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  GOULD v. FREEDOM OF INFORMATION COMMISSION—SECOND
                         DISSENT

   ESPINOSA, J., with whom McDONALD, J., joins, and
DiPENTIMA, J., joins in part, dissenting. The present
appeal requires this court to resolve an issue that we
left open in Glastonbury Education Assn. v. Freedom
of Information Commission, 234 Conn. 704, 663 A.2d
349 (1995), namely, whether the evidentiary portions
of last best offer arbitration hearings under the Teacher
Negotiation Act (TNA); General Statutes § 10-153a et
seq.; constitute meetings by a public agency that are
subject to the requirements of the Freedom of Informa-
tion Act (FOIA), General Statutes (Supp. 2014) § 1-200
et seq. I disagree with the majority’s conclusion that
the TNA arbitration panel in the present case does not
constitute a public agency, or the functional equivalent
of one, for purposes of the FOIA. Moreover, because I
conclude that such arbitration panels are public agen-
cies, and, even if they are not public agencies, they are
certainly their functional equivalent, I reach the second
issue presented in this appeal, and conclude that the
evidentiary portions of last best offer arbitration hear-
ings before such panels constitute meetings for pur-
poses of the FOIA. I would therefore affirm the
judgment of the trial court dismissing the appeal of the
plaintiff, Martin A. Gould, from the final decision of the
named defendant, the Freedom of Information Commis-
sion (commission). Accordingly, I respectfully dissent.
                             I
 THE ARBITRATION PANEL IS A PUBLIC AGENCY
   I agree with the majority that the proper inquiry in
resolving the question of whether a TNA arbitration
panel is a public agency begins with our decision in
Elections Review Committee of the Eighth Utilities
District v. Freedom of Information Commission, 219
Conn. 685, 687, 595 A.2d 313 (1991), in which we inter-
preted the definition of ‘‘ ‘[p]ublic agency’ ’’ in General
Statutes § 1-18a (a), now General Statutes (Supp. 2014)
§ 1-200 (1) (A),1 to include subunits of a public agency.2
For two reasons, however, I disagree with the majority
that TNA arbitration panels are not public agencies
for purposes of the FOIA. First, the plain language of
General Statutes § 10-153f provides that TNA arbitra-
tion panels are indeed subunits of the Department of
Education (department). Second, even assuming that
the statutory language is ambiguous, the legislative his-
tory of § 10-153f, as well as the public policy principles
underlying both the FOIA and the TNA, clarify that the
legislature intended that the arbitration panel created
by § 10-153f, as well as the resulting individual TNA
arbitration panels, be subunits of the department.3 I will
discuss each of these two bases for my disagreement
with the majority in turn.
  Preliminarily, I observe that the status of the individ-
ual, three member TNA arbitration panels is inextrica-
bly intertwined with that of the arbitration panel created
by § 10-153f (a), which has the sole function of serving
as a ‘‘pool’’ from which the individual panels are cre-
ated. Without the pool, there would be no individual
panels, and without the individual panels, the pool
would serve no active function. In order, therefore, to
resolve the question of whether the individual panels
are public agencies, one must examine both the pool
and the individual panels as they function together. In
this dissent, I will refer to the larger arbitration panel
as the arbitration panel pool, and to the smaller panels
as TNA arbitration panels.
                            A
   ‘‘Because the question is one of statutory construc-
tion, we afford plenary review, guided by well estab-
lished principles regarding legislative intent.’’ Ethics
Commission v. Freedom of Information Commission,
302 Conn. 1, 8, 23 A.3d 1211 (2011). It is well established
that we interpret FOIA provisions in light of ‘‘[t]he over-
arching legislative policy of the FOIA . . . [which]
favors the open conduct of government and free public
access to government records.’’ (Internal quotation
marks omitted.) Glastonbury Education Assn. v. Free-
dom of Information Commission, supra, 234 Conn.
712. Keeping that principle in favor of openness in mind,
I turn to the statutory text. The plain language of the
TNA provides that the arbitration panel pool is in the
department. Specifically, § 10-153f (a) provides in rele-
vant part: ‘‘There shall be in the Department of Educa-
tion an arbitration panel of not less than twenty-four
or more than twenty-nine persons to serve as provided
in subsection (c) of this section. . . .’’ (Emphasis
added.) There is only one reasonable interpretation of
the phrase ‘‘in the [d]epartment’’—the arbitration panel
pool is part of the department. The phrase ‘‘in the
[d]epartment’’ is not qualified in any manner that sug-
gests that the legislature intended to limit its meaning,
and the overall statutory scheme supports the conclu-
sion that both the arbitration panel pool and the TNA
arbitration panels formed from it are part of the depart-
ment, subject to the oversight of the Commissioner of
Education (commissioner).
    The key word in the statutory phrase is, of course,
the unrestricted word ‘‘in,’’ which is a preposition. It is
a basic rule of grammar that the function of a preposi-
tion is to express the relation between the object of
the preposition and the word or phrase that is being
modified by the preposition. In this case, the preposition
‘‘in’’ connects ‘‘an arbitration panel’’ (the arbitration
panel pool) and ‘‘the [d]epartment.’’ Obviously, the
word ‘‘in’’ has many different meanings, and the particu-
lar meaning depends on the nature of the two things
being connected by ‘‘in.’’4 Because the department and
the arbitration panel pool are organizational entities,
the most logical understanding of the relationship
between them is that the word ‘‘in’’ clarifies the organi-
zational relationship between the two of them. That is,
the arbitration panel pool is ‘‘in’’ the department in the
sense that the department is a ‘‘whole,’’ which includes
within it a ‘‘part,’’ the arbitration panel pool. See Mer-
riam-Webster’s Collegiate Dictionary (11th Ed. 2003)
(including within definition of word ‘‘in’’: ‘‘used as a
function word to indicate inclusion’’). Nothing in § 10-
153f (a) or in the remainder of the TNA controverts the
plain meaning of the statement: ‘‘There shall be in the
Department of Education an arbitration panel . . . .’’
