Justia.com Opinion Summary: Plaintiff, the commissioner of labor, applied to the superior court for a warrant to inspect the premises of Defendant, a fire company, to investigate whether the fire company was in compliance with the requirements of Connecticut's Occupational Safety and Health Act. The trial court dismissed for lack of subject matter jurisdiction the commissioner's warrant application, concluding that the fire company did not fall within the act's definition of a covered employer, which by statutory definition was "the state and any political subdivision thereof" because the fire company was an independent corporation. The Supreme Court affirmed, holding that the fire company did not fall within the core definition of a political subdivision of the state.
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PATRICIA H. MAYFIELD, COMMISSIONER OF LABOR
v. GOSHEN VOLUNTEER FIRE COMPANY, INC.
(SC 18378)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and
Harper, Js.
Argued April 18—officially released August 2, 2011
Richard T. Sponzo, assistant attorney general, with
whom, on the brief, were Richard Blumenthal, former
attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (plaintiff).
Ian E. Bjorkman, for the appellee (defendant).
Opinion
HARPER, J. The plaintiff, Patricia H. Mayfield, the
commissioner of labor (commissioner), appeals from
the judgment of the trial court dismissing for lack of
subject matter jurisdiction the commissioner’s warrant
application seeking to inspect the premises of the defendant, Goshen Volunteer Fire Company, Inc. (fire company), to investigate whether the fire company was
in compliance with the requirements of Connecticut’s
Occupational Safety and Health Act (act),1 General Statutes § 31-367 et seq.2 The commissioner contends that
the trial court improperly concluded that the fire company does not fall within the act’s definition of a covered
employer as ‘‘the state and any political subdivision
thereof . . . .’’ General Statutes § 31-367 (d). We agree
with the trial court and, accordingly, affirm its
judgment.
The record reveals the following undisputed facts
and procedural history. The fire company is a nonprofit,
nonstock membership corporation that serves as the
primary source of fire suppression for the town of Goshen (town).3 All members of the fire company are volunteers; they receive no salary or pension but are eligible
to receive workers’ compensation benefits from the
town. The fire company has its own bylaws and constitution, under which its members elect officers, who are
in turn responsible for the company’s operations; the
town plays no role in officer selection or operations.
The town has an oral contract with the fire company
for fire protection, which may be terminated on sixty
days’ notice. The fire company leases its land, which
it previously gave to the town, and its building from
the town for $1 per year. Many of the company’s vehicles
are town financed, though the company has purchased
some through independent fundraising.
The present litigation arose after the commissioner
was denied access to the fire company’s firehouse for
the purpose of conducting an inspection to see if it was
in compliance with safety and health requirements. In
response, the commissioner applied to the Superior
Court for a warrant to inspect the firehouse pursuant to
General Statutes § 31-374 (a). The warrant application
alleged that a videotape of members of the fire company
conducting a ‘‘live burn’’ training exercise without wearing full protective gear required under the respiratory
protection standards of the act provided probable cause
to believe that conditions in the firehouse posed a threat
to health or safety.
The fire company moved to dismiss the warrant application for want of subject matter jurisdiction. After a
hearing, the trial court granted the motion, holding that
the fire company falls outside the scope of the act,
which grants the commissioner jurisdiction only over
an ‘‘[e]mployer,’’ which is defined in § 31-367 (d) as ‘‘the
state and any political subdivision thereof . . . .’’ The
trial court reasoned that, because it is not a unit of
government but, rather, an independent corporation,
the fire company does not fall within the meaning of
‘‘political subdivision’’ in § 31-367 (d) and therefore is
not an employer under the act. Accordingly, the trial
court rendered judgment dismissing the commissioner’s warrant application. This appeal followed.
The commissioner claims that the trial court improperly limited its analysis to the question of whether the
fire company itself is a political subdivision of the state,
contending that the fire company should be deemed
a covered employer if it is an agency of a political
subdivision. The commissioner further contends that
the fire company’s status as an agency of the town
should be determined by applying the ‘‘functional equivalent’’ test developed in case law to determine whether
a nominally private corporation is a ‘‘[p]ublic agency’’;
General Statutes § 1-200 (1); for purposes of the Freedom of Information Act. General Statutes § 1-200 et seq.
