly, so as not to supplant the other remedies already available to the state board. Cf. Thomas v. Dept. of Developmental Services, 297 Conn. 391, 404, 999 A.2d 682 (2010) ("the legislature, in amending or enacting statutes, always [is] presumed to have created a harmonious and consistent body of law" [internal quotation marks omitted]). This construction aligns with general principles of statutory construction concerning (1) the determination of the mandatory nature of a statute; see 3 J. Sutherland, Statutory Construction (7th Ed. Singer 2008) § 57:10, pp. 52-53 ("[when] a statute grants authority to do a thing and prescribes the manner of doing it, the rule is clear that the provision as to the manner of doing the thing is mandatory, even though the doing of it in the first place is discretionary"); id., at § 57:12, p. 58 ("[a] statute which confers a new right, power, privilege or immunity, and prescribes a mode for its acquisition, preservation, enforcement or enjoyment is strictly construed and given mandatory effect"); and (2) statutes that confer authority to administrative agencies. See id., at § 64:1, p. 449 ("[s]ince [agency] enabling legislation, through which all subordinate governmental instrumentalities must receive their authority, is a grant of sovereign power, it is subject to the usual rule of strict construction applicable to such grants"); id., at § 65:2, pp. 508-509 ("[s]ince administrative agencies are purely creatures of legislation without inherent or common-law powers, the general rule applied to statutes granting powers to them is that only those powers are granted which are conferred either expressly or by necessary implication").
Simply put, the state board cannot reconstitute a local board of education without first requiring the local board to undergo and complete training. Requiring training is therefore a condition precedent to the state board's ability to authorize reconstitution. In other words, the state board lacks the power to authorize reconstitution until it first has required the local board to undergo and complete
While this completes our analysis of § 10-223e (h), we nevertheless address the defendants' claim that the training provision benefits the local board and, therefore, that the local board can choose to waive that benefit. We accept the defendants' premise insofar as it embodies the concept that statutory rights are generally waivable by the party who benefits from or is protected by the right. Nevertheless, to determine whether the particular right embodied in the training provision is waivable, we must determine the nature of the right itself. In our waiver jurisprudence, we have identified several specific circumstances in which the waiver doctrine may be appropriate.
Moreover, although it is generally true that privately held statutory and constitutional rights are waivable, not every mandatory statutory provision can be waived, even by the party who benefits or is protected under the statute. See 28 Am.Jur.2d, supra, at § 200, p. 667 ("Waivers of statutory rights are not favored. . . . Parties may not waive statutory rights [when] a question of public policy is involved. Likewise, a law established for a public reason cannot be waived or circumvented by a private act or agreement."); see also Santiago v. State, supra, 261 Conn. at 543-44, 804 A.2d 801 ("Although we acknowledge that, typically, noncompliance with a mandatory statutory provision may be waived, either explicitly or implicitly, by the parties . . . those exceptions
We previously have held that "[o]ne cannot waive a public obligation created by statute . . . but he may waive a statutory requirement the purpose of which is to confer a private right or benefit." (Citation omitted.) Hatch v. Merigold, 119 Conn. 339, 343, 176 A. 266 (1935), citing L'Heureux v. Hurley, 117 Conn. 347, 356, 168 A. 8 (1933). At the time we stated this, we did not define the scope of what we meant by the term "public obligation," and we do not appear to have done so since then.
"The public interest may not be waived. [When] a law seeks to protect the public as well as the individual, such protection to the state cannot, at will, be waived by any individual, an integral part thereof. The public good is entitled to protection and consideration and if, in order to effectuate that object, there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good. . . . Accordingly, a statutory right conferred on a private party, but affecting the public interest,
We believe that the training requirement in § 10-223e (h) embodies a public obligation that, through the act of the General Assembly, inures to the benefit of the citizens of Connecticut as a whole. We reach this conclusion in view of the fact that this provision is meant to ensure that, if it is necessary to reconstitute a local board of education, reconstitution will occur in a methodical, deliberate and transparent manner. In this sense, the provision creates a process that benefits no person or group individually. It benefits the citizens of this state by mandating a transparent process, it protects the local electors and the democratic process, and it furthers a policy of maintaining a locally elected board of education to the maximum extent possible, even when that board is
In sum, because the training provision serves the public interest of Connecticut as a whole, we are not persuaded that the local board, even as a democratically elected representative body of the electors of the city of Bridgeport, could act to waive the provision. Put differently, the legislature, as the representative body of the citizens of Connecticut, has determined that requiring local boards of education to undergo training before the state board can authorize their reconstitution is in the public interest. Because the legislature has determined that it is in the interest of the state as a whole to have a methodical, deliberate and transparent process for reconstitution, it simply cannot follow that the local board could waive, on behalf of the electors of the city of Bridgeport, this statewide public obligation.
In light of the defendants' failure to provide this court with any reasonable justification in support of their waiver argument, we follow our previous decisions and decline to extend the doctrine of waiver to a mandatory statutory provision that exists for the benefit of the public rather than a specific individual. Accordingly, we conclude that the training requirement in § 10-223e (h) is both mandatory and not subject to waiver.
The foregoing analysis dispenses with the bulk of the arguments proffered by the defendants in this reservation. We address only one additional argument in more detail, as we believe doing so will further emphasize why the training provision in § 10-223e (h) is not waivable. In essence, the defendants claim that this court should not construe the training requirement to be so important as to override a resolution of a local board seeking reconstitution by the state board. As we understand this claim, the defendants are arguing that, once a local board has reached its own determination that it is operating dysfunctionally, has attempted to undergo its own training, and has concluded that it would not benefit from the training envisioned by § 10-223e (h), imposing the training requirement on the local board would elevate form over substance.
Additionally, the defendants' argument in this regard lacks merit for two other reasons. First, if we accepted the defendants' argument that the training requirement should be dismissed as being unimportant or futile, at least when a local board of education has undergone some sort of arguably relevant training, we would be concluding, essentially, that a public agency such as the state board and the public officials that compose it have no good faith obligation to fulfill statutory requirements that are directed at them. This is contrary to common sense and, more importantly, the oath of office that public officials must take. See General Statutes § 1-25 (delineating forms of oaths, which require individual to swear or affirm that he or she will "faithfully discharge, according to law, the duties of [his or her] office"); see also Bridgeport Municipal Code § 2.04.020 ("[e]very officer of the city shall, before he enters upon the duties of his office, make oath or affirmation before some competent authority for the faithful and impartial discharge of the duties of such office"); Bridgeport Charter c. 2, § 6(b) ("[a]ll elected and appointed officials of the city shall be sworn to the faithful discharge of their respective duties"). Moreover, with specific regard to the present case, there is no dispute that § 10-223e (h) refers to the mandate that the state board require a local board of education to undergo and complete training but not to the authority of a local board to seek out its own training. As we noted previously, § 10-223e (c)(2) sets forth the state board's obligation to improve all low achieving schools and districts by dictating that the state board work in conjunction with the local schools and boards of education. The defendants' position would allow the state board to sidestep its statutory obligation to work in cooperation with the local board before authorizing reconstitution. In other words, if we were to accept the defendants' argument, we essentially would be allowing the state board to forgo a statutory obligation that the legislature intended the state board to fulfill. In this regard, an application of the waiver doctrine to the present case premised on the notion that training is unimportant or futile is equivalent to wholly disregarding the will of the legislature. As we stated in part II of this opinion, the legislature has signaled in numerous instances that it expects the state board and local boards of education to work together in every manner possible to maintain local control and operations of the educational system.
Even if we were to accept the proposition that, at some point, requiring training
Additionally, and on a more fundamental level, the claim that the training requirement is effectively not a requirement for the state board ignores the plain language of the statute and well accepted principles of statutory construction. If the legislature did not intend for the state board to require local boards of education to undergo and complete training before the state board authorizes their reconstitution, it would have used different language or omitted that language from the statute altogether. The fact that the legislature inserted the training requirement and directed that requirement to the state board strongly suggests that (1) the legislature intended that the state board would determine when it would require the local board to undergo and complete training, and (2) only this specific type of training would give the state board the authority to authorize reconstitution of the local board.
On the basis of the legislative history, policy considerations and the well-founded principle that we presume that the legislature acts intentionally when it includes certain words or provisions within a statute; see, e.g., Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 303, 21 A.3d 759 (2011) ("We presume that the legislature did not intend to enact meaningless provisions. . . . [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant. . . ." [Internal quotation marks omitted.]); we reject the defendants' claim that the training requirement is illusory or that it can be satisfied by evidence of participation in training by the local board of education on its own initiative.