(Emphasis added.) In fact, as I explain, viewing the
statutory scheme as a whole confirms the common-
sense reading of that statement.
   In support of its position that the arbitration panel
pool is not in the department, the majority focuses on
only some of the statutory provisions that comprise the
TNA, and fails to account for the provisions that do not
support its position. Specifically, the majority places
heavy reliance on the fact that § 10-153f (a) gives the
governor the authority to appoint the panel members
with the advice and consent of the General Assembly,
and to select the names of those appointed to the arbi-
tration panel pool from lists of names submitted by
three different groups, depending on which of three
categories the panel member falls under, namely: (1)
those that are representative of the interests of local
and regional boards of education; (2) those that are
representative of the interests of bargaining representa-
tives of certified employees; and (3) those that are
impartial representatives of the interests of the public
in general. General Statutes § 10-153f (a). The mere fact
that the governor appoints panel members, however,
does not have any bearing on the meaning of the state-
ment that the arbitration panel pool is ‘‘in’’ the depart-
ment. It is in fact common for the governor to appoint
persons to positions on boards and commissions within
executive agencies. See, e.g., General Statutes § 4-6
(governor has authority to appoint department heads,
including Commissioner of Education); General Stat-
utes § 20-139a (governor has authority to appoint mem-
bers of Connecticut Board of Examiners for Opticians,
which is in Department of Public Health); General Stat-
utes § 31-102 (governor has authority to appoint mem-
bers of Connecticut State Board of Labor Relations,
which is in Labor Department).
  The majority also argues that the statute’s failure to
require the department to compensate the panel mem-
bers injects a degree of ambiguity into the meaning of
the statement that the arbitration panel pool is ‘‘in’’
the department. Specifically, § 10-153f (a) provides that
panel members ‘‘shall serve without compensation but
each shall receive a per diem fee for any day during
which such person is engaged in the arbitration of a
dispute pursuant to this section.’’ The majority has cited
to no authority, however, for the proposition that only
persons who are compensated by a department or
agency can be members of that body.
   Furthermore, the majority’s assertion that the signifi-
cant degree of autonomy granted to the TNA arbitration
panels supports a conclusion that ‘‘aside from having
their name on the list, the arbitrators have no associa-
tion whatsoever with the department’’; (emphasis
added); is blatantly wrong and contradicted by the
majority’s own interpretation of the statutory language
to mean that the arbitration panel pool is in the depart-
ment for administrative purposes. The majority’s state-
ment also ignores the complexity of the statutory
scheme, which crafts a carefully balanced relationship
between the TNA arbitration panels and the depart-
ment. That is, the TNA simultaneously gives the panels
a great degree of autonomy, yet subjects the entire
arbitration process to the oversight of the commis-
sioner, who bears the responsibility to ensure that the
desired end result—an agreement between the par-
ties—is achieved. My review of the statutory scheme
reveals that, far from having no association with the
department, the TNA arbitration panels are integrally
connected to it. The statutory scheme as a whole con-
firms what the plain language of § 10-153f provides—
the arbitration panel pool and the individual TNA arbi-
tration panels are part of the department.
   The commissioner’s oversight authority begins imme-
diately with the selection process for the TNA arbitra-
tion panels, a process characterized by regular guidance
from the commissioner, who functions as a safeguard
to prevent the process from failing. For example, the
parties are required to notify the commissioner of their
progress at every step of the selection process. Section
10-153f (c) (1) provides that if the parties determine to
proceed with a three member TNA arbitration panel,
‘‘the commissioner shall order the parties . . . to
notify the commissioner of . . . the name of the arbi-
trator selected by each of them. . . .’’ That is, the board
selects an arbitrator who represents the interests of
local and regional boards of education, and the
employee bargaining unit selects an arbitrator who rep-
resents its interests, then each party notifies the com-
missioner of its selection. General Statutes § 10-153f
(a) and (c) (1). With respect to the third, neutral arbitra-
tor, the statute provides that ‘‘the parties shall notify
the commissioner of the name of the arbitrator if there
is . . . agreement on the third arbitrator appointed to
the panel pursuant to [§ 10-153f (a) (3)] . . . .’’ General
Statutes § 10-153f (c) (1). It is highly significant that
§ 10-153f (c) (1) gives the commissioner the authority
to select some or all of the panel members if the parties
fail to notify the commissioner of their selections as
required, and authorizes the commissioner to select the
impartial arbitrator if the parties cannot agree. General
Statutes § 10-153f (c) (1). These provisions establish
that ultimately it is the commissioner who bears respon-
sibility to oversee the process.
   Once created, the TNA arbitration panels have a sig-
nificant degree of autonomy, but the commissioner’s
oversight authority continues after the selection stage
is completed. For example, the commissioner has the
power to ‘‘order the parties to appear before said com-
missioner during the arbitration period. . . .’’ General
Statutes § 10-153f (c) (1). Although this statement
appears in the section addressing the selection of arbi-
trators, the statute does not limit in any manner the
commissioner’s broad authority to order the parties to
appear before him or her. As long as the arbitration
period continues, there is no time limit on the commis-
sioner’s authority to summon the parties, no limitation
as to basis, no limitation as to the number of times that
the commissioner may invoke this authority, no power
on behalf of the arbitrators to circumvent the commis-
sioner’s authority, and no requirement that the commis-
sioner consult the arbitrators before summoning the
parties.
   The responsibility that the commissioner has to over-
see the process is confirmed by § 10-153f (c) (5), which
imposes a duty upon the commissioner to ‘‘assist the
arbitration panel . . . as may be required in the course
of arbitration . . . .’’ It is difficult to reconcile the com-
missioner’s statutory duty with the majority’s assertion
that there is no association between the commissioner
and the TNA arbitration panels. The majority simultane-
ously suggests that the commissioner’s duty to assist
is limited to the selection stage and arises only upon a
request by the panelists for assistance. I first observe
that these two limitations are internally inconsistent. If
the commissioner’s duty to assist were limited to the
selection stage, there would be no panel to request
assistance. More importantly, the statutory language
contains no such limitation, and the majority offers no
basis for its assertion. There is no qualification whatso-
ever in the statutory language that the commissioner’s
duty to assist is limited to the selection period or only
triggered upon a request by the panel. The commission-
er’s duty to assist extends throughout the entire arbitra-
tion period, and arises ‘‘as may be required . . . .’’