The commissioner contends that, under this test, the
fire company is an agency of the town and, accordingly,
an employer subject to the act. The fire company
responds by claiming that the trial court properly construed the plain and unambiguous meaning of the term
political subdivision in § 31-367 (d) to exclude the fire
company and that the act’s text does not support reliance on the functional equivalent test. We agree with
the fire company.
Before turning to the merits of the commissioner’s
claim, we first address the proper standard for this
court’s review. ‘‘The standard of review for a court’s
decision on a motion to dismiss is well settled. A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo.’’ (Internal quotation marks omitted.) Tayco
Corp. v. Planning & Zoning Commission, 294 Conn.
673, 679, 986 A.2d 290 (2010). The issue in this case,
namely, whether the trial court properly concluded that
the fire company is not a political subdivision for purposes of § 31-367 (d), is one of statutory construction.
It is therefore a question of law over which we exercise
plenary review. Id.
‘‘When construing a statute, [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.) Pasquariello v.
Stop & Shop Cos., 281 Conn. 656, 663–64, 916 A.2d
803 (2007).
We begin with General Statutes § 31-369, which sets
forth the act’s scope. That section provides in relevant
part: ‘‘This chapter applies to all employers, employees
and places of employment in the state except the following: (1) Employees of the United States government;
and (2) working conditions of employees over which
federal agencies other than the United States Department of Labor exercise statutory authority to prescribe
or enforce standards or regulations affecting occupational safety and health.’’ (Emphasis added.) General
Statutes § 31-369 (a). Despite what would appear at
first blush to be broad coverage, § 31-367 clarifies and
constrains the act’s scope by specifying in relevant part:
‘‘ ‘Employer’ means the state and any political subdivision thereof’’; General Statutes § 31-367 (d); and
‘[e]mployee’ means any person engaged in service to
an employer in a business of his employer . . . .’’ General Statutes § 31-367 (e). Because the definition of
employee requires that there be a statutory employer,
the threshold inquiry regarding the coverage of § 31369 (a) must be whether the fire company can be characterized properly as an employer in § 31-367 (d) by virtue
of falling within the bounds of ‘‘the state and any political subdivision thereof . . . .’’
The act does not define the term political subdivision.
‘‘Such silence does not, however, necessarily equate to
ambiguity . . . .’’ Manifold v. Ragaglia, 272 Conn. 410,
419, 862 A.2d 292 (2004). Rather, ‘‘[t]he test to determine
ambiguity is whether the statute, when read in context,
is susceptible to more than one reasonable interpretation.’’ (Internal quotation marks omitted.) State v. Orr,
291 Conn. 642, 654, 969 A.2d 750 (2009).
Examination of other labor provisions included in
title 31 of the General Statutes also does not yield any
definition of political subdivision. In the absence of a
statutory definition, we turn to General Statutes § 1-1
(a), which provides: ‘‘In the construction of the statutes,
words and phrases shall be construed according to the
commonly approved usage of the language; and technical words and phrases, and such as have acquired a
peculiar and appropriate meaning in the law, shall be
construed and understood accordingly.’’ ‘‘To ascertain
the commonly approved usage of a word, we look to the
dictionary definition of the term.’’ (Internal quotation
marks omitted.) Stone-Krete Construction, Inc. v. Eder,
280 Conn. 672, 678, 911 A.2d 300 (2006). Black’s Law
Dictionary, quoting directly from an opinion of this
court that predates the act’s passage, State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263, 231 A.2d 539 (1967),
has defined political subdivision as ‘‘[a] division of the
state made by proper authorities thereof, acting within
their constitutional powers, for purpose of carrying out
a portion of those functions of state which by long
usage and inherent necessities of government have
always been regarded as public.’’ 4 Black’s Law Dictionary (5th Ed. 1979).
The legislature’s use of this term throughout the General Statutes accords with this dictionary definition and
more specifically enumerates the entities covered by it.
