KING v. BOARD OF EDUCATION

12944

203 Conn. 324 (1987) | Cited 38 times | Supreme Court of Connecticut | April 28, 1987

On this appeal, the defendant,the board of education of the town of Watertown(board), maintains that the trial court erred in awardingattorney's fees under General Statutes 10-2351to the plaintiff, Anthony F. King, the former superintendentof schools for the town of Watertown. Kingincurred these fees in an action litigating the enforceabilityof a contract entered into on November 5, 1980,between King and the board concerning King's resignationas superintendent. We find no error.

The disposition of this appeal requires the expositionof circumstances that have their genesis in an earlierrelated appeal. King v. Board of Education, 195 Conn. 90,486 A.2d 1111 (1985). That case arose as a resultof a claim for indemnification, filed pursuant to GeneralStatutes 10-235(a), for legal fees and costs

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     incurred by King in a lawsuit brought by the town councilof the town of Watertown against the board in whichKing was joined as a necessary party. Town Councilv. Board of Education, Superior Court, judicial districtof Waterbury, Docket No. 55550 (February 20, 1981)(town council action).2 There, the trial court concludedthat King had not sufficiently alleged a claim under theindemnification statute and granted the motion tostrike filed by the board. We found error. King v. Boardof Education, supra. In reversing the trial court's actionin King, we said: "We conclude that the legislatureintended to make indemnification available to a boardof education employee for losses sustained from claimsor suits for damages, injunctive relief or both, resultingfrom any act of the employee performed `in the dischargeof his or her duties or within the scope ofemployment or under the direction of such board'. . . ." Id., 97. We set aside the judgment andremanded with direction to deny the motion to strikeand for further proceedings. Id., 98. On remand, thetrial court rendered judgment in favor of King andawarded attorney's fees in the amount of $4499.19 plusinterest.

Because King is seeking indemnification for legalexpenses arising out of a suit for injunctive relief whichresulted from his signing the November 5, 1980 agreement,the only portion of 10-235 that requires constructionon the present appeal is whether King's legal feeswere incurred while he "was acting . . . withinthe scope of employment or under the direction of theboard of education."3 See General Statutes 10-235.

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     The trial court concluded that he was so acting. Weagree with the trial court.

Our conclusion that King was "acting . . . within thescope of [his] employment" within the reach of 10-235,while easy to state, requires, in its application, thatwe examine the factual circumstances that led to thepresent appeal.4 While occasionally cases may ariseunder 10-235 in which an employee is so clearly withinor without the scope of his employment that the questionis one of law, in the greater number of cases thedecision is a question of fact for the trier.

The memorandum of decision of February 20, 1981,of the trial court, Hull, J., in the town council action,of which the trial court, Gill, J., in the present casetook judicial notice, must serve as the starting pointfor our discussion. That decision states, inter alia: "Abasic social problem that rent the fabric of society inWatertown developed out of two actions of the Boardbeginning with the June, 1980 meeting and finalizedat the next two monthly meetings." First, five longtimeteachers who were department heads werereplaced because they had not complied with statutorycertification requirements. Second, at 1:30 a.m. at theJune meeting of the board, without that question beingon the agenda, William P. Williams, the "popular principal"of the high school was transferred to a junior

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     high school whose principal was in turn transferred tothe high school. When these events took place, "all hellbroke loose" and the "manner in which the departmenthead matter and particularly the Williams exchangewas handled showed insensitivity to citizen reaction andpublic relations which helped precipitate the presentimbroglio." King, who was a highly qualified educatorand professional educational administrator, approvedthe removal of the "uncertified department heads" butrecommended against the Williams transfer. Kingnevertheless became the "focal point of opposition tothe Board's actions." "The degree of public anger andresentment against the Board and . . . King rose toan unprecedented high pitch and this continued to disruptthe entire educational process of the town ofWatertown."