General Statutes § 10-153f (c) (5). This provision could
not make it more clear—the commissioner is responsi-
ble for ensuring that the TNA arbitration panel succeeds
by resolving the dispute between the parties.
  Upon rendering a decision, the arbitrators are
required to file a copy of that decision with the commis-
sioner. General Statutes § 10-153f (c) (4). The majority
misses the point of this requirement. The commissioner
does not have the authority or responsibility to ensure
the particulars of the agreement between the parties,
only that there is an agreement, and, thus, the commis-
sioner is not authorized to reject or modify the ruling
of the panel. The commissioner’s responsibility is sim-
ply to ensure that the dispute is resolved. The require-
ment that the decision be filed with the commissioner
provides an update on the progress of the arbitration.
And there is good reason for the requirement that the
panel keep the commissioner apprised of the progress
of the arbitration. The commissioner’s responsibility to
oversee the process continues even after the arbitrators
have rendered their decision. If the legislative body of
the school district rejects the arbitration award pursu-
ant to § 10-153f (c) (7), the commissioner must be noti-
fied. The commissioner then must select a review panel
of three arbitrators or, if the parties agree, an individual
arbitrator, who shall then review the arbitration deci-
sion on each rejected issue. General Statutes § 10-153f
(c) (7). Thus, even after the TNA arbitration panel is
finished, the commissioner’s work continues, if neces-
sary, until the dispute ultimately is resolved.5
                             B
   Although I conclude that the issue is resolved under
the plain language of § 10-153f, I observe that, even if
I were to agree with the majority that the language is
not plain and unambiguous, the extratextual sources
relied on by the majority actually support my conclusion
that the TNA arbitration panels are subunits of the
department. The majority states that there are two rea-
sonable interpretations of the phrase ‘‘in the Depart-
ment’’: Either the phrase means that the arbitration
panel pool is, indeed, ‘‘in’’ the department, or that it is
‘‘in’’ the department for administrative purposes only.
After concluding that the plain language does not
resolve which of the two meanings was intended by the
legislature, the majority turns to the legislative history.
   The phrase ‘‘in the Department of Education’’ was
first added to § 10-153f (a) through No. 77-614, § 304,
of the 1977 Public Acts (P.A. 77-614), ‘‘An Act concern-
ing the Reorganization of the Executive Branch of State
Government.’’ The substantial legislative history of this
omnibus act does not reference or explain the meaning
of the phrase, ‘‘in the Department of Education.’’ The
overall purpose of P.A. 77-614, to reorganize the execu-
tive branch, is consistent with either interpretation of
the phrase ‘‘in the Department of Education’’—that it
designates the arbitration panel pool as a subunit of
the department or that it simply locates the panel in
the department for administrative purposes. Con-
trasting the language of § 304, however, with other pro-
visions within P.A. 77-614, reveals that the legislature
intended, in § 304 of P.A. 77-614, to establish that the
arbitration panel pool is a subunit of the department.
Specifically, when the legislature intended to locate
a body in a department or agency for administrative
purposes only, it expressly provided so. See, e.g., P.A.
77-614, § 81 (locating Commission on Capitol Preserva-
tion and Restoration in Department of Administrative
Services ‘‘for administrative purposes only’’); P.A. 77-
614, § 137 (locating Commission on Human Rights and
Opportunities in Department of Administrative Services
‘‘for administrative purposes only’’); P.A. 77-614, § 305
(locating Connecticut Historical Commission in Depart-
ment of Education ‘‘for administrative purposes only’’);
P.A. 77-614, § 307 (locating State Commission on the
Arts in Department of Education ‘‘for administrative
purposes only’’). The inclusion of the phrase ‘‘for admin-
istrative purposes only’’ in those and other sections of
P.A. 77-614, contrasted with the omission of any such
limiting language in § 304, which provided merely that
the arbitration panel shall be ‘‘in’’ the department, sup-
ports my conclusion that the legislature intended that
the panel actually be a subunit of the department, rather
than merely administered by the department.