In emphasizing the different roles of the state board and local boards of education, we do not suggest that the state's role is limited, especially with regard to low achieving schools or districts, or that the state does not have the ultimate responsibility of providing appropriate educational opportunities. Indeed, as we previously noted, the state board's supervisory role includes many responsibilities that concern the day-to-day administration of low achieving schools and districts, and the state board possesses broad powers to carry out those responsibilities. As the foregoing analysis demonstrates, however, Connecticut has not entirely abandoned a policy of delegating the vast majority of educational administration to local boards of education, even with regard to local oversight of low achieving schools and districts. Section 10-223e (h) must be construed in light of that policy. At a minimum, there is no reasonable basis for concluding that the legislature intended that § 10-223e (h) would upend the balance of operations and control between the state board and local boards of education in any circumstance other than the specific one envisioned by the statute. There is no suggestion that the legislature expects local boards of education to seek out reconstitution themselves. Instead, the legislature empowered the state board, and the state board only, with the power to authorize reconstitution, but that authority is circumscribed to the extent that the state board must first require the local board of education to undergo training. Neither the statute nor legislative history provides that local boards of education may make their own determination as to whether training or reconstitution is appropriate.
Thus, the fundamental distinction between the majority opinion and the dissent is not the concern for the educational needs of Bridgeport students. Rather, it is our answer to the question of whom the training provision is intended to protect. In light of the language of the statute and the relevant legislative history, we do not view the training provision as protective of any particular individual or group. The
For the foregoing reasons, we conclude that the state board's failure to require the local board to undergo and complete training, as required by § 10-223e (h), rendered void the state board's authorization to the commissioner to reconstitute the local board. Accordingly, we answer the first question presented in this reservation in the affirmative.
The case is remanded to the trial court with direction to set a date for a special election for the local board. The special election will include all four seats that would have been filled on the basis of voting in the 2011 Bridgeport municipal elections. Because not all former local board members can be reinstated at this time, as some of their terms of office have expired, and because a local board must continue to function until a new local board can be elected, we stay the effect of our decision pending final certification of the special election results by the town clerk. Therefore, the trial court shall direct that the seven current members of the reconstituted board remain in office until the special election has been completed. At that time, the trial court shall reinstate the five members of the local board whose terms of office have not expired, to serve along with the four newly elected members.
The answer to the reserved question of whether the state board of education violated § 10-223e (h) when it authorized the commissioner of education to reconstitute the board of education of the city of Bridgeport is: Yes. The case is remanded to the trial court with direction to proceed in accordance with this court's directive in the preceding paragraph.
No costs shall be taxed in this court to either party.
In this opinion ROGERS, C.J., and NORCOTT, McLACHLAN, EVELEIGH and HARPER, Js., concurred.
McLACHLAN, J., concurring.
I agree with and join the well reasoned majority opinion. I write separately, however, to highlight a significant point addressed by Justice Harper. In his concurrence, he points out the necessity of parental and community involvement in order for our public schools to be successful. I heartily agree. No matter how magnificent the facility, and regardless of the credentials and commitment of the teachers, if the school system is not supported by the parents and the community at large, the children, when they come to school, cannot be engaged fully in the educational process. Therefore, I agree with Justice Harper that anything that may alienate parents and the community from the schools leaves students without
HARPER, J., concurring.
A closely divided state board of education (state board) voted to reconstitute the board of education of the city of Bridgeport (Bridgeport board) without requiring that board to complete training that the legislature has mandated as a precondition to reconstitution.
In writing separately, I wish to highlight my disagreement with the dissent's suggestion that permitting a local board of education to waive preconditions to state intervention necessarily honors the principle of local control and best advances the educational interests of schoolchildren in low performing schools. I also wish to bring to light certain concerns that the plaintiffs
I first note that the resolution adopted by six members of the Bridgeport board to forgo training cannot logically be separated from the intended effect of that decision—to displace duly elected board members through a state created reconstituted board. Nothing in the record suggests that the state or the state board had considered reconstitution prior to the state
In light of the actual effect of the Bridgeport board's purported waiver, I take issue with the dissent's assumption that the legislature intended to permit the Bridgeport board to waive statutorily mandated training and that such a result necessarily is consistent with the principle of local control and is in the best interests of the children of the Bridgeport public schools. There can be no doubt that "[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society. . . ." Wright v. Council of Emporia, 407 U.S. 451, 469, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); accord San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 49, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) ("[t]he persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters"); see also Milliken v. Bradley, 418 U.S. 717, 741-42, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ("local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to [the] quality of the educational process"). Undoubtedly, many citizens in this state cherish this exercise of direct control in their children's educational process, and they exercise this control when they have their say at the ballot box regarding who will make decisions involving that educational process. It is universally accepted
Local control over education fosters and affirms parental involvement, thus comporting not only with deep civic values, but also in important respects with the interests of children as well. In this context, reconstituting a local board of education is an extraordinary act that necessarily diminishes local control into the future and, if imposed against the will of a majority of parents, threatens to undermine sustained parental involvement in the education system.
It bears emphasizing that the children of this state have a constitutional right to an adequate and equal education. I seriously doubt, however, whether anyone on either the Bridgeport board or the state board considering reconstitution, with or without state mandated training, operated under the illusion that such a measure would be a panacea for the serious and
I also take note of the fact that, in their complaints and in arguments to this court, the plaintiffs have leveled accusations that certain members of the Bridgeport board colluded with the mayor, superintendent, private parties and certain members of the state board to engineer a takeover of the Bridgeport board for purely political purposes. They suggest that these actions were undertaken for the purpose of ousting a vocal minority who had opposed the mayor's policies. I underscore that these allegations are unproven; they are not part of the stipulated facts. As a general matter, this court assumes that public officials are acting in good faith. Kinsella v. Jaekle, 192 Conn. 704, 729, 475 A.2d 243 (1984). Accordingly, in the absence of clear evidence to the contrary, I operate under the assumption that Bridgeport board members have exercised their authority in good faith, solely for the purpose of advancing the educational interests of the children. Indeed, the fact that no member of the Bridgeport board was appointed to the reconstituted board and that the superintendent's ability to retain his position was placed in jeopardy by supporting reconstitution undermines these accusations.
I observe, however, one adverse inference in support of the plaintiffs' allegations that readily can be drawn from the stipulated facts and exhibits submitted as part of that stipulation, namely, that the reconstitution process was undertaken in a manner that not only limited transparency, but intentionally limited opportunity for community involvement and for board members to marshal opposition. Only certain Bridgeport board members were privy to private discussions about reconstitution that took place many months before the resolution was adopted requesting that action. Thereafter, at 4:55 p.m. on Friday, July 1, 2011, just before a three day holiday weekend was to commence, notice was issued for a special meeting of the Bridgeport board to be held at 6 p.m. on Tuesday, July 5, to consider the reconstitution resolution. At its regularly scheduled meeting on the morning of July 6, the state board voted in favor of adding the reconstitution resolution to its agenda and acted on that issue later that same day. Thus, essentially two business days lapsed between the initiation and the resolution
In making these observations, I am mindful that the plaintiffs have not advanced a claim that these procedures violated the public hearing requirements of the Freedom of Information Act, General Statutes § 1-200 et seq., or their constitutional right to procedural due process. Indeed, the legislature has not mandated any procedural requirements in connection with reconstitution generally or the training precondition specifically.
Undoubtedly, it is for the legislature, not this court, to determine whether it is good policy for the state to reconstitute a duly elected or appointed local school board. Nonetheless, we need not be blind to the implications of the lawful exercise of authority. Poor urban districts like Bridgeport are among the state's longest, low achieving school districts. I cannot help but note that parents in such districts often are cited as being less involved in their children's education than their more affluent suburban counterparts. One reason posited for this difference is that "low-income families often perceive themselves as outside the school system. . . ." P. McDermott & J. Rothenberg, "Why Urban Parents Resist Involvement in their Children's Elementary Education," 5 The Qualitative Report (October, 2000) p. 1, available at http://www.nova.edu/ssss/QR/QR5-3/mcdermott. html (last visited February 28, 2012) (copy contained in the file of this case with the Supreme Court clerk's office). Thus, it has been recommended that "[s]chools serving low income, ethnically diverse neighborhoods . . . must make greater efforts to welcome families, because those are the parents who often feel excluded because of differences in their ethnicity, income, and culture." Id., at p. 2. Failure to provide procedures that allow for optimum community involvement in a decision of the magnitude of reconstituting a locally elected board of education would seem to reinforce the perception of parents in such districts that they are outsiders. I feel confident that the legislature would not intend such an effect.
In sum, I conclude that the state board violated § 10-223e (h) by authorizing the commissioner of education to reconstitute the Bridgeport board in disregard of its independent obligation to ensure that the Bridgeport board completed training to improve its operational efficiency and effectiveness
I respectfully concur.
PALMER, J., dissenting.