Pursuant to General Statutes § 28-1 (12), which governs
civil emergency preparedness and emergency services,
for example, ‘‘ ‘[p]olitical subdivision’ means any city,
town, municipality, borough or other unit of local government.’’ See also General Statutes § 7-195 (a) (‘‘[a]s
used in this section and sections 7-196 to 7-201, inclusive, ‘unit of local government’ means a town or political
subdivision thereof and ‘political subdivision’ means a
city, borough or district within a town’’); General Statutes § 7-479a (a) (‘‘‘[l]ocal public agency’ means any
political subdivision of the state, including any city,
town or borough or any district as defined in § 7-324
or any metropolitan district or any municipal district
created under § 7-330’’). These and other provisions
establish a core set of entities—cities, towns, and other
units of local government—that plainly fall within the
meaning of political subdivision. As this court noted in
our leading case interpreting the term political subdivision, decided before the enactment of the act:5 ‘‘The
word ‘state’ means ‘a body of people occupying a definite territory and politically organized under one government.’ . . . On this theory, the subdivision of a
state would be a body of people less in number than
the total number in the state, politically organized, and
occupying a part of the territorial area of the state—
hence a city, borough or town.’’ (Citations omitted.)
State ex rel. Maisano v. Mitchell, supra, 155 Conn. 263.
This general definition finds further support in article
tenth, § 1, of the Connecticut constitution, which provides: ‘‘The general assembly shall by general law delegate such legislative authority as from time to time it
deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions.’’
The fire company plainly does not fall within this
core definition. Indeed, the law governing nonstock
corporations provides that such corporations ‘‘shall not
include towns, cities, boroughs or any municipal corporation or department thereof.’’ General Statutes § 33-
1002 (8). As a nonstock corporation, the fire company
is not a municipality, municipal department or other
unit of local government. It is a distinct corporate entity.
We are mindful that the legislature has not always
limited the meaning of the term political subdivision to
units of local government. When the legislature has
intended to expand the meaning of political subdivision
beyond its traditional scope, however, it not only has
done so expressly, but also has tailored its definition
to reflect the particular purpose of the statutory scheme
at issue. For purposes of Connecticut’s SustiNet health
care plan, for example, General Statutes § 19a-710 (9)
defines ‘‘[n]onstate public employer’’ as ‘‘a municipality
or other political subdivision of the state, including
a board of education, quasi-public agency or public
library.’’ General Statutes § 7-462 (b), concerning the
reinstatement of municipal employees after military
leave, defines political subdivision for purposes of that
section as ‘‘any town, city, borough, district, school
board, board of education, public social service or public welfare agency, public corporation, housing authority, redevelopment or urban renewal board or
commission, or other public authority or public agency
established by law.’’ Speaking most directly to the issue
of nonprofit fire companies, General Statutes § 7-467,
concerning collective bargaining rights, specifies that
‘‘ ‘[m]unicipal employer’ means any political subdivision of the state, including any town, city, borough,
district, district department of health, school board,
housing authority or other authority established by law,
a private nonprofit corporation which has a valid contract with any town, city, borough or district to extinguish fires and to protect its inhabitants from loss
by fire, and any person or persons designated by the
municipal employer to act in its interest in dealing with
municipal employees . . . .’’ (Emphasis added).
These provisions indicate that the term political subdivision can encompass entities beyond units of local
government, but only under the limited terms and circumstances provided by specific statutes. By their own
terms, the broader definitions apply only to specific
provisions, and the definitions cumulatively do not
cohere into an expansive general definition of political
subdivision. While § 7-467 demonstrates that the legislature can include nonprofit fire companies in the definition of political subdivision, the legislature’s decision
expressly to incorporate nonprofit fire companies into
this single provision offers persuasive evidence that the
term does not ordinarily sweep so broadly. The absence
of a statutory definition in the act at issue in the present
case, tailored specifically to the purposes of the act,
reflects the legislature’s intent that the traditional meaning of political subdivision should apply to § 31-367 (d).