A citizens' group known as ARROW (Aroused RabbleRousers of Oakville and Watertown) was the principalopponent of the board. From June, 1980, andthereafter, ARROW was "an extremely active and attimes belligerent force in Watertown" and "[i]ts tacticsat times seemed threatening to local officials. Ithad 200 regular members and could turn out 800 or900 people at a town budget meeting. ARROW andits adherents were so fired up that they almost paralyzedthe educational system in Watertown." Boardopponents picketed the homes of board members andpainted green arrows pointed toward homes of boardmembers. Although nothing illegal was done by membersof ARROW, "a very high degree of personal,political and societal tension and animosity was everpresent." Because of their resentment against theboard, and particularly against the five member groupwhich controlled the board, ARROW and its supporters"effectively blocked" the adoption of the July 1, 1980 -June 30, 1981 Watertown annual budget. On August 25,1980, the town council adopted an interim budget for

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     the first ninety days of the new fiscal year and onNovember 25, 1980, adopted a further sixty day interim budget.Both interim appropriations contained "guide-lines"promulgated by the town council because of theausterity imposed by the lack of a budget. These "guide-lines"were properly made known to the board andwere in effect on November 5, 1980.5

In June, 1980, and thereafter, the board was "almostirreconcilably split 5-4" on the Williams and departmentheads matters. The controlling group of five "generallysupported" King while "some members of thefour man minority had reservations about him." As aresult of the "great public uproar," two members ofthe four member minority of the board solicited the helpof Mark Shedd, the then state commissioner of education.Thereafter, Shedd sent Peter Adomeit to Watertownto act as a mediator.6 Adomeit is an attorney whohas mediated "dozens of tense situations through theyears . . . ."

Adomeit found a "hopelessly split Board with . . .King a lightning rod for community hostility." As themediator, he felt that he had three objectives: "(a) todefuse the situation and remove the threat of violence;(b) to protect the interests of the Board; [and] (c) toprotect the interests of . . . King's professionaladvancement." Adomeit determined that it was "imperative"that King resign. He noted that King would havedifficulty in securing another position at that time assuperintendents are usually hired one year in advance.

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No claim was ever made that grounds existed toremove King for cause. The five member majority ofthe board was not willing to attempt to fire King orseek his resignation.7 It remained willing to give hima new contract until the agreement of November 5,1980, was reached. The majority of the board felt thatit was necessary to provide "a fair financial package"to King if he would resign because "he was largely notresponsible for the turmoil and would be suddenly terminatedwith no immediate employment prospects."The five member majority "was very much concernedabout . . . King's family and his financial security."The four member minority agreed to the November 5,1980 agreement because "it felt that . . . King mustgo" and it was concerned that if it did not agree withthis agreement, "the majority would agree to give. . . King a longer contract than was achieved."

At a special meeting on November 5, 1980, the boardunanimously approved an agreement worked out byAdomeit. That agreement included the renewal ofKing's one year contract and the tender by King of hisresignation and the board's acceptance of the same.While the renewal of King's contract and his promptresignation were arranged so that it might be easierfor him to gain other employment, this had "little substanceand probably contributed to the public reactionwhich occurred." The court found, however, that theboard had acted in good faith in its approval of theagreement and "was acutely aware of and acted indirect response to the community response over theBoard's actions and the widespread community demandthat . . . King be ousted."

Although "[f]rom a purely financial viewpoint theagreement was an unusually generous one," there was

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     "much to be said on . . . King's behalf." King "wasbeing forced out for reasons largely not of his doing."A majority of the board "felt that he should be reappointed,"that his "reputation would be unfairly tarnishedearly in his career" and that King "could makea strong claim that he was a mere scapegoat, caughtin the crossfire between competing interests."

Thereafter, on December 8, 1980, the town councilbrought an action against the board to enjoin the implementationof the November 5, 1980 agreement. TownCouncil v. Board of Education, supra. The board thenmoved to dismiss and strike the complaint in that thetown council had failed to join King as a party "necessaryand indispensable to the granting of the reliefrequested . . ." The court then ordered King citedin as a party defendant. "Because he was cited in,[King] found it necessary to retain legal counsel to representhim . . . and, accordingly, incurred expensesfor legal fees and other costs related to that action."King v. Board of Education, supra, 94.