Acknowledging their inability to fix a school system that has failed to meet minimum state standards for seven consecutive years, Bridgeport's mayor, superintendent of schools, and school board formally requested that the state board of education authorize the commissioner of education to reconstitute the Bridgeport school board,
Today, the majority deals the schoolchildren of Bridgeport a major setback, striking down the state board's action without any legitimate basis for doing so. The majority holds that the Bridgeport board was not free to waive the training provision of § 10-223e (h). Yet it is axiomatic that a statutory requirement typically may be waived by the requirement's intended beneficiary or by the beneficiary's duly authorized representative, and this case presents no exception to that general rule: a local board of education is free to waive the training provision of § 10-223e (h) because that provision obviously exists to protect a local school district from an unwanted state takeover, not to force a local board of education to retain control even after the local board has determined that it cannot discharge its constitutional duty to provide an adequate public education. There is not a shred of evidence to support the majority's contrary conclusion—not in the statutory text, not in the legislative history, and not in our case law. The majority achieves its unfounded conclusion only by misapplying the law and ignoring this state's recent sea change in public policy toward failing school districts.
Not only does the majority disregard established principles of law, relying instead on superficially favorable language that it lifts from an assortment of largely irrelevant opinions, but the majority also invokes a nonexistent principle of statutory interpretation to rationalize ignoring the legislative history of § 10-223e and to justify saddling the training provision of § 10-223e (h) with an entirely fictional purpose: to provide "notice" of an impending
In analyzing the training provision of § 10-223e (h), the majority refuses to consider the legislative history of the comprehensive statutory scheme of which the training provision is but a small part, a statutory scheme that grants the state sweeping power to rescue failing schools and school districts. In reading the majority opinion, one would scarcely know the extent to which this grant of power represents a dramatic shift away from what was once a blanket preference for local control of education. Where our most profoundly troubled school systems are concerned, this state has abandoned any preference for local control. Oddly enough, however, it is in fact the majority opinion that disregards the value of local control, offering an analysis of § 10-223e (h) that yields an absurdly paternalistic result, namely, that the training provision could not have been waived even upon a 9 to 0 vote of the local board and upon unanimous community and political agreement that the Bridgeport school system required immediate state intervention. This irrational statutory construction defies common sense, not to mention settled principles of law. Compounding the problem is the majority's holding that the training provision serves the purpose of providing for a "transparent and deliberative process." This holding yields the additional irrational result that, even if the members of a local board of education have voluntarily undergone all of the training that the state board possibly can have required of them, the state board could not reconstitute the local board without requiring the board members to undergo the training all over again.
It seems that what really drives the majority opinion is a general sense of unease with Connecticut's dramatic shift away from a policy of local control of failing school systems and a lack of affection for the state's newfound statutory power to reconstitute a local school board unable to stem the tide of chronic failure. Expressly agreeing with Justice Harper's critical view of the reconstitution authority, the majority proclaims that "local control over education fosters a beneficial and symbiotic relationship between the parents, students and local school administrators, a relationship that should not be lightly disregarded." Footnote 24 of the majority opinion. Yet this case simply is not about whether permitting the state board to reconstitute failing school districts
In sum, it is clear that a local board of education is competent to waive the protection of § 10-223e (h) both because it is the locality's duly elected representative and because it is an agent of the state charged with fulfilling the state's constitutional obligation to provide schoolchildren with a suitable education. That constitutional obligation adverts to what this case really is about: the dismal state of affairs confronting Connecticut's poorest schoolchildren. Absent from the majority opinion is anything more than a passing reference to this calamity.
Before explaining my disagreement with the majority's waiver analysis, I find it necessary to discuss in some detail this case's historical and statutory backdrop.
I begin, then, by describing the sad state of affairs confronting Connecticut's poorest schoolchildren. It was this state of affairs that the legislature sought to rectify when it enacted a statutory scheme enabling the state to intervene in the educational affairs of municipalities like Bridgeport, whose schools chronically have failed to deliver on this state's constitutional obligation to provide an adequate public education. Of all fifty states, Connecticut has the largest "`achievement gap,'" that is, the gravest disparity between the educational performance of "students who are from low-income families compared with those from more affluent circumstances."
The plight of Connecticut's poorest schoolchildren is unusually dire in Bridgeport. As the members of the reconstituted Bridgeport board note in their brief to this court, a vivid snapshot of Bridgeport's education crisis is its dropout rate. For the statewide high school graduating class of 2008, the cumulative dropout rate was 6.6 percent, meaning that one out of fifteen members of the class of 2008 withdrew along the four year path to graduation. Connecticut Department of Education, Data Bulletin: High School Dropout Rates in Connecticut (November 2009) p. 4. In the Bridgeport school district, by contrast, the cumulative dropout rate for the class of 2008 was a staggering 23.3 percent, that is, nearly one out of every four students. Id., at p. 10. This dropout rate is deplorable, even in comparison with Connecticut's
No less tragic than Bridgeport's high school dropout rate is its abysmal student performance. In the 2010-2011 school year, according to data collected by the state department of education, fewer than one in four third graders in the Bridgeport school district read at "goal" level or above, compared with a clear majority of third graders statewide; approximately 43 percent of eighth graders in the Bridgeport school district read at "goal" level or above, compared with approximately 75 percent statewide; approximately 31 percent of eighth graders in the Bridgeport school district attained "goal" level in mathematics, compared with approximately 67 percent statewide; and just one in ten tenth graders in the Bridgeport school district read at "goal" level or above, compared with nearly one half of tenth graders statewide. Similarly poor performance in previous years has consistently placed the Bridgeport school district in the lowest achieving 5 percent of school districts, on average, in Connecticut. See Strategic School Profile (2008-2009) of the Bridgeport School District (produced by state department of education); Strategic School Profile (2007-2008) of the Bridgeport School District (produced by state department of education).
These heartbreaking statistics provide a context for the key stipulated facts in this case: that the state board designated the Bridgeport school district as a low achieving school district under § 10-223e (c)(1) for at least seven consecutive years; that the Bridgeport school district has failed to make acceptable progress toward benchmarks established by the state board, pursuant to § 10-223e (a) and (c); and that the Bridgeport school district has failed to make adequate yearly progress, as defined by the federal No Child Left Behind Act of 2001, Pub.L. No. 107-110, 115 Stat. 1425, codified as amended at 20 U.S.C. § 6301 et seq. (2006 & Sup. III 2009), for at least two consecutive years while being designated as a low achieving school district. Contrary to the majority's assertion, these troubling statistics are hardly "irrelevant."
The relevant statistics also serve to illuminate the legislative intent, painting a vivid picture of the crisis that the legislature sought to remedy when it created the statutory scheme of which § 10-223e (h) is but a small component.
Of greatest significance to the present case, the 2007 act amended § 10-223e to give the state unprecedented power to intervene in failing schools and school districts. See Spec. Sess. P.A. 07-3, § 32. As amended by the 2007 act, § 10-223e provided that low achieving schools and school districts would be subject to "intensified supervision and direction" by the state board. Spec. Sess. P.A. 07-3, § 32, codified at General Statutes (2008 Sup.) § 10-223e (c)(1). To improve student performance in these schools and school districts, the 2007 act empowered the state board, inter alia, (1) to require a local or regional board of education to use state and federal funds for critical needs, as directed by the state board, (2) to provide incentives to attract highly qualified teachers and principals, (3) to direct the transfer and assignment of teachers and principals, (4) to require that teachers, principals, and office staff receive additional training, (5) to require local boards to implement model curricula, including recommended textbooks, materials and supplies approved by the state department of education, (6) to identify schools for reconstitution as state or local charter schools, (7) to identify schools for management by an entity other than the local or regional board of education for the district in which the school is located, (8) to direct a local or regional board to develop and implement a plan addressing deficits in achievement, (9) to assign a technical assistance team to a school or district to guide local initiatives and to report progress to the commissioner, and (10) to direct schools to establish "learning academies" requiring continuous monitoring of student performance by teacher groups. Spec. Sess. P.A. 07-3, § 32, codified at General Statutes (2008 Sup.) § 10-223e (c)(2). With respect to school districts and elementary schools that, for two successive years, had failed to make "adequate yearly progress," and accordingly had been designated as low achieving, the 2007 act empowered the commissioner, after an evaluation, to order the school or
The 2007 act further provided that, if a school district failed to make adequate yearly progress, as defined by the federal No Child Left Behind Act of 2001, for two consecutive years while being designated as a low achieving school district and also failed to make acceptable progress toward benchmarks established by the state board, the state board, after consulting with the governor and the chief elected official of the failing school district, could request that the General Assembly enact legislation authorizing the state board or another entity to take control of the school district, thereby entirely supplanting the local administration. Spec. Sess. P.A. 07-3, § 32, codified at General Statutes (2008 Sup.) § 10-223e (d). This remedy is even more comprehensive and thoroughgoing than the remedy of reconstitution.
Speaking on the Senate floor, Senator Thomas P. Gaffey, co-chairman of the education committee, described the 2007 act as "a historic investment in education in the school districts throughout Connecticut"; 50 S. Proc., Pt. 19, 2007 Spec. Sess., p. 6185; that "establishes far more accountability measures than ever before"; id., at p. 6186; and "will give [the state department of education and the commissioner] broad and sweeping powers" to intervene in failing school districts. Id., at p. 6187; see also id., at pp. 6197, 6199, remarks of Senator Thomas J. Herlihy (speaking strongly in favor of 2007 act and calling it "[a] huge increase in spending for education" and "accountability with teeth").