   That conclusion finds further support in the ‘‘over-
arching legislative policy’’ underlying the FOIA, which
‘‘favors the open conduct of government and free public
access to government records. . . . The sponsors of
the FOIA understood the legislation to express the peo-
ple’s sovereignty over the agencies which serve them
. . . . Our construction of the [FOIA] must be guided
by the policy favoring disclosure and exceptions to
disclosure must be narrowly construed.’’ (Citations
omitted; internal quotation marks omitted.) Glaston-
bury Education Assn. v. Freedom of Information Com-
mission, supra, 234 Conn. 712. The conclusion that the
TNA arbitration panels are public agencies for purposes
of § 1-200 (1) (A) furthers the strong public policy in
favor of openness that underlies the FOIA.6
   Finally, the conclusion that TNA arbitration panels
are public agencies for purposes of the FOIA is consis-
tent with the overall purpose of the TNA, which is to
serve the state’s best interest ‘‘by according teachers
the right to negotiate in accordance with the terms
and conditions of the [TNA]. It eliminates any need for
resort to illegal and disruptive tactics.’’7 West Hartford
Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 584,
295 A.2d 526 (1972). By assisting local boards of educa-
tion and employee bargaining groups to resolve dis-
putes that arise during the process of collective
bargaining, the work performed by the TNA arbitration
panels is central to the duty imposed on government
by the constitution of Connecticut, article eighth, § 1,
which provides: ‘‘There shall always be free public ele-
mentary and secondary schools in the state. The general
assembly shall implement this principle by appropriate
legislation.’’ Put simply, by assisting in the efficient
resolution of disputes that arise during the collective
bargaining process, the TNA arbitration panels ensure
that Connecticut is able to provide a free, uninterrupted
education to the children of this state. Accordingly, the
TNA arbitration panels are public agencies for purposes
of § 1-200 (1) (A).8
                             II
THE EVIDENTIARY PORTION OF THE ARBITRATION
          HEARING IS A MEETING
   I next address the question of whether the evidentiary
portion of the arbitration hearing is a meeting pursuant
to § 1-200 (2),9 and therefore subject to the open meet-
ings provision of General Statutes § 1-225 (a).10 The
plaintiff contends that the evidentiary portion of TNA
arbitration hearings constitutes ‘‘strategy or negotia-
tions with respect to collective bargaining’’; General
Statutes (Supp. 2014) § 1-200 (2); and therefore is
excluded from the definition of ‘‘ ‘[m]eeting’ ’’ in § 1-
200 (2). The commission and the intervening defendants
Waterbury Republican-American and Jim Moore, a jour-
nalist, respond that although the presentation of evi-
dence during a TNA arbitration is in support of and
related to strategy and negotiation with respect to col-
lective bargaining, it is nonetheless distinguishable
from the actual strategy and negotiations. I conclude
that because the evidentiary portion of TNA arbitration
hearings merely relates to, and does not itself consti-
tute, strategy or negotiations with respect to collective
bargaining, that portion of the proceedings is encom-
passed within the meaning of the term ‘‘ ‘[m]eeting’ ’’
in § 1-200 (2), and is subject to the open meetings provi-
sion of the FOIA.
    Because the question of whether the evidentiary por-
tion of TNA arbitration proceedings constitutes a
‘‘ ‘[m]eeting’ ’’ pursuant to § 1-200 (2) presents an issue
of statutory construction, I am guided by the same statu-
tory construction principles that have informed my dis-
cussion of whether TNA arbitration panels are public
agencies pursuant to § 1-200. See part I of this dissenting
opinion. Pursuant to those principles, I begin with the
statutory text. Section 1-200 (2) defines the term
‘‘ ‘[m]eeting’ ’’ to include ‘‘any hearing or other proceed-
ing of a public agency . . . to discuss or act upon a
matter over which the public agency has supervision,
control, jurisdiction or advisory power.’’ The statute
then lists several exemptions from the definition of
‘‘ ‘[m]eeting,’ ’’ including the one that is relevant to the
present case, ‘‘strategy or negotiations with respect to
collective bargaining . . . .’’ General Statutes (Supp.
2014) § 1-200 (2). The question, therefore, is whether
the evidentiary portion of TNA arbitration proceedings
constitutes ‘‘strategy or negotiations with respect to
collective bargaining.’’
    Before I turn to the specific question of how the
evidentiary portion of TNA arbitration proceedings
‘‘fits’’ into the FOIA, it is helpful to understand this
issue in the context of the structure of the TNA. This
court previously has explained: ‘‘Although TNA arbitra-
tions arise out of an initial failure to reach agreement
in ordinary collective bargaining, they were designed
to provide incentives for further bargaining between the
parties. The TNA establishes a sequence of increasingly
formal collective bargaining procedures to ensure the
existence of a teacher contract by the beginning of the
town’s fiscal year. A board of education and representa-
tives of the teachers’ union have a statutory duty to
negotiate concerning salary and other conditions of
employment. General Statutes § 10-153d (b). Those
negotiations must commence no later than 210 days
prior to the budget submission date for the board. Gen-
eral Statutes § 10-153d (b). If a complete negotiated
settlement has not been reached by 160 days prior to the
submission date, the statutes mandate that the parties
proceed to mediation. General Statutes § 10-153f (b).
Finally, if mediation has not settled all remaining dis-
putes by 135 days prior to the submission date, the
statute imposes mandatory last best offer arbitration.
General Statutes § 10-153f (c) (1). After a hearing at
which each party may present all relevant evidence, the
arbitral panel ‘shall resolve separately each individual
disputed issue by accepting the last best offer thereon
of either of the parties . . . .’ General Statutes § 10-153f
(c) (4).’’ (Footnote omitted.) Glastonbury Education
Assn. v. Freedom of Information Commission, supra,
234 Conn. 714–15.
   This structure of the TNA, in which arbitration pro-
ceedings—when it becomes necessary to employ
them—function as an extension of the negotiation and
mediation stages, makes clear that ‘‘a TNA arbitration
does not operate as a typical quasi-judicial process, but
rather as a stylized or ritualized mediated negotiation
process in which the parties submit initial last best
offers, interim last best offers and final last best offers.
Throughout the process, the threat of the [TNA] arbitra-
tion panel’s decision-making power provides a strong
incentive for the parties to resolve outstanding issues.
. . . [T]he arbitrators ‘don’t receive the parties’ abso-
lute final position until the very end of the hearing and
the parties often and usually present a different position
when they open the hearing . . . .’ ’’ (Footnote omit-
ted.) Id., 715–16.
   Despite this court’s recognition of the unique nature
of TNA arbitrations as a continuation of the negotiation
process, we were mindful in Glastonbury Education
Assn. v. Freedom of Information Commission, supra,
234 Conn. 712, that in addressing the issue of whether
the presentation of last best offers constitutes strategy
or negotiations with respect to collective bargaining,
‘‘[o]ur construction of the [FOIA] must be guided by the
policy favoring disclosure and exceptions to disclosure
must be narrowly construed.’’ (Internal quotation marks
omitted.) We explained further that ‘‘the statutory defi-
nition of public meetings contained in [§ 1-200 (2)] must
be read to limit rather than to expand the opportunities
for public agencies to hold closed hearings. Accord-
ingly, the language providing that public meetings ‘shall
not include . . . strategy or negotiations with respect
to collective bargaining’ means . . . that what is
excluded from the term ‘meeting’ is not all collective
bargaining, but only ‘strategy or negotiations’ sessions
that relate to collective bargaining.’’ (Emphasis
altered.) Id., 712–13. In light of that policy, we were
careful to craft our holding narrowly, stating that ‘‘the
actual presentation of last best offers by the parties
sufficiently resembles ‘negotiations,’ despite the fact
that they occur during a proceeding denominated as
‘arbitration,’ to be excluded from the ‘meeting’ require-
ments of the FOIA.’’ Id., 717. Because the commission’s
order in Glastonbury Education Assn. determined that
the entire arbitration hearing, including the presenta-
tion of last best offers, was subject to the open meetings
provision, we held that the order was invalid. We specifi-
cally held out the possibility, however, that a more
narrowly tailored order, limited to the evidentiary por-
tion of the TNA arbitration proceedings, could be valid.