Cf. Doucette v. Pomes, 247 Conn. 442, 463–64, 724 A.2d
481 (1999) (declining to construe ‘‘insurer’’ under Connecticut Insurance Guaranty Act [act] to include self-
insurers in light of legislature’s inclusion of self-insurer
in definitions of insurers in other provisions of General
Statutes and its omission of that term in act).
In construing § 31-367 (d), we also bear in mind that
the act operates in conjunction with related regulatory
regimes. In § 31-369 (b), the act dictates that ‘‘[n]othing
in this chapter shall be construed to supersede or in any
manner affect any workers’ compensation law . . . .’’
Although, as we previously noted, the fire company’s
members are eligible to receive workers’ compensation
benefits from the town if they are injured while performing fire duties, applying the traditional meaning of
political subdivision to the fire company does not affect
the availability of benefits for individual firefighters.
Indeed, the manner in which the legislature extended
such benefits provides further evidence that this traditional meaning properly applies to § 31-367 (d). The fire
company’s members are not deemed employees under
the Workers’ Compensation Act, General Statutes § 31275 et seq., itself; rather, the legislature adopted separate provisions in another chapter of the General Statutes governing municipal police and fire protection to
extend such benefits to fire company members. The
legislature provided in General Statutes § 7-314a (a)
that ‘‘active members of volunteer fire departments
. . . shall be construed to be employees of the municipality for the benefit of which volunteer fire services
. . . are rendered while in training or engaged in volunteer fire duty . . . and shall be compensated in accordance with the provisions of chapter 568 [Workers’
Compensation Act] for death, disability or injury
incurred while in training for or engaged in volunteer
fire duty . . . .’’ (Emphasis added).
While the classification of volunteer firefighters as
municipal employees for purposes of workers’ compensation provides evidence of the legislature’s desire to
protect volunteer firefighters, it offers no basis for characterizing the fire company as a political subdivision.6
Indeed, the explicit inclusion of volunteer firefighters
in municipal workers’ compensation plans in § 7-314a
(a) reconfirms the legislature’s ability, where it so
chooses, to account for the unusual status of volunteer
firefighters through the judicious construction of legal
fictions. See Going v. Cromwell Fire District, Fire
Dept., 159 Conn. 53, 60, 267 A.2d 428 (1970) (‘‘[a]n historical review of the legislation pertaining to volunteer
firemen suggests the conclusion that the General
Assembly created a fictitious relationship of employeremployee between volunteer firemen and the municipality only to ensure the payment of benefits to volunteer firemen similar to those provided for regular
firemen’’); id., 60–61 (refusing to construe volunteer
firefighter as municipal employee for purposes of General Statutes § 31-310). The legislature has not called
for any such differential treatment of volunteer firefighters in § 31-367 (d). Harmonizing the workers’ com-
pensation and occupational safety statutes thus does
not compel, or even justify, importing the former’s
exceptional, fictitious treatment of volunteer firefighters into the latter’s general definition of political subdivision.
The act also operates alongside the federal Occupational Safety and Health Act, codified at 29 U.S.C. § 651
et seq. (2006).7 General Statutes § 31-372 (a) provides
in relevant part that ‘‘[t]he [labor] commissioner shall
provide for the adoption of all occupational health and
safety standards, amendments or changes adopted or
recognized by the United States Secretary of Labor
under the authority of the [federal] Occupational Safety
and Health Act of 1970. . . .’’ Through this provision,
the state adopts the federal regulatory regime in its
entirety, creating an unusually close correlation
between the state and federal statutes. While we are
not bound to apply federal interpretations of parallel
provisions of federal law to § 31-367 (d), in the interest
of coordination between the comparable federal and
state regulatory regimes, we do not overlook this final
source of legislative context.
Under § 652 (5) of title 29 of the United States Code
(2006), the federal Occupational Safety and Health
Administration has jurisdiction over every ‘‘person [in
the United States] engaged in a business affecting commerce who has employees,’’ with the exception of ‘‘the
United States . . . or any [s]tate or political subdivision of a [s]tate.’’ Where the language of our state act
so closely mirrors that of its federal analogue, ‘‘the
judicial interpretation frequently accorded the federal
[Occupational Safety and Health Act] is of great assistance and persuasive force in the interpretation of our
own [act].’’ West Hartford Education Assn., Inc. v.