In 2008, the legislature passed An Act Concerning Minor Changes to the Education Statutes, Public Acts 2008, No. 08-153 (P.A. 08-153), which augmented the state board's already robust power to intervene in failing school districts.
The operational training delineated in General Statutes (Rev. to 2009) § 10-223e (c)(2)(M) would two years later become an ingredient in another interventionist tool, namely, the state's authority to reconstitute a local or regional school board pursuant to § 10-223e (h), the focal point of this case. The legislature enacted § 10-223e (h) in the course of implementing a substantial piece of education reform legislation, namely, An Act Concerning Education Reform in Connecticut, Public Acts 2010, No. 10-111 (P.A. 10-111), which aimed in part to improve Connecticut's chances of obtaining funds under the federal Race to the Top program.
Viewed in its entirety, the statutory scheme provides a range of increasingly interventionist tools: (1) the state board may oversee and direct the principal activities of an existing local board of education; see General Statutes § 10-223e (c); (2) the state board may reconstitute a local board of education for a limited period while leaving the local administration substantially in place; see General Statutes § 10-223e (h); or (3) the General Assembly may divest control from the local administration entirely and reassign it to the state board or another entity for an unspecified period. See General Statutes § 10-223e (d).
Given the statutory scheme and the legislative history, the clear purpose of § 10-223e is to enhance the state's power to intervene in failing school districts. Viewed in the light of that overriding purpose, the training provision obviously serves to put a modest brake on the process of reconstituting a local board in recognition of the locality's still existing but dramatically reduced interest in retaining control.
Before I address the various arguments that the majority offers in support of its interpretation of § 10-223e (h), I must observe that the majority's interpretation of that statute violates a cardinal rule of statutory construction, namely, that a court must not construe a statute to reach a bizarre or irrational result; if there are two asserted interpretations of a statute, the court must adopt the reasonable one over the unreasonable one.
Having noted that the majority's interpretation of § 10-223e (h) has several irrational consequences, I turn now to the majority's reasons for offering that interpretation. Three principal strains of argument emerge from the majority's discussion. First, the majority asserts that the legislative history of § 10-223e (h) indicates that the legislature did not intend that the training provision could be
The majority's three main arguments contain severe flaws. Most glaringly, none of the sources on which the majority relies actually supports its view of waiver, and many of these sources in fact support the opposite view. Nowhere is this last flaw more vivid than in the majority's selective reliance on legislative history. The majority refuses to consider the legislative history of the 2007 act; Spec. Sess. P.A. 07-3; the very act that created the comprehensive statutory scheme of which § 10-223e (h) is but one of several substantive provisions. Ignoring this crucial source of evidence, the majority looks only to the legislative history of P.A. 10-111, § 21, which gave rise to § 10-223e (h). The legislative history of P.A. 10-111, § 21, obviously tells us very little about the legislative intent behind the overall statutory scheme, most of which was enacted three years earlier. Had the majority consulted the legislative history of the 2007 act, it would have been forced to confront the fact that a virtually unanimous General Assembly approved the unprecedented interventionist measures that stand alongside the reconstitution process outlined in § 10-223e (h), measures that suggest anything but a legislative preference for local control of education in failing school districts.
The majority avoids interpreting § 10-223e (h) in the light of what it acknowledges to be "a sea change in educational policy in this state" only by announcing a heretofore unknown principle of statutory construction: when construing a statutory amendment, the court must look primarily to the legislative history of the amendment and must pay little or no attention to the purpose and legislative history of the underlying statute. To state this principle is to refute it. This principle also runs counter to the established practice of this and other courts of construing a statutory amendment by reference to the legislative history of previous versions of the statute. See, e.g., McCoy v. Commissioner of Public Safety, 300 Conn. 144, 172-73 n. 23, 12 A.3d 948 (2011) ("the legislative history of [General Statutes] § 14-227a demonstrates that many of the amendments to § 14-227a over the years have been intended to make our driving under the influence law consistent with the law of other states and federally recommended guidelines"); see also Bell v. United States, 366 U.S. 393, 411, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961) ("[n]othing in the legislative history of the original statute or of its many re-enactments offers support for any other construction").
The majority's use of legislative history is flawed in yet another respect as well. In support of its conclusion that "there was a concern that reconstitution . . . would trample on the rights of the people who had duly and democratically elected their representatives to the local board," the majority relies to a significant extent on the statements of legislators who actually voted against P.A. 10-111. The statements of legislators who voted against P.A. 10-111 establish little if anything about the legislative intent behind § 10-223e (h). They certainly do not establish that the training provision signifies a deep-seated preference for local control of failing school districts. Even less do they establish that the training provision is nonwaivable. If the remarks of legislators who voted against the law establish anything at all, they likely establish that the legislature knew about and discounted the concerns of those legislators.
Even if the selection of legislative sources on which the majority relies truly were representative of the legislature's intent, these sources would not support the majority's conclusion that the training provision is nonwaivable. The majority's conclusion simply is a non sequitur, a non sequitur concealed behind a sequence of purported inferences. From an assemblage of legislative quotations, the majority first infers "three general principles of legislative intent": (1) reconstitution is an "extreme remedy, to be used only sparingly after it becomes apparent that other remedial measures have failed to produce results"; (2) "the testimony and remarks [concerning § 10-223e (h)] track the plain [mandatory] language of the statute"; and (3) reconstitution is a "usurpation of local democratic will." From these three general principles, the majority then infers that the legislature intended the training provision to serve three "purposes": (1) to afford notice to a local board of education and its electors of a potential takeover; (2) to provide the local board with an opportunity to prevent its reconstitution; and (3) to allow the state board to reconstitute the local board only if "it first requires the local board to undergo and complete training"—in other words, the training provision is mandatory. "View[ing]" these three purposes "together," the majority infers that the overarching purpose of the training provision is to afford notice of a potential takeover to the local board, its electors, and the citizens of this state as a whole, and to foster transparency and deliberation during the process of reconstitution. Having saddled the training provision with this overarching purpose, the majority then concludes that the provision is nonwaivable.
As I explain hereinafter, none of the purposes or principles that the majority ascribes to the training provision supports the conclusion that the provision is nonwaivable, and only some of these purposes or principles find any support in the legislative sources that the majority cites. I address these principles and purposes in turn.
First, the majority repeatedly emphasizes that the legislature understood § 10-223e (h) to be mandatory. This is irrelevant. As a conceptual matter, only a mandatory provision can be waived; thus, only in the context of a mandatory provision does the issue of waiver even arise. The fact that "the testimony and remarks track the plain [mandatory] language of the statute"
Second, the majority observes that the training provision serves the protective purpose of affording a local board of education an opportunity to prevent its reconstitution. I agree, but if the training provision serves to protect a local board from an unwanted takeover, then of course the local board can waive that protection. Indeed, every single legislative remark that the majority quotes evinces a desire to protect local boards of education from unwanted reconstitution. These remarks therefore support the very conclusion that majority eschews, namely, that the local board of education is free to waive the training provision because that provision serves only to protect the locality's greatly reduced interest in retaining control of its
Third, the majority contends that the legislature regarded reconstitution as an "extreme remedy, to be used only sparingly after it becomes apparent that other remedial measures have failed to produce results."
Fourth, the majority contends that the legislature viewed reconstitution as a "usurpation of the local democratic will." Whether true or not, this contention is irrelevant. Reconstitution may represent a usurpation of the local democratic will only when it occurs over the objection of an elected local board of education. Reconstitution represents no such usurpation when it occurs at the urging of the local board, as it did in the present case. Indeed, in the present case, reconstitution received strong support not only from the Bridgeport board but also from the superintendent and from the mayor, the city's highest elected official.
Fifth, the majority asserts that the training provision serves the overarching purpose of benefiting the citizens of the entire state by ensuring that reconstitution can occur only upon adequate public notice and in a manner that is deliberate and transparent. Although the majority does not say so, this assertion derives no support from the statutory scheme or the legislative history and, in fact, runs counter to our rules of statutory construction. It also runs counter to common sense; the majority does not explain why the residents of Torrington and Greenwich and New London have any interest at all, much less an overriding one, in the transparency and deliberateness of the reconstitution process in Bridgeport. Nor does the majority bother to explain exactly how such an interest could possibly trump Bridgeport's own interest in permitting its board of education, acting on behalf of the local electorate, to waive the training contemplated by § 10-223e (h) in order to discharge as expeditiously as possible the Bridgeport board's duty to protect the schoolchildren's constitutional right to an adequate public education.