Id., 718.
   This court’s narrow construction of the exemption
for ‘‘strategy or negotiations with respect to collective
bargaining’’ in Glastonbury Education Assn. v. Free-
dom of Information Commission, supra, 234 Conn.
704, is significant because, in order for a proceeding to
fall within the exemption, it is not sufficient that the
proceeding merely be related to or part of the collective
bargaining process. The proceeding, or portion of it,
must actually consist of strategy or negotiations.
   We underscored this requirement, that a proceeding
must itself be comprised of strategy or negotiations
in order to fall under the exemption, when we again
considered the scope of the exemption in Waterbury
Teachers Assn. v. Freedom of Information Commis-
sion, 240 Conn. 835, 694 A.2d 1241 (1997). In that case,
we addressed the issue of whether grievance proceed-
ings were exempt from the open meetings provision of
the FOIA because they constituted strategy or negotia-
tions with respect to collective bargaining. Id., 837. We
began by citing to Glastonbury Education Assn. v.
Freedom of Information Commission, supra, 234
Conn. 711–13, for the proposition that the exemption
does not encompass ‘‘collective bargaining proceedings
in their entirety’’ from the open meetings requirement,
but only ‘‘sessions that relate specifically to ‘strategy
or negotiations.’ ’’ Waterbury Teachers Assn. v. Free-
dom of Information Commission, supra, 839. The mere
fact that the grievance procedures ‘‘[arose] out of, and
relate[d] to, collective bargaining’’ was not sufficient to
establish that the exemption applied. Id., 840. Instead,
in order to determine whether grievance proceedings
constituted strategy or negotiations with respect to col-
lective bargaining, we examined the ‘‘operational char-
acteristics’’ of those proceedings as established by the
testimony and evidence presented to the commission.
Id., 841.
   Our review of that evidence revealed that the griev-
ance process involves two stages: the presentation of
evidence, and the request for a remedy. Id., 841–42. On
the basis of our examination of those two stages, we
held that the commission properly had concluded that,
although the request for a remedy fell under the exemp-
tion, the presentation of evidence did not, because the
latter did not consist of strategy or negotiations. There-
fore, that portion of the grievance hearings was required
by the FOIA to be open to the public. Id., 843. A signifi-
cant difference between the two stages was that the
request for a remedy involved bargaining back and forth
between the parties, and often the grievance could be
resolved at that stage of the proceedings through a
new interpretation of the agreement, which could be
incorporated into the original collective bargaining
agreement by way of memoranda of understanding. Id.,
842. By contrast, in the evidentiary portion of the pro-
ceedings, the parties ‘‘had discussed matters other than
strategy or negotiation with respect to collective bar-
gaining . . . .’’ (Internal quotation marks omitted.) Id.
Specifically, during that portion of the proceedings, the
parties presented evidence regarding the ‘‘underlying
facts allegedly giving rise to the grievance . . . .’’ Id.,
843–44. Although evidence of the underlying facts giving
rise to a grievance certainly is related to the strategies
of the parties, and could both relate to and impact
negotiations, our decision in Waterbury Teachers Assn.
reinforces the rule we had set forth in Glastonbury
Education Assn. v. Freedom of Information Commis-
sion, supra, 234 Conn. 704, regarding strategy or negoti-
ations with respect to collective bargaining. Waterbury
Teachers Assn. v. Freedom of Information Commis-
sion, supra, 240 Conn. 837. We began by citing to Glas-
tonbury Education Assn. v. Freedom of Information
Commission, supra, 704, and noted that the proceeding
must be more than related to strategy and negotiations.
In order to fall under the exemption, a proceeding must
actually consist of strategy and negotiations.
   Consistent with the rationale in Waterbury Teachers
Assn. v. Freedom of Information Commission, supra,
240 Conn. 841, in order to determine whether the evi-
dentiary portion of TNA arbitration proceedings merely
relates to, or actually constitutes strategy or negotia-
tions with respect to collective bargaining, I examine
the operational characteristics of the proceedings.11
Specifically, I examine three characteristics of the arbi-
tration proceedings: (1) the type of evidence presented
during the proceedings; (2) the relationship between
the presentation of evidence and the presentation of
last best offers; and (3) the nature of communications
between the parties, both in and outside the presence
of the TNA arbitration panel as established by § 10-153f
and the testimony before the commission. My review
of the proceedings persuades me that although the pre-
sentation of evidence is related to strategy and negotia-
tions and is an integral part of the collective bargaining
process at the arbitration stage, the evidentiary portion
of TNA arbitration proceedings does not itself consti-
tute either strategy or negotiations.