DeCourcy, 162 Conn. 566, 579, 295 A.2d 526 (1972). The
federal courts have developed a two-pronged test for
determining whether an entity falls within this federal
exception. Under the test, ‘‘[a]ny entity which has been
(1) created directly by the [s]tate, so as to constitute a
department or administrative arm of the government,
or (2) administered by individuals who are controlled
by public officials and responsible to such officials or
to the general electorate, shall be deemed to be a ‘[s]tate
or political subdivision thereof’ under section 3 (5) of
the [federal Occupational Safety and Health Act],’’ placing it outside of federal jurisdiction. See annot., 153
A.L.R. Fed. 303, 312 (1999), citing 29 C.F.R. § 1975.5 (b).
The federal test is consistent with our General Statutes and our case law indicating that political subdivisions generally are derivative of the constitutional
authority vested in the state itself. See, e.g., State ex
rel. Maisano v. Mitchell, supra, 155 Conn. 263. This
test does not contradict our conclusion that the act’s
definition in § 31-367 (d) limiting employers to ‘‘the state
and political subdivisions thereof’’ plainly and unambig-
uously excludes the fire company. The fire company is
chartered as an independent nonprofit corporation and
was not created by any act of legislation; none of its
members is directly accountable either to the state or
to the electorate; and the fire company’s contract with
the town may be dissolved at any time with proper
notice. While the town does provide significant financial
support for the fire company, that financial relationship
does not make the fire company part of the town, nor
does it authorize the town to govern the fire company’s
membership or operations.
The commissioner urges us to adopt a different test
altogether. Under her theory, a political subdivision
includes any public agencies associated with it. Public
agencies, in turn, may be private entities that are
deemed the functional equivalent of a public agency.
Specifically, the commissioner asks us to apply the
‘‘functional equivalent’’ test that this court has adopted
in the context of the Freedom of Information Act to
determine whether a nominally private entity is a ‘‘public agency’’ for purposes of that act.8 We conclude that
there is no basis for adopting the commissioner’s proposed test.
Pursuant to § 1-2z, which instructs us to read a statute’s language ‘‘in relationship to other statutes,’’ the
applicability of the proposed functional equivalent test
depends, as a threshold matter, on there being a relationship between the Freedom of Information Act and
the act at issue in the present case. See, e.g., Commissioner of Public Safety v. Freedom of Information Commission, 301 Conn. 323, 338–39,
A.3d
(2011).
For the purpose of defining political subdivision, we
find no meaningful relationship between these acts.
The textual distance between the Freedom of Information Act and the act at issue in the present case is
so great as to defy translation. Section 1-200 (1) sets
forth an expansive definition of public agency that
includes not only ‘‘any political subdivision of the state
and any state or town agency, any department, institution, bureau, board, commission, authority or official
of the state or of any city, town, borough, municipal
corporation, school district, regional district or other
district or other political subdivision of the state’’; General Statutes § 1-200 (1) (A); but also ‘‘[a]ny person to
the extent such person is deemed to be the functional
equivalent of a public agency pursuant to law . . . .’’
(Emphasis added.) General Statutes § 1-200 (1) (B). The
act in the present case, by contrast, provides no textual
basis for extending its scope to include the functional
equivalents of covered employers. Indeed, this court
previously has not extended the functional equivalent
test outside of the Freedom of Information Act. But see
Gordon v. H.N.S. Management Co., 272 Conn. 81, 98,
861 A.2d 1160 (2004) (considering functional equivalent
test when crafting different test to determine whether
corporate entity is arm of state entitled to assert sovereign immunity as defense).