Perhaps even more fundamentally, the majority seems oblivious to the fact that § 10-223e (h) enables the state board to reconstitute a local board of education in a manner that affords the locality no notice whatsoever. It would be perfectly lawful under § 10-223e (h) for the state board to take several of the remedial actions specified
Even if the purpose of the training provision truly were to afford notice of a potential takeover and to promote transparency and deliberation during the reconstitution process, the majority's reasoning still would not yield the conclusion that the training provision is not waivable, for the majority does not even attempt to explain how permitting a local board of education to waive the training provision would deprive the locality of adequate notice or render the reconstitution process impermissibly opaque or overhasty. To the extent that the training provision serves incidentally to afford notice or to promote transparency and deliberation, it does so most obviously in the case of a recalcitrant board, that is, one unwilling to
In seeking to establish that a local board of education cannot waive the training provision of § 10-223e (h), the majority appears to place the greatest weight on its "public obligation" argument. This argument rests on two premises. The first is that the training provision "embodies a public obligation that . . . inures to the benefit of the citizens of Connecticut as a whole." The second is that a public obligation created by statute "cannot be waived by any individual or group of individuals." From these two premises, the majority infers that the training provision of § 10-223e (h) embodies a public obligation that no one, including local boards of education, is competent to waive.
The problem with this argument is that neither premise is plausible. In support of the first premise, that the training provision "embodies a public obligation that . . . inures to the benefit of the citizens of Connecticut as a whole," the majority asserts that the purpose of the training provision is to ensure that reconstitution occur only upon adequate public notice and in a manner that is deliberate and transparent. As I have explained, this purported purpose is something that the majority simply creates out of whole cloth.
In support of its second premise, that a public obligation created by statute cannot be waived by any individual or group of individuals, the majority provides a rather lengthy argument, which I discuss more fully hereafter. In brief, no part of this argument withstands scrutiny. Far from analyzing any of our prior holdings, the majority merely plucks superficially favorable language from various judicial opinions, paying little regard to whether the language in question is dictum or holding, and paying even less regard to whether the underlying opinions are on point. Not one of the five opinions that the majority cites in the text of its opinion
The majority relies foremost on several sentences from a dissenting opinion in In re Application for Petition for Writ of Habeas Corpus by Dan Ross, 272 Conn. 676, 719-20, 866 A.2d 554 (2005) (Lavery and Dranginis, Js., dissenting), a case in which the court permitted a death row inmate to waive his statutory right to seek habeas review of his sentence. See id., at 678-79, 866 A.2d 554. The majority omits the fact that the bulk of the following passage, including the sentence that the majority italicizes, is a verbatim quotation from a long since deleted portion of an almost half-century-old edition of a legal encyclopedia, namely, American Jurisprudence 2d: "[W]aiver is not . . . allowed to operate so as to infringe [on] the rights of others, or to transgress public policy or morals.
"The public interest may not be waived. [When] a law seeks to protect the public as well as the individual, such protection to the state cannot, at will, be waived by any individual, an integral part thereof. The public good is entitled to protection and consideration and if, in order to effectuate that object, there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good. . . . Accordingly, a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Application for Petition for Writ of Habeas Corpus by Dan Ross, supra, 272 Conn. at 719-20, 866 A.2d 554, quoting 28 Am. Jur.2d 847, Estoppel and Waiver § 161 (1966). Even if this language were the law, instead of an excerpt from a defunct portion of an encyclopedia entry, the language still would not support the majority's position that the training provision of § 10-223e (h) is not waivable. First, the Bridgeport board is not an individual; it is a duly elected representative body. Second, the training provision of § 10-223e (h) is not "a statutory right conferred on a private party . . . but affecting the public interest. . . ." Id., at 720, 866 A.2d 554. Rather, it is a benefit conferred on the locality as a whole. Third, the Bridgeport board's waiver of the training provision did not "contravene the statutory policy." Id. On the contrary, when that board waived the training provision with the stated intention of "enabl[ing] the Bridgeport public schools to fulfill their statutory and constitutional responsibilities," the board clearly was acting in furtherance of the statute's policy of "improv[ing] student performance and remov[ing] the . . . district from the list of . . . districts designated. . . as . . . low achieving. . . ." General Statutes § 10-223e (c)(2).
Also irrelevant for present purposes are Beasley v. Texas & Pacific Railway Co., 191 U.S. 492, 24 S.Ct. 164, 48 L.Ed. 274 (1903), a case having nothing to do with waiver, in which the court held that specific
L'Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), which I discuss later, is the only binding case from which the majority culls language that fairly can be characterized as a holding. The other binding case on which the majority relies is Hatch v. Merigold, 119 Conn. 339, 343, 176 A. 266 (1935). Quoting Hatch, the majority observes that this court "previously [has] held that `[o]ne cannot waive a public obligation created by statute . . . but he may waive a statutory requirement the purpose of which is to confer a private right or benefit.'" (Emphasis added.) Contrary to what the majority implies, Hatch did not hold that "[o]ne cannot waive a public obligation. . . ." Hatch v. Merigold, supra, at 343, 176 A. 266. Rather, Hatch held, inter alia, that a particular statutorily created presumption—specifically, a presumption that the decedent in a wrongful death case had exercised reasonable
The upshot is that the majority cites only one Connecticut case that, on its face, might seem to provide any support for the majority's position. That case is L'Heureux v. Hurley, supra, 117 Conn. at 347, 168 A. 8, a 1933 personal injury case in which the court held that a tenant could not waive a landlord's statutory duty to illuminate common areas of a building at night. Id., at 355-56, 168 A. 8. L'Heureux provides no actual support for the majority's position because a tenant is a private individual who, unlike the Bridgeport board, obviously is not entitled to act on behalf of the segment of the public that the statute in question aims to protect. Ignoring this difference, the majority divines a holding of sweeping breadth in the court's observation in L'Heureux that "[o]ne cannot give what one does not possess. One may waive a personal obligation of another to the one waiving. One cannot waive an obligation owed by another to the public." Id. The majority seizes on this language and reads the word "one" so broadly as to encompass not just private individuals but also duly elected representative bodies. There is no basis for this broad reading, either in the reasoning of L'Heureux or in that of any other case the majority cites.
In a final attempt to prove that the training provision is not waivable, the majority offers the following argument based in general principles of administrative law: "Because the training provision [in § 10-223e (h)] defines the scope of the grant of [the reconstitution] power from the legislature
Having explained why each of the majority's arguments is meritless, I now explain why I would resolve this fundamentally straightforward case by concluding that a local board of education is competent to waive whatever protection § 10-223e (h) might afford a locality against a state takeover. I begin with a few basic principles. It well established that waiver is the "intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); accord Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 57, 970 A.2d 656, cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., ____ U.S. ____, 130 S.Ct. 500, 175 L.Ed.2d 348 (2009). "As a general rule, both statutory and constitutional rights and privileges may be waived." Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, at 57, 970 A.2d 656. Indeed, as I noted previously, this court has recognized that mandatory statutory provisions are "typically" subject to waiver. Santiago v. State, supra, 261 Conn. at 543, 804 A.2d 801; see also United States v. Mezzanatto, supra, 513 U.S. at 200-201, 115 S.Ct. 797 ("[r]ather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered to the opposite presumption"); Shutte v. Thompson, supra, 82 U.S. (15 Wall.) at 159 ("[a] party may waive any provision, either of a contract or of a statute, intended for his benefit").
Because of the general presumption in favor of waiver, and because it is fundamental that a representative body possesses the authority to make binding decisions on behalf of its constituents, it is self-evident that a local board of education possesses the authority to waive the locality's interest in retaining control of public education. Besides being self-evident, this result also follows from general principles. Because the role of a local board of education is not to make law but to implement it; see General Statutes § 10-220(a); a local board is functionally an arm of the executive branch. As an arm of the executive branch, a local board serves as an
If a local board of education can have a duty to waive the locality's interest in control, then, a fortiori, it can have the authority to waive the locality's interest in control. To conclude otherwise, as the majority effectively does, is to countenance the possibility of a conflict between the local board's role as agent of the local electorate and its role as agent of the state. If such a conflict were possible, it would be necessary to resolve the conflict in favor of the local board's role as an agent of the state, because, in its role as agent of the state, the local board acts under a duty of constitutional magnitude. See Connecticut Assn. of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 563, 499 A.2d 797 (1985) ("[a]lthough the local boards [of education] may at times have divided loyalties, [i]t is an established principle that local charter powers must yield to the superior power of the state when the two enter a field of statewide concern" [internal quotation marks omitted]). In reality, however, no such conflict is possible. As I stated at the outset, we honor the principle of local control by permitting a local board of education to waive the training contemplated by § 10-223e (h) in order to discharge as expeditiously as possible the local board's duty to promote the interests of the schoolchildren.
The present case readily may be resolved on the basis of the Bridgeport board's July 5, 2011 resolution "concerning a request to the state board of education." It is undisputed that, on July 5, 2011, by a vote of six to three, the Bridgeport board passed a resolution stating: "WHEREAS, the Bridgeport [b]oard has received training in the skills needed to function effectively as a [b]oard of [e]ducation, but such training has not enabled the [b]oard to carry out its statutory responsibilities, and the Bridgeport [b]oard does not believe that further training would be productive or would enable the [b]oard to carry out those responsibilities....