   The types of evidence presented at a TNA arbitration
are dictated by statute, and are by their very nature
related to issues that are likely to be the subject of
negotiations between the parties as a part of the collec-
tive bargaining process. Section 10-153f (c) (2) provides
in relevant part that during the hearing, ‘‘each party shall
have full opportunity to submit all relevant evidence, to
introduce relevant documents and written material and
to argue on behalf of its positions. At the hearing a
representative of the fiscal authority having budgetary
responsibility or charged with making appropriations
for the school district shall be heard regarding the finan-
cial capability of the school district . . . .’’ The type
of evidence presented is also guided by the statutory
factors that the arbitrators are required to consider. In
addition to presenting evidence regarding the public
interest and the financial capability of the town or towns
in the school district—the two factors to which the
arbitrators are required to give priority—the parties
may present evidence relevant to the following statu-
tory factors considered by the arbitrators: ‘‘(A) [t]he
negotiations between the parties prior to arbitration,
including the offers and the range of discussion of the
issues;12 (B) the interests and welfare of the employee
group; (C) changes in the cost of living averaged over
the preceding three years; (D) the existing conditions
of employment of the employee group and those of
similar groups; and (E) the salaries, fringe benefits, and
other conditions of employment prevailing in the state
labor market, including the terms of recent contract
settlements or awards in collective bargaining for other
municipal employee organizations and developments
in private sector wages and benefits. . . .’’ (Footnote
added.) General Statutes § 10-153f (c) (4).
   I next turn to the relationship between the presenta-
tion of evidence and the presentation of last best offers.
Because the categories of evidence are all relevant to
the issues that are likely to be the subject of collective
bargaining, the content of the evidence will certainly
be related to the last best offers presented by the parties.
There is, however, a more functional connection
between the presentation of evidence and the presenta-
tion of last best offers that is relevant to my analysis.
Specifically, the testimony before the commission in
the present case demonstrated that the parties to a TNA
arbitration proceeding regularly use the presentation
of evidence to influence the last best offers of the oppos-
ing party.
   To understand this functional connection, it is helpful
to view last best offers and the presentation of evidence
in light of the nature of TNA arbitration proceedings.
James Larry Foy, the impartial arbitrator in the present
case, explained during his testimony before the com-
mission that the presentation of evidence during a TNA
arbitration proceeding is greatly affected by the unique
characteristics of TNA arbitration proceedings, which
are a type of interest arbitration, and involve the cre-
ation of a new or amended labor contract rather than
the resolution of an alleged violation of an existing
contract. See generally 48B Am. Jur. 2d 118, Labor and
Labor Relations § 2488 (2005). At the outset of the pro-
ceedings, as to each disputed contract issue, each party
presents an initial last best offer. Often, the parties also
present an interim last best offer.13 At the end of the
proceedings, the parties present final last best offers
as to all remaining unresolved issues, and the TNA
arbitration panel must select the last best offer of one
of the parties as to each issue, with no authority to
alter the terms. The selected last best offer becomes
the contract term as to that issue. The panel’s lack of
discretion to alter the last best offers creates an incen-
tive for the parties to resolve the dispute as to each
issue rather than leaving that issue to be decided by
the panel.
   The effect of this all or nothing approach is that the
parties’ respective positions are brought closer together
by the risk that by failing to compromise, they will lose
entirely on that issue. As a result, the parties present
the evidence with the knowledge that it will provide
the panel with an evidentiary basis upon which to evalu-
ate the final last best offers of each side of the dispute
in accordance with the statutory factors listed in § 10-
153f (c) (4), and that the panel must select only one
side, without the authority to modify the terms. Under
this system, Foy explained, each party is highly moti-
vated to submit the last best offer that will most likely
be selected by the panel, and each uses the presentation
of evidence to persuade the other side that its position
is the stronger one, and that failure to compromise,
in light of the evidence, will result in the arbitrators
selecting the presenting party’s last best offer on that
issue.
   Gail McKinley Anderson, a field representative for
the Connecticut Education Association, who represents
teacher unions and education associations in negotia-
tion, mediation and arbitration proceedings, and who
also testified at the commission hearing, confirmed
Foy’s assessment of the link between the presentation
of evidence and the parties’ last best offers. Anderson
explained that her decision regarding which evidence
to present is part of her strategy, because she selects
the evidence that she believes will most likely convince
a board of education to modify its last best offer. She
indicated that her selection of evidence is based on her
knowledge that the TNA arbitration panel does not have
discretion to modify the last best offer it selects, and
she therefore presents evidence designed to persuade
a board of education that the risk of going forward
without modifying its last best offer is too high.
  Finally, I review the nature of the communications
between the parties during the proceedings, both in
and outside the presence of the panel. When Foy was
questioned, during the hearing before the commission,
as to whether negotiations are continuous during TNA
arbitration proceedings, he responded that they are not.
He conceded that in the presence of the panel, the bulk
of the recorded proceedings generally consist of the
presentation of evidence and argument. There is not
always a bright line, however, between evidence and
argument, and the structure of the proceedings is quite
informal. Witnesses do not necessarily testify from a
stand, and parties may make spontaneous responses to
a witness’ testimony. At times, in fact, the parties engage
with each other in the presence of the panel, represent-
ing their positions to each other in a manner consistent
with the communications one would expect during
negotiations. Foy offered the following as a typical
example of the type of statement one party might make
to the other side on the record, in the presence of the
panel: ‘‘[I]f your position [were] X on issue one rather
than Y, then maybe we [could] work this thing out, but
that’s not your position . . . .’’ He also indicated, how-
ever, that the extent of this type of exchange in front
of the panel tends to be limited in its scope, and that
the bulk of negotiations generally occur outside the
presence of the panel.
   Both Foy and Anderson testified that outside the
presence of the panel, the parties regularly engage in
negotiations with each other and each party meets with
its representative on the TNA arbitration panel to dis-
cuss strategy, receive advice from that representative,
and discuss possible revisions and proposals of that
party’s last best offer. It is not uncommon for the repre-
sentative of a party to attempt, during these ex parte
communications, to persuade that party to make con-
cessions. The third, impartial arbitrator, however, does
not meet with the parties separately, and the meetings
with the representative arbitrators are not recorded.
   In summary, my review of the operational character-
istics of the TNA arbitration proceedings leaves no
doubt that communications that occur during the evi-
dentiary portion of the proceedings are related to the
parties’ strategy with respect to collective bargaining.