Moreover, the text of the act provides no practical
justification for incorporating the functional equivalent
test into the act. The Freedom of Information Act protects citizens of the state from the ill effects of governmental secrecy, and the functional equivalent test in
turn prevents the state from skirting that act’s disclosure requirements by authorizing private agents to operate in its stead. ‘‘[A] policy of liberal access to public
records would necessarily be thwarted if ‘public agencies’ were given a narrow construction . . . .’’9 Board
of Trustees v. Freedom of Information Commission,
181 Conn. 544, 551, 436 A.2d 266 (1980). The act, by
contrast, uses the term political subdivision to draw a
jurisdictional line determining whether a state or a federal agency will enforce a uniform set of rules; no public
policy is thwarted by restricting state jurisdiction to
entities that fall within the technical bounds of ‘‘the
state and any subdivision thereof’’ as required by § 31367 (d). See footnote 7 of this opinion.
Given that we find no meaningful relationship
between the functional equivalent test of the Freedom
of Information Act and the act at issue, under § 1-2z
we have no basis for disturbing the plain meaning of
§ 31-367 (d) by importing what is effectively an extratextual analytic framework. In order to bring the fire company within the scope of the act, the commissioner asks
us to transform § 31-367 (d) not only by expansively
interpreting its definition of political subdivision to
include all public agencies, but also by further
expanding that broad interpretation to encompass private entities that are the functional equivalent of public
agencies. Section § 1-2z does not accommodate such
statutory alchemy.
We address, finally, the commissioner’s suggestion
in her reply brief and at oral argument before this court
that reading § 31-367 (d) as excluding the fire company
from the act produces an absurd result because of the
inherent dangerousness of the work the fire company
performs.10 There is, we recognize, reason for great
concern regarding the health and safety of our volunteer
firefighters, who routinely risk their lives without compensation for the public good. The legislature accordingly has taken steps to protect volunteer firefighters
by indemnifying them against work-related lawsuits and
by providing workers’ compensation coverage. General
Statutes §§ 7-308 (b) and 7-314a (a). We also recognize
that these statutory protections amplify the question of
why volunteer firefighters should not be covered by
a regulatory regime intended to prevent—rather than
merely mitigate the financial effects of—harmful accidents. This policy concern, however, does not rise to
the level of absurdity. Approximately one half of our
sister states have chosen not to extend their version
of the Occupational Safety and Health Act to public
employers generally. See United States Dept. of Labor,
Occupational Safety and Health Administration, Directory of States with Approved Occupational Safety and
Health Plans, available at http://www.osha.gov/dcsp/
osp/states.html (last visited July 19, 2011).11 This fact
strongly suggests that it is neither absurd nor unworkable to forgo regulation of entities not covered by the
federal Occupational Safety and Health Administration.12 Moreover, volunteer fire departments more
closely governed by municipalities; see, e.g., General
Statutes § 7-301;13 may fall within state jurisdiction
under our act, and those independent fire companies
with paid employees are regulated by the federal Occupational Safety and Health Administration.14 In light of
these considerations, as well as the cost of regulatory
enforcement, we cannot conclude that the plain and
unambiguous parameters of jurisdiction of § 31-367 (d)
produce a result that is absurd or unworkable.
We are mindful that, because of its all-volunteer status and the circumstances of its creation, the fire company may be in a unique class that falls outside of the
jurisdiction of both the state and the federal Occupational Safety and Health Act. Though such an outcome
may well be attributable to an inadvertent omission in
the statutory scheme, we cannot substitute our speculative judgment for the plain and unambiguous meaning
of the text. ‘‘Courts may not by construction supply
omissions . . . or add exceptions merely because it
appears that good reasons exist for adding them. . . .
It is axiomatic that the court itself cannot rewrite a
statute to accomplish a particular result. That is a function of the legislature.’’15 (Internal quotation marks omitted.) Greco v. United Technologies. Corp., 277 Conn.
337, 350, 890 A.2d 1269 (2006).
The judgment is affirmed.
In this opinion the other justices concurred.
1
As we explain later in this opinion, Connecticut’s act works in concert
with the federal Occupational Safety and Health Act, 29 U.S.C. § 651 et
seq. (2006).
2
The commissioner appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice
Book § 65-1 and General Statutes § 51-199 (c).