"[T]he Bridgeport Board hereby requests that the [s]tate [b]oard, acting pursuant to the ... General Statutes, including, but not limited to ... § 10-223e (h), authorize the [c]ommissioner ... to reconstitute the Bridgeport [b]oard ... in accordance with statutory authority, and that the [s]tate [b]oard take such other statutorily authorized actions as may enable the Bridgeport public schools to fulfill their statutory and constitutional responsibilities." On its face, this resolution plainly constitutes the "intentional relinquishment... of a known right" to the training contemplated by § 10-223e (h); Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. 1019; accord Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. at 57, 970 A.2d 656; a relinquishment that the Bridgeport board undertook in the avowed belief that further training would not enable it to carry out its responsibility to provide a suitable education to Bridgeport schoolchildren. Because the Bridgeport board waived the training provision, the state board acted lawfully when it reconstituted the Bridgeport board pursuant to § 10-223e (h).
The plaintiffs offer several meritless arguments in support of their contention that the Bridgeport board lacked the authority to enact a resolution requesting the state board to reconstitute it. The plaintiffs in the Farrar-James case contend that the Bridgeport board did not have the authority to remove its own members by resolution. This is true but irrelevant because the Bridgeport board simply did not remove its own members, either by resolution or by any other means. Rather, it was the state board that removed the Bridgeport board members. The Bridgeport board merely invited the state board to act. When the state board authorized reconstitution, it acted autonomously, not at the command of the Bridgeport board.
Finally, the plaintiffs raise several constitutional challenges to § 10-223e (h) that it is necessary for me to address in light of my conclusion that a local board of education is competent to waive the protections embodied in that statute and that the Bridgeport board validly waived them. The plaintiffs contend that § 10-223e (h) is unconstitutional because it violates the home rule provision of article tenth, § 1,
The plaintiffs contend that § 10-223e (h) violates the home rule provision of article tenth, § 1, of the state constitution because § 10-223e (h) interferes with municipal charter provisions governing the organization and election of local boards of education and because it undermines municipal control over local budgetary concerns. This claim is wholly meritless because it is beyond dispute that education is a matter of statewide concern. Our case law establishes unequivocally that a statute of general application, such as § 10-223e (h), runs afoul of article tenth, § 1, only when it purports to regulate a matter of purely local concern and, even then, only if it conflicts with a local charter provision governing the same general subject matter. See, e.g., Board of Education v. Naugatuck, 268 Conn. 295, 307, 843 A.2d 603 (2004) (in determining whether statute violates home rule provision, "we must determine whether [it] pertains to a matter of statewide concern such that it preempts any conflicting provisions of the charter"); Carofano v. Bridgeport, 196 Conn. 623, 631, 495 A.2d 1011 (1985) (statute of general applicability conflicts with home rule provision of state constitution only when "its purpose or its operation involves subjects of purely local concern"); Caulfield v. Noble, 178 Conn. 81, 87, 420 A.2d 1160 (1979) ("a general law, in order to prevail over a conflicting charter provision of a city having a home rule charter, must pertain to those things of general concern to the people of the state").
Even if § 10-223e (h) conflicted with a provision of the Bridgeport Charter governing the same general subject matter, the plaintiffs could not prevail on their claim under article tenth, § 1, because "[t]here can be no dispute ... that the education of our schoolchildren is an issue of statewide concern." (Emphasis added.) Board of Education v. Naugatuck, supra, 268 Conn. at 309, 843 A.2d 603; see also Cheshire v. McKenney, supra, 182 Conn. at 257-58, 438 A.2d 88 ("[T]he furnishing of an education for the public is a state function and duty.... This duty is placed [on] the state by article eighth, § 1, of the state constitution and is delegated to local school boards by state statute.... There is no question but that local boards of education act as agencies of the state when they are fulfilling the statutory duties imposed [on] them pursuant to the constitutional mandate of article eighth, § 1." [Citations omitted.]).
Furthermore, to the extent that any local charter provision conceivably might conflict with the state's constitutional and statutory authority to furnish a suitable education to the schoolchildren of this state—in this case by reconstituting the local board of education in a chronically failing school district—there can be no question but that such a charter provision would have to yield to the state's authority to carry out its mandate. Connecticut Assn. of Boards of Education, Inc. v. Shedd, supra, 197 Conn. at 563, 499 A.2d 797 ("[a]lthough the local boards may at times have divided loyalties, [i]t is an established principle that local charter powers must yield to the superior power of the state when the two enter a field of statewide concern" [internal quotation marks omitted]); see also City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980) ("the only powers a municipal corporation has are those which are expressly granted to it by the state"); Waterford v. State Board of Education, 148 Conn. 238, 245, 169 A.2d 891 (1961) ("local boards of education are creatures of the state," exercising only such powers that state has conferred on them).
The plaintiffs also contend that § 10-223e (h) violates the free suffrage provision of article sixth, § 4, of the Connecticut constitution because it authorizes the removal from office of duly elected school board officials prior to the expiration of their terms, and because it prevents other candidates from running for office during the reconstitution period. In support of this claim, the plaintiffs argue, inter alia, that § 10-223e (h) "restricts the right of suffrage by disenfranchising the citizens who voted for the [removed] official" and "infringes [on] the free suffrage rights of those from ... Bridgeport ... who are
This claim founders on the plaintiffs' false assumption that the right to free suffrage, as established under article sixth, § 4, encompasses a right to elect and serve on local boards of education. The plaintiffs can cite no authority to support this assumption because it is well settled that there simply is no right to elect and serve on local boards of education. See, e.g., Moore v. Detroit School Reform Board, 293 F.3d 352, 365 (6th Cir.2002) ("The comparison that the plaintiffs seek to make between their ability to elect school board members before the [Michigan School Reform Act (act)] was enacted and their inability to do so under the [act] thus involves circular reasoning. Specifically, they appear to complain about lacking the right to do something [elect school board members] that they never had a fundamental right to do."). As the United States Supreme Court stated in Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967): "Political subdivisions of [s]tates—counties, cities, or whatever [including local boards of education]—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the [s]tate to assist in the carrying out of state governmental functions.... [T]hese governmental units are created as convenient agencies for exercising such of the governmental powers of the [s]tate as may be entrusted to them, and the number, nature and duration of the powers conferred upon [them] ... and the territory over which they shall be exercised rests in the absolute discretion of the [s]tate. We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., at 107-108, 87 S.Ct. 1549. The plaintiffs simply ignore this precedent, which establishes that there is no right to elect or serve on local boards of education.
The plaintiffs also ignore precedent establishing that the state has virtually unfettered authority to set the terms by which local boards of education may exist and carry out their delegated duties. See id., at 109, 87 S.Ct. 1549 ("[T]he state legislatures have constitutional authority to experiment with new techniques ... when it comes to municipal and county arrangements within the framework of a [s]tate. Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs." [Citations omitted; internal quotation marks omitted.]); City Council v. Hall, supra, 180 Conn. at 250 n. 6, 429 A.2d 481 ("[t]he number, nature and duration of the powers conferred [on municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the [s]tate" [internal quotation marks omitted]).
The legislature, acting pursuant to the state's authority to set the terms by which local boards of education may exist and carry out their delegated duties, has enacted General Statutes § 9-185,
Finally, the plaintiffs contend that § 10-223e (h) violates the equal protection provisions of article first, §§ 1 and 20, of the Connecticut constitution because it impinges on their "fundamental right to seek election" to the Bridgeport board. As I explained earlier, the plaintiffs possess no such right, fundamental or otherwise.
To their credit, the plaintiffs do not argue that § 10-223e (h) fails rational basis review. Indeed, no such argument legitimately could be maintained, both because of the pressing problem that § 10-223e seeks to address—that of chronically underperforming school districts—and because reconstituting an intractably dysfunctional local board of education is a manifestly rational way of carrying out the statute's purpose. The plaintiffs' equal protection challenge therefore fails.
It has long been said that hard cases make bad law. This case shows that easy cases can make bad law as well. It is evident that the state board did not violate § 10-223e (h) in authorizing the commissioner to reconstitute the Bridgeport board; the Bridgeport board had the authority to adopt a resolution requesting that the state board reconstitute it, and § 10-223e does not violate the home rule provision of article tenth, § 1, of the state constitution, the free suffrage provision of article sixth, § 4, or the equal protection provisions of article first, §§ 1, 4, and 20. Accordingly, I dissent.
Four other questions are presented in the reservation: (1) whether § 10-223e (h) violates article tenth, § 1, of the constitution of Connecticut; (2) whether § 10-223e (h) violates article sixth, § 4, of the constitution of Connecticut; (3) whether § 10-223e (h) violates article first, §§ 1, 4 and 20, of the constitution of Connecticut; and (4) whether the local board had the legal power or authority to adopt a resolution requesting its reconstitution by the state board.