The uncontroverted testimony demonstrates that the
selection and presentation of evidence are based on
strategic decisions, and have the strategic purpose of
persuading the other side to compromise. The fact that
the presentation of evidence is part of a party’s overall
strategic plan and is undertaken in a strategic manner,
however, does not make the presentation of the evi-
dence itself strategy. In any judicial or quasi-judicial
proceeding, the presentation of evidence is undertaken
for strategic purposes. That fact alone is not sufficient
to transform the presentation of evidence into strategy.
There was no testimony offered at the commission hear-
ing that any parties discussed strategy on the record,
in the presence of the TNA arbitration panel. As
explained by Foy in his testimony to the commission,
discussions of strategy during the proceedings are con-
fined to discussions outside the presence of the entire
panel and the opposing party, either with or without
the aid of the party’s panel representative. The third,
impartial arbitrator is never privy to strategy dis-
cussions.
   Although the connection between the presentation
of evidence and negotiations is a bit more complex, I
am similarly persuaded that the presentation of evi-
dence does not, in and of itself, constitute negotiations.
The presentation of evidence is certainly an important
means by which the parties persuade the other side
to negotiate, but the two ultimately are related, yet
distinguishable. Foy, in fact, distinguished among three
categories of communication that occur in the presence
of the panel: presentation of evidence, argument and
negotiations.14 Although he testified that there was not
always a bright line between evidence and argument,
and that the proceedings tend to be somewhat informal,
he did not indicate that there was a similar difficulty
in distinguishing between the presentation of evidence
and negotiations. He was able to give a hypothetical
example of a type of communication, in the context of
the presentation of evidence, which he would catego-
rize as negotiation. In addition, both he and Anderson
testified that the parties regularly negotiate with each
other outside the presence of the panel. Rather than
constituting negotiations, the presentation of evidence
in TNA arbitration proceedings, like the presentation
of evidence in grievance proceedings in Waterbury
Teachers Assn. v. Freedom of Information Commis-
sion, supra, 240 Conn. 843–44, consists of the underly-
ing facts that are relevant to, but distinguishable
from, negotiations.
   Because I conclude that the presentation of evidence
is merely related to and does not itself constitute strat-
egy or negotiations with respect to collective bar-
gaining, the evidentiary portion of TNA arbitration
proceedings does not fall under that exemption from
the definition of ‘‘ ‘[m]eeting’ ’’ in § 1-200 (2), and is
therefore subject to the open meetings provision of the
FOIA, § 1-225 (a). See footnote 10 of this dissenting
opinion.
      Accordingly, I respectfully dissent.
  1
     General Statutes (Supp. 2014) § 1-200 provides in relevant part: ‘‘(1)
‘Public agency’ or ‘agency’ means:
   ‘‘(A) Any . . . department . . . of the state . . . including any commit-
tee of, or created by, any such . . . department . . . .’’ (Emphasis added.)
   Although § 1-200 has been amended since the events underlying this
appeal; see, e.g., Public Acts 2011, No. 11-220, § 1; the amendments have
no bearing on the merits of this appeal. In the interest of simplicity, I refer
to the current revision of the statute codified in the 2014 supplement.
    In Elections Review Committee of the Eighth Utilities District v. Freedom
of Information Commission, supra, 219 Conn. 687, we interpreted the
phrase ‘‘committee of’’ to mean subunit.
    2
      We specifically had noted in Elections Review Committee of the Eighth
Utilities District v. Freedom of Information Commission, supra, 219 Conn.
693, that if the statute were to include within the meaning of public agency
a committee ‘‘created by’’ the establishing public agency, the definition
would be significantly broader. We explained: ‘‘A ‘committee of’ an agency
would include a body composed solely of nonmembers of the agency to
whom the agency had assigned a particular task only if the use of the
possessive preposition were equivalent to ‘created by.’ Under such a con-
struction, even one person, wholly unassociated with the agency except for
the project assigned to him for study and recommendation, such as an
outside consultant, would constitute a ‘committee of’ the agency.’’ Id. Subse-
quent to our decision in Elections Review Committee of the Eighth Utilities
District, the legislature expanded the definition of public agency in § 1-200
(1) (A) to include a committee ‘‘created by’’ a public agency. Public Acts
1993, No. 93-195, § 1. Because I conclude that a TNA arbitration panel is a
‘‘committee of’’ the department, however, it is unnecessary to address in
this dissent whether it also is a committee created by the department.
The legislature’s response to this court’s decision, however, supports the
conclusion that it intended the definition of a committee of, or created by,
a public agency to be broad enough to encompass the TNA arbitration
panels. Our decision stated that if the statute included the phrase ‘‘created
by,’’ the definition would include even an outside contractor, whose only
association with the agency was the project assigned to him. Elections
Review Committee of the Eighth Utilities District v. Freedom of Informa-
tion Commission, supra, 693. In response, the legislature added precisely
that language.
    3
      Because I conclude that the arbitration panel pool is a subunit of the
department, I need not consider whether the panel is a public agency in its
own right, independent of any relationship it has with the department. I
observe, however, that although the majority has concluded that the panel
is not a public agency by virtue of being part of the department, it provides
no explanation as to why the panel does not otherwise fit the definition of
‘‘ ‘[p]ublic agency’ ’’ in § 1-200 (1) (A), despite the fact that the panel is
created by statute, is governed by an extraordinarily complex statutory
scheme, and is comprised of members who are appointed by the governor
and confirmed by the legislature. Moreover, the definition of ‘‘ ‘[p]ublic
agency’ ’’ in § 1-200 (1) (A) is extraordinarily broad, encompassing ‘‘[a]ny
executive, administrative or legislative office of the state or any political
subdivision of the state and any state or town agency, any department,
institution, bureau, board, 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, including
any committee of, or created by, any such office, subdivision, agency, depart-
ment, institution, bureau, board, commission, authority or official, and also
includes any judicial office, official, or body or committee thereof but only
with respect to its or their administrative functions, and for purposes of
this subparagraph, ‘judicial office’ includes, but is not limited to, the Division
of Public Defender Services . . . .’’ General Statutes (Supp. 2014) § 1-200
(1) (A). Yet the majority provides no discussion whatsoever explaining why
it has failed, in its statutory construction analysis, to consider whether the
arbitration panel, even if it is not a ‘‘committee of’’ the department, is a
public agency in its own right.