3
Neighboring fire companies act as first responders in areas of the town
that are far from the fire company’s firehouse. Mutual aid agreements with
other municipalities also provide supplemental fire coverage for the town.
4
The most recent edition of that dictionary defines the term more tersely
as ‘‘[a] division of a state that exists primarily to discharge some function
of local government.’’ Black’s Law Dictionary (9th Ed. 2009).
5
See also, e.g., Dugas v. Beauregard, 155 Conn. 573, 578, 236 A.2d 87
(1967) (‘‘[t]he attributes which are generally regarded as distinctive of a
political subdivision are that it exists for the purpose of discharging some
function of local government, that it has a prescribed area, and that it
possesses authority for subordinate self-government through officers
selected by it’’); Norwalk v. Daniele, 143 Conn. 85, 86–88, 119 A.2d 732
(1955) (political subdivision includes cities and towns in addition to state
officers and departments).
6
The commissioner did not attempt to serve a warrant on the town itself,
the town has never been a party in this litigation, and the commissioner
has not pursued a theory based on direct municipal employment between
the town and the fire company’s members or based on the town’s ownership
of land, buildings or equipment. We recognize that volunteer firefighters
may have relationships with a municipality independent of the relationship
between their fire company and the political subdivision that the fire company serves. See General Statutes § 7-148 (c) (5) (A) (conferring authority
on municipalities to establish pension system for municipal employees and
volunteer firefighters); General Statutes § 7-308 (b) (providing municipal
indemnification of volunteer firefighters in work-related lawsuits); see also
General Statutes § 1-110 (2) (defining ‘‘[s]tate or municipal employee’’ to
include ‘‘any person, whether appointed or under contract, who provides
services for a city, town or other political subdivision of the state for which
a pension is provided’’). We, therefore, do not express any opinion as to
whether volunteer firefighters can be considered employees of political
subdivisions for purposes of § 31-367 or other statutory provisions.
7
‘‘The [state act] became effective May 30, 1973. Public Acts 1973, No.
73-379. Section 6 (a) of that act . . . provided for the adoption of federal
standards recognized by the United States Secretary of Labor under the
authority of the [federal] Occupational Safety and Health Act] . . . . The
federal standards . . . preempted state standards until January, 1975, when
by agreement between the state and federal regulatory authorities, the federal government withdrew its regulations from Connecticut, leaving the
state agency with the sole enforcement power under the state [act]. Subsequently, the state [act] was limited so that it applied only to state and local
governments. Public Acts 1977, No. 77-610, § 1, effective July 1, 1978, now set
out as General Statutes § 31-367 (d).’’ Wendland v. Ridgefield Construction
Services, Inc., 184 Conn. 173, 175–76 n.1, 439 A.2d 954 (1981). As a result,
the legislature eliminated state jurisdiction over occupational safety and
health in the private sector, returning the protection of Connecticut’s private
sector employees to the federal government’s jurisdiction. Id.
8
See Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 760, 591 A.2d 395 (1991) (‘‘[i]n determining whether
an entity is the functional equivalent of a public agency, we consider the
following criteria: [1] whether the entity performs a governmental function;
[2] the level of government funding; [3] the extent of government involvement
or regulation; and [4] whether the entity was created by the government’’
[internal quotation marks omitted]); Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553–54, 436 A.2d 266 (1980) (court’s
first adoption of this test).
9
A similar public policy concern animates analysis of the state actor
doctrine for purposes of state liability under § 1983 of title 42 of the United
States Code and similar statutes. Even given the policy impetus toward
liberal construction, the United States Court of Appeals for the Second
Circuit and the United States District Court for the District of Connecticut
have developed a conflicted and fact-specific jurisprudence to address the
status of volunteer fire companies as state actors. See Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17, 18 (2d Cir. 1979) (expulsion of
fire company member considered state action when fire company membership was governed by town selectmen and fire company was heavily financed
by town); McNally v. Stewart, 618 F. Sup. 2d 168, 177–78 (D. Conn. 2009)
(no state action when independently incorporated volunteer fire company
partially financed by town expelled company member).