Because we decide the issues presented by the reservation solely on a statutory basis, we do not reach the constitutional questions. See, e.g., In re Shanaira C., 297 Conn. 737, 754, 1 A.3d 5 (2010) ("we must be mindful that [t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case" [internal quotation marks omitted]). Moreover, we need only address the question of whether the local board had the authority to request that the state board authorize reconstitution to the extent that it is germane to our statutory analysis of § 10-223e (h).
General Statutes § 10-223e (a) provides in relevant part: "In conformance with the [federal] No Child Left Behind Act . . . the Commissioner of Education shall prepare a state-wide education accountability plan, consistent with federal law and regulation. Such plan shall identify the schools and districts in need of improvement, require the development and implementation of improvement plans and utilize rewards and consequences."
The resolution concluded by stating: "NOW THEREFORE BE IT RESOLVED that the [local board] hereby requests that the [s]tate [b]oard, acting pursuant to the . . . General Statutes, including, but not limited to. . . . § 10-223e (h), authorize the [c]ommissioner. . . to reconstitute the [local board] in accordance with statutory authority, and that the [s]tate [b]oard take such other statutorily authorized actions as may enable the Bridgeport public schools to fulfill their statutory and constitutional responsibilities."
"(b) All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
"(c) Before any question shall be reserved by any court, counsel shall file in that court a stipulation which shall clearly and fully state the question or questions upon which advice is desired; that their present determination by the appellate court having jurisdiction would be in the interest of simplicity, directness and economy in judicial action, the grounds for such allegation being particularly stated; that the answers to the questions will determine, or are reasonably certain to enter into the final determination of the case; and that the parties request that the questions be reserved for the advice of the appellate court having jurisdiction. The stipulation shall also designate the specific pleadings in the trial court case file which are necessary for the presentation of the question or questions sought to be reserved and shall state the undisputed facts which are essential for determination of the question or questions sought to be reserved. . . .
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"(e) The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . ."
Additionally, we note that the dissent relies on these statistics to "help explain why barring local boards of education from waiving the training provision would frustrate the purpose of § 10-223e." We disagree. As evidenced by the language of the statute and the legislative history on which both the majority and dissent rely, one of the purposes of the statute is to provide training and other assistance to local boards of education in order to improve the performance of local schools and school districts. Thus, contrary to the dissent's reasoning, barring local boards from waiving the training provision furthers, rather than frustrates, the statute's purpose.
"[Representative Candelora]: . . . [O]nce a school is deemed to be low achieving, as I read this, the mechanism would be that the commissioner would send that board of education to complete a training course. If that board of education completes that training course, as I read this, it seems that the commissioner could then sort of monitor, but would still have the ability to recommend reconstitution of that board of education. Am I correct in that?
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"[Representative Fleischmann]: . . . I believe that power resides in the [s]tate [b]oard of [e]ducation, but I think the rest of the characterization was accurate." (Emphasis added.) 53 H.R. Proc., Pt. 15, 2010 Sess., p. 4675.
"The referendum that people mostly have is at the polling booth. If they believe their [b]oard of [e]ducation is failing . . . [t]hey could vote them out. . . . That's democracy." (Emphasis added.) 53 H.R. Proc., Pt. 15, 2010 Sess., pp. 4631-32.
Like Representative Giuliano, Representative Cafero ultimately voted against the bill. Although that may weaken the force of Representative Cafero's argument with regard to whether reconstitution itself is a proper power to grant the state board, it does not alter the fact that his view of Connecticut's educational administration coincides with the policy embodied in the statutory scheme. Indeed, although Representative Fleischmann clarified or corrected some of Representative Cafero's statements, he did not challenge Representative Cafero's emphasis on the importance of local control. See generally id., at pp. 4633-35, remarks of Representative Fleischmann. It does not appear that any representatives disagreed with the overall preference for local control of education in Connecticut.
Moreover, subsection (h) is not "a statutory amendment that construes and clarifies a prior statute [and therefore] operates as the legislature's declaration of the meaning of the original act." Darak v. Darak, 210 Conn. 462, 471, 556 A.2d 145 (1989). Subsection (h) constitutes a recent grant of power to the state board that the legislature did not initially confer under the original framework of § 10-223e. Indeed, the dissent's recitation of the genesis of subsection (h) supports this conclusion. For that reason, the dissent's primary focus on the legislative history of § 10-223e prior to the enactment of subsection (h), rather than the legislative history surrounding subsection (h), is misplaced. Nor could it be reasonably argued that the failure to provide reconstitution authority was an initial oversight by the legislature, subsequently corrected with the addition of subsection (h). Indeed, the legislative history on which the dissent relies suggests that one of the principal reasons why the legislature amended § 10-223e by adding subsection (h)—as part of an omnibus education reform bill that concerned, inter alia, charter schools and local governance councils—was to secure federal funding. See Public Acts 2010, No. 10-111, §§ 11, 21; see also part I of the dissenting opinion.
Nevertheless, to the extent that the defendants and the dissent rely on either article eighth, § 1, of the Connecticut constitution or the plurality's reasoning in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 990 A.2d 206 (2010) (Connecticut Coalition), as informing whether a local board of education can waive the state board's obligation to provide training prior to the authorization of reconstitution under § 10-223e (h), that reliance is misplaced. Specifically, in Connecticut Coalition, the plurality concluded that "article eighth, § 1, entitles Connecticut public school students to an education suitable to give them the opportunity to be responsible citizens able to participate fully in democratic institutions, such as jury service and voting. A constitutionally adequate education also will leave Connecticut's students prepared to progress to institutions of higher education, or to attain productive employment and otherwise contribute to the state's economy. To satisfy this standard, the state, through the local school districts, must provide students with an objectively `meaningful opportunity' to receive the benefits of this constitutional right." (Emphasis added.) Id., at 314-15, 990 A.2d 206. The plurality expressly clarified the limits of its reasoning: "We emphasize that our conclusion. . . is not intended to supplant local control over education . . . [or to] deprive parents [of] a true say in their children's education. We are cognizant of the risks and separation of powers concerns attendant to intensive judicial involvement in educational policy making . . . and emphasize that our role in explaining article eighth, § 1, is to articulate the broad parameters of that constitutional right . . . and to leave their implementation to the expertise of those who work in the political branches of state and local government, informed by the wishes of their constituents." (Citation omitted; internal quotation marks omitted.) Id., at 317 n. 59, 990 A.2d 206. Thus, we do not find support in either article eighth, § 1, of the Connecticut constitution or the reasoning of the plurality in Connecticut Coalition for the proposition that the state board has the constitutional authority to reconstitute a local board of education by any means other than those enumerated in § 10-223e (h). We therefore also disagree with the dissent's focus on the general statutory and constitutional educational obligations of the state board and local boards of education as being determinative of whether the training requirement in § 10-223e (h) can be waived. The legislature's decision to delineate a specific process that must be followed for reconstitution is its expression of how the state board can further the educational policy in this state.
This does not, however, diminish the importance of the training requirement. We reject the dissent's mischaracterization of our reasoning here as stating that the requirement is only a "speed bump. . . ." Footnote 6 of the dissenting opinion.
Additionally, we find the dissent's contrary analysis unpersuasive. The dissent provides no basis for its conclusion that waiver occurred in the present case other than by relying on the inherently ambiguous language of the local board's resolution. Despite the dissent's attempt to portray the language of that resolution as supporting only one conclusion, namely, that the local board intended to waive training, it is equally if not more clear that the language supports a conclusion that the local board believed that the statute had been substantially complied with because the local board already had received some training. Indeed, both the local board hearing held on July 5, 2011, and the state board hearing held on July 6, 2011, are notable for the absence of any discussion of waiver. Remarkably, during the state board hearing, only one state board member tangentially raised the issue of training with Bellinger, the president of the local board. In response, Bellinger stated that the local board had not received enough training and could benefit from additional training. We initially note that the dissent dismisses these statements and instead selectively focuses only on those statements made by local board members that support the dissent's conclusion. Thus, in contrast to the dissent's conclusion that the local board resolution plainly supports a finding of waiver, the discussion at the state board meeting militates against such a finding. At the very least, it injects ambiguity into the meaning of the local board resolution, ambiguity that the dissent ignores.
We also clarify that, in addressing this argument, we do not accept the defendants' claim that the training in which certain of the local board members participated in 2010 should be treated as the functional equivalent of the training required under § 10-223e (h). As appellate counsel for the defendants conceded during oral argument before this court, as of October, 2011, there were no regulations, policies or standards in place for the specific type of training that the state board would require a local board of education to complete under § 10-223e (h). Indeed, the local board appears to be the first local or regional board of education reconstituted under § 10-223e (h). Because the local board did not undergo training specifically ordered by the state board pursuant to § 10-223e (h), there also is no precedent for determining what type of training the state board would require under the statute, or for determining how the state board factors satisfactory completion of training into its ultimate decision to authorize reconstitution.