    4
      Without any explanation, the majority suggests that the meaning of the
word ‘‘in’’ is limited to indicating ‘‘physical surroundings.’’ It then confidently
asserts that the members of the arbitration panel pool are not located in
the department. The only aspect of the arbitration panel pool that is ‘‘in’’
the department, the majority states, is the list. There is simply no basis to
interpret the word ‘‘in’’ in such a narrow manner. To illustrate the lack of
logic in the limited scope of the majority’s definition: If the word ‘‘in’’ did
indeed have such a narrow meaning, then the statement, ‘‘the Superior Court
is in the Judicial Branch’’ would mean that the Superior Court is somehow
physically contained within the Judicial Branch.
    5
      The majority claims that the lack of an express provision in the TNA
requiring that the arbitration hearings be open to the public is significant
because: (1) if the legislature had wanted to make the hearings open to the
public it could have so required; and (2) in light of this court’s decision in
Elections Review Committee of the Eighth Utilities District v. Freedom of
Information Commission, supra, 219 Conn. 685, the failure of the legislature
subsequently to amend § 10-153f to reject this court’s interpretation of the
phrase ‘‘committee of’’ suggests legislative acquiescence.
    As to the first point, I observe that the legislature has expressly required
that hearings be open to the public, if the hearings are a meeting of a public
agency pursuant to the FOIA. The issue in this appeal is whether TNA
arbitration hearings are meetings of a public agency subject to the disclosure
requirements of the FOIA. If we required an express provision in each
substantive statute requiring public hearings, the open meetings requirement
of the FOIA would be redundant.
    As to the second point, I note that the nature of the disagreement between
the majority and the dissent does not concern whether the legislature acqui-
esced to our interpretation of the statutory phrase ‘‘committee of’’ in Elec-
tions Review Committee of the Eighth Utilities District v. Freedom of
Information Commission, supra, 219 Conn. 685, to mean a subunit of a
public agency. We are in agreement that a subunit of a public agency is a
public agency for purposes of the FOIA. Our disagreement concerns whether
the arbitration panel pool and the TNA arbitration panels are subunits of
the department. Moreover, as I point out in footnote 2 of this dissenting
opinion, the legislature’s response to Elections Review Committee of the
Eighth Utilities District supports the conclusion that it intended to extend
the meaning of the phrase ‘‘committee of’’ significantly by adding the lan-
guage ‘‘or created by.’’
    6
      The public policy principle favoring public access to government records
is particularly strong in the present case because of the importance that this
particular type of information has for the public. Expenditures on education
constitute the majority of a municipality’s budget. See http://www.ct.gov/
opm/lib/opm/FI_2008-2012_Asof3-6-14.pdf (last visited December 2, 2014).
Accordingly, the public has a strong interest in gaining access to TNA
arbitration proceedings, which concern issues that have a direct effect on
the cost of education in a municipality or district.
    7
      This broader purpose is reflected in the impasse resolution procedures
of the TNA, which are intentionally linked to a school district’s budget
submission date. Negotiations, for example, must commence not less than
210 days prior to the budget submission date. General Statutes § 10-153d
(b). If the parties have not come to an agreement 160 days prior to the
budget submission date, the parties must commence mediation. General
Statutes § 10-153f (b). If a settlement cannot be reached on or before 135 days
prior to the budget submission date, arbitration must commence. General
Statutes § 10-153f (c) (1).
    8
      I observe that the majority, with no analysis, asserts the bald conclusion
that the TNA arbitration panels are not the functional equivalent of a public
agency. Despite the fact that a conclusion to the contrary would render its
holding invalid, the majority simply dismisses the possibility without even
mentioning the four factor test used for determining whether an entity is
the functional equivalent of a public agency for purposes of the FOIA, which
this court first set forth in Board of Trustees v. Freedom of Information
Commission, 181 Conn. 544, 436 A.2d 266 (1980). Drawing from federal
law, we eschewed a formalistic approach in favor of a practical inquiry
centered on the following four factors: ‘‘(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.’’ Id., 554. We have emphasized that ‘‘[a]ll relevant
factors are to be considered cumulatively, with no single factor being essen-
tial or conclusive.’’ (Internal quotation marks omitted.) Connecticut
Humane Society v. Freedom of Information Commission, 218 Conn. 757,
761, 591 A.2d 395 (1991).
    9
      General Statutes (Supp. 2014) § 1-200 (2) provides in relevant part:
‘‘ ‘Meeting’ means any hearing or other proceeding of a public agency . . .
to discuss or act upon a matter over which the public agency has supervision,
control, jurisdiction or advisory power. ‘Meeting’ does not include . . .
strategy or negotiations with respect to collective bargaining . . . .’’
    10
       General Statutes § 1-225 (a) provides in relevant part: ‘‘The meetings of
all public agencies, except executive sessions, as defined in subdivision (6)
of section 1-200, shall be open to the public. . . .’’
    11
       For convenience, as I review the operational characteristics of the TNA
arbitration proceedings, I refer only to the TNA arbitration panels, although
the parties may elect to proceed with a single arbitrator rather than a panel.
See General Statutes § 10-153f (c).
   12
      James Larry Foy, the impartial arbitrator in the present case, explained
in his testimony before the commission that the evidence offered in connec-
tion with this factor consists of the ‘‘[h]istory of negotiations prior to arbi-
tration.’’
   13
      Foy could not recall whether the parties had presented interim last best
offers in the present case.
   14
      In light of the fact that the parties are free to negotiate with each other
outside the presence of the panel during the proceedings, the parties are
obviously not compelled to engage in negotiations with each other on the
record in the presence of the panel.