10
The commissioner also raises a concern that reading political subdivision as excluding the fire company might in turn exclude all town departments and agencies from coverage under the act. We first note that it is
difficult to conceive of a situation in which a paid employee of a town
department or agency is not an employee of the town itself. Moreover, we
do not hold in the present case that the term political subdivision excludes
such subordinate municipal entities.
11
The Internet sources to which we cite in this opinion were accessed
and verified immediately before the date of publication of this opinion for
the purpose of ensuring accuracy. All such sources are on file with this court.
12
We also note that occupational safety and health rules are not the sole
source of regulations governing fire companies. For example, environmental
protection rules regarding hazardous materials may apply to volunteer workers not covered by the federal Occupational Safety and Health Act. See 29
C.F.R § 1910.120 (q); 40 C.F.R. §§ 311.1 and 311.2.
13
General Statutes § 7-301 provides: ‘‘Any town may provide by ordinance
for the protection of property within its limits from fire and for the establishment of a town fire department and for the management, discipline and
control thereof by the board of selectmen or, if there is a town council, by
the town council, or by a board of fire commissioners of such number,
chosen in such manner and for such terms as the ordinance provides. The
board of selectmen, town council or board of fire commissioners may make
regulations for the conduct of the fire department and may appoint, discipline
and remove for cause shown all employees of the department and purchase
supplies and equipment necessary for its operation; provided, if the ordinance so provides, the board of selectmen, town council or board of fire
commissioners shall enter into an agreement with any volunteer fire company or companies within the town for the protection thereof from fire
on such conditions as to financial assistance and the observance of the
regulations of the board of selectmen, town council or board of fire commissioners as such ordinance prescribes; and provided no town fire department
established under the provisions of this section shall supersede any volunteer
fire company which is the owner of any building, fire apparatus or other
property without having first come to an agreement with such company with
regard to the disposition of and compensation for such building, apparatus or
other property. Such town may, at any meeting specially warned for the
purpose, make appropriations and lay taxes for the support thereof; but
this section shall not be operative within the limits of any city, borough or
incorporated fire district which has an established fire department. Nothing
in this section shall prevent any town, city, borough or incorporated fire
district from appropriating funds to a volunteer fire company or companies
for services rendered or to be rendered within the confines of such town,
city, borough or district by such fire company or companies, provided such
town, city, borough or incorporated fire district shall deem it in the public
interest to do so.’’
14
A policy letter promulgated by the federal Occupational Safety and
Health Administration clarifying an agency instruction as it pertained to
emergency response training for firefighters indicates that ‘‘[the federal
Occupational Safety and Health Act] does not generally cover volunteer
firefighters. While [that federal act] would cover volunteer companies established as private sector entities, with one or more paid employees, it does
not cover state and local government employees.’’ United States Dept. of
Labor, Occupational Safety and Health Administration, Standard Interpretations (November 7, 2008) (letter from Richard E. Fairfax, Director, Directorate of Enforcement Programs, to Philip C. Stittleburg, Chairman, National
Volunteer Fire Council, available at http://www.osha.gov/pls/oshaweb/owadisp.show document?p table=INTERPRETATIONS&p id=27409.
15
The commissioner asks us to afford weight to a New York appellate
case holding that New York’s equivalent of our act covers volunteer firefighters. While we may sympathize with the policy concerns animating that
opinion; see Hartnett v. Ballston Spa, 152 App. Div. 2d 83, 547 N.Y.S.2d 902
(1989), appeal dismissed 75 N.Y.2d 863, 552 N.E.2d 167, 552 N.Y.S.2d 919,
appeal denied, 75 N.Y.2d 711, 556 N.E.2d 1116, 557 N.Y.S.2d 309 (1990); the
text of § 31-367 (d) simply does not bear the interpretation set forth therein.
Moreover, because the text does not provide an anchor for specifically
addressing the limited subset of fire companies presently outside the reach
of occupational safety and health regulations, any policy based rule we
might devise to cover the fire company here would risk being overinclusive or
underinclusive, disrupting the regulatory scheme created by the legislature.
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