In support of its reliance on the remarks of Representative Marilyn Giuliano, who voted against P.A. 10-111, the majority claims that her remarks are relevant "to show that the legislature was aware of the full implications of § 10-223e (h)"; footnote 21 of the majority opinion; in particular, that § 10-223e (h) empowered the state to dissolve a duly elected body. In making this claim, the majority ignores the incontrovertible fact that, if the legislature passed P.A. 10-111 despite being aware that it empowered the state to dissolve a duly elected body, the legislature could not have found this grant of power to be troubling or problematic. The majority also contends that the fact that the legislature passed P.A. 10-111 over Representative Giuliano's concerns "does not negate the veracity of these concerns. . . ." Id. No matter how "veraci[ous]" Representative Giuliano's concerns might have been, however, the fact that the legislature passed P.A. 10-111 notwithstanding those concerns certainly calls into question whether they reflected the concerns of the legislature as a whole. In addition to quoting Representative Giuliano, the majority quotes Representative Lawrence F. Cafero, Jr., another opponent of P.A. 10-111, who stated: "[W]e take [great] pride . . . here in New England, and Connecticut in particular, about local control. . . . The referendum that people mostly have is at the polling booth. If they believe their [b]oard of [e]ducation is failing . . . [t]hey could vote them out. . . ." 53 H.R. Proc., Pt. 15, 2010 Sess., pp. 4631-32. The majority acknowledges that Representative Cafero voted against P.A. 10-111 but asserts that his remarks are relevant nonetheless because his "view of Connecticut's educational administration coincides with the policy embodied in the statutory scheme." Footnote 24 of the majority opinion. In light of the fact that the statutory scheme unquestionably undermines local control of failing schools, I am unable to understand the majority's assertion.
In its search for the legislature's intent, the majority relies not only on irrelevant legislative history but also on an assortment of cases and other statutes that actually support the opposite of the majority's conclusion. The majority cites two cases, namely, New Haven v. State Board of Education, 228 Conn. 699, 638 A.2d 589 (1994), and West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972), in support of its contention that the legislature did not intend that § 10-223e (h) would supplant Connecticut's long-standing policy of preferring local control over education. Both of these cases were decided many years before the sweeping changes to Connecticut's education law that culminated in the enactment of § 10-223e (h). More to the point, both of these cases, in language that the majority itself quotes, affirm that the predominant interest in public education belongs not to Connecticut's various localities but to the state. New Haven v. State Board of Education, supra, at 703, 638 A.2d 589 ("[t]he state board is charged with the broad and general power to supervise and control the educational interests of the state" [emphasis added; internal quotation marks omitted]); West Hartford Education Assn., Inc. v. DeCourcy, at 573, 295 A.2d 526 ("[t]he state has had a vital interest in the public schools from the earliest colonial times"). The majority also cites a handful of statutes in the same or surrounding chapters of the General Statutes—§ 10-220(a), (b) and (e), § 10-4g (a) and (b), and § 10-221(a) and (b)—that, in the majority's view, "demonstrate a clear policy of defining a supervisory role for the state board separate and distinct from local boards. . . ." Footnote 22 of the majority opinion. These statutes are irrelevant to the present case. To the extent that the statutes evince a policy of defining a supervisory role for the state board separate and distinct from local boards, they evince such a policy only with respect to school districts that are not failing. With respect to school districts that are failing, § 10-223e establishes a contrary policy, one of robust state direction and control. Connecticut education law may still evince a general policy of preferring and preserving local control, but no such policy pertains to Connecticut's failing school districts.
A further reason why the majority disputes my assertion that the state board properly could reconstitute a local board in a fashion that affords the locality no notice whatsoever is that, in the majority's view, reconstituting a board in such a fashion would "[frustrate] one of the purposes of the training requirement that [it has] identified, namely, to provide notice." Footnote 27 of the majority opinion. The majority simply begs the question, arguing that, because the training provision serves to provide notice of an impending reconstitution, the state board properly could not reconstitute a local board of education in a manner that affords the locality no notice whatsoever. The far more logical inference runs the other way. Because it is obvious from the plain meaning of the statute that the state board properly could reconstitute a local board of education in a manner that provides the locality no notice whatsoever, providing notice cannot possibly be the training provision's purpose.
In asserting that the July 5 resolution was ambiguous with respect to whether the Bridgeport board intended to waive the training provision, the majority trades on the law's well-known aversion to countenancing ambiguous waivers. That aversion simply is irrelevant to this case. The obvious rationale behind the law's aversion to countenancing ambiguous waivers is to protect those who might claim that they did not waive a right, specifically by requiring the adverse party—the party claiming that waiver occurred—to prove its claim through competent evidence. I am not aware of any case, and the majority cites none, in which the law's reluctance to countenance ambiguous waivers was invoked to defeat a party's claim that it did waive a right.
Even if such a case existed, the defendants would have no trouble demonstrating that the Bridgeport board waived the training requirement. To do so, the defendants would need to demonstrate only that, when the Bridgeport board voted for reconstitution, it was aware of its statutory right to training. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 252, 618 A.2d 506 (1992) ("[a]ssuming [the threshold applicability of the doctrine of] implied waiver [to the present case]... the plaintiff[s] would ... have to make a showing that the defendants knew of their right[s] [under the statute] ... before they could [intentionally] waive [them]"). The record is replete with evidence that the Bridgeport board was aware of that statutory right. Not only did the July 5 resolution expressly reference § 10-223e (h), but the transcript of the hearing at which the resolution was adopted reveals that the discussion actually centered on the issue of whether the mandatory training provision precluded the Bridgeport board from adopting the proposed resolution. One of the named plaintiffs, Maria Pereira, argued vehemently that it did, reading aloud from the statute in an unsuccessful attempt to persuade her fellow board members that the Bridgeport board could not pass the resolution until after it had received training. Barbara Bellinger, president of the Bridgeport board, took the opposite position, stating: "I disagree [that the state board cannot authorize reconstitution unless and until there has been compliance with mandatory training]. [W]e have already discussed this with the state board ... and they have indicated that we [can] move forward, that efforts for training have been fulfilled and that further training would not ameliorate the situation....
"[H]aving experienced some training with some members of this board, [I] do not believe that further training, given the level of dysfunctionality that we're experiencing, will help us. We need a new idea, we need the state's assistance, we need [the state] to step in and help fix these issues.... And training isn't the answer to that. Training is the answer to a lot of things, especially when people are willing to collaborate and work together on issues."
Furthermore, even though no one at the Bridgeport board hearing formally described the board's resolution as a "waiver" of the training provision, it is indisputable that "[w]aiver need not be express, but may consist of acts or conduct from which a waiver may be implied.... In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn, at 252, 618 A.2d 506. In the present case, one would have to blink at reality in order to maintain that the Bridgeport board waived the training requirement without full awareness of its right to receive additional training prior to reconstitution. It is clear that the Bridgeport board was aware of that right but had concluded that, given its extreme level of dysfunction and acrimony, no amount of training would have enabled it to fulfill its constitutional duties to the schoolchildren of Bridgeport.
In view of these facts, the majority's assertion that the evidence is inadequate to support a finding of waiver is nothing short of astounding. This court has found an implicit waiver of a constitutional right on the basis of far less evidence. See State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011) (holding that defendant will be found to have knowingly and intentionally waived by implication his constitutional right to adequate jury instruction when counsel was provided copy of proposed instructions and, after meaningful opportunity to review and comment on them, counsel affirmatively accepted proposed instructions even though record contained no other indicia of waiver).
The majority accuses me of dismissing a statement that Bellinger made at the state board hearing on July 6, 2011, a statement that, according to the majority, "injects ambiguity" into the meaning of the July 5 resolution and calls into question whether the local board intended to waive its right to training. Footnote 39 of the majority opinion. In the majority's words, Bellinger "stated that the [Bridgeport] board had not received enough training and [perhaps] could benefit from additional training." Id. Viewed in their proper context, however, Bellinger's actual statements inject no ambiguity at all into the meaning of the July 5 resolution. When a member of the state board asked Bellinger to identify the main "divide" on the Bridgeport board, she responded, "the divide is on almost every issue." The same state board member then queried: "I know you are a training professional You said [the Bridgeport board] had training. What kind of training have you had? Have you had lighthouse training?" Bellinger responded: "We had training that I arranged for with an outside consultant, to help people understand their roles and responsibilities. It was not attended by 100 percent of [our members], nor do I feel that that was adequate training. Don't forget, I am a training person. I really think that training is important." Whatever the significance of these particular remarks, Bellinger's testimony as a whole contains repeated assertions that no amount of training could enable the Bridgeport board to achieve its objectives, given its profound level of dysfunction. Marion Martinez, a representative of the state department of education, reinforced Bellinger's view, explaining that the training programs then offered by the state, including the lighthouse program, simply were not designed to address the kind of problem that the Bridgeport board was experiencing. As Martinez succinctly put it, "lighthouse does not repair damaged relationships."