After the remand ordered in King, the trial court,Gill, J., conducted an evidentiary hearing at which Kingand the chairperson of the board on November 5, 1980,testified.8 The parties agreed to the admission, as anexhibit, of Adomeit's testimony in the town councilaction which describes in great detail not only the graveproblems he found in "deeply divided" Watertown, buthis evaluations, negotiations and recommendationsleading to the November 5, 1980 agreement.

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In this appeal, we must determine whether in theunusual circumstances of this case the interpretationto be given the "within the scope of employment" language,as used in 10-235, legally justifies the trialcourt's award of attorney's fees.

"The fundamental objective of statutory constructionis to ascertain and give effect to the apparent intentof the legislature." State v. Kozlowski, 199 Conn. 667,673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52,57, 480 A.2d 425 (1984); see 2A J. Sutherland, StatutoryConstruction (4th Ed. Sands) 58.06, p. 723. "Asis true in every case involving the construction of a statute,our starting point must be the language employedby the legislature." Verdon v. Transamerica Ins. Co.,187 Conn. 363, 366, 446 A.2d 3 (1982); see Lundy Electronics& Systems, Inc. v. Tax Commissioner, 189 Conn. 690,695, 458 A.2d 387 (1983). We may also look to thelegislative history and the circumstances surroundingthe statutory enactment and to legislative practice andpolicy. State v. Kozlowski, supra, 673-74. It is of somesignificance that the legislature did not define thephrase in question. The legislature wisely recognizedthe difficulty of composing a formula which wouldclearly demarcate the line between what is and whatis not "within the scope of employment" and left eachcase to its own particular circumstances. See, e.g., 99C.J. S. 676, Workmen's Compensation 208. "In construinga statute, common sense must be used, andcourts> will assume that the legislature intended to

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     accomplish a reasonable and rational result." Stoni v.Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979).Justice Cardozo once said: "Consequences cannot alterstatutes, but may help to fix their meaning. Statutesmust be construed, if possible, that absurdity and mischiefmay be avoided." In re Rouss, 221 N.Y. 81, 91,116 N.E. 782 (1917).

As we explicitly stated in King, since the first enactmentin 1945 of the statute which has now become10-235 (a), "the protection afforded by the statute hasbeen expanded frequently both with respect to the personscovered and the circumstances under which indemnificationis available." King v. Board of Education,supra, 959 In 1973, this statute already protected thosecovered "from financial loss or expense, including legalfees and costs, if any, arising out of any claim, demand,suit or judgment by reason of alleged negligence . . .or any other acts . . . provided such . . . employee,at the time of the acts . . . was acting in the dischargeof his duties or . . . under the direction of such boardof education . . . ."10 (Emphasis added.)

The encompassing "or any other acts" language wasadded expanding the protection and coverage of10-235 (a) in 1972.11 See Public Acts 1972, No. 201,

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     1. The phrase "any other acts," albeit in another contextand not controlling, has been said to include anyact that is "other," which means "in addition to" or"distinct from" those acts already mentioned. See Inre Estate of Freshour, 177 Kan. 492, 280 P.2d 642(1955). The word "any" has a diversity of meaningsand may be used to indicate "all" or "every" as wellas "some" or "one" and its meaning in a given statutedepends upon the context and subject matter of thestatute. Donohue v. Zoning Board of Appeals, 155 Conn. 550,556, 235 A.2d 643 (1967); New York, N. H. & H.R. Co. v. Stevens, 81 Conn. 16, 21, 69 A. 1052 (1908).If that test is applied, it is apparent here that "any"means "all" or "every." Not only do these words ofthe 1972 enactment impose no limitation but a 1973amendment further broadens the scope of the statuteby adding the phrase "including but not limited toinfringement of any person's civil rights." See PublicActs 1973, No. 73-651, 1.12 This amendment

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     underscores the broad legislative sweep of the term "anyother acts" as it is used in 10-235.

Further support for our conclusion can be found inthe fact that the 1972 amendment also inserted theword "or" after "duties" in that portion of the statutewhich prior to that time had stated: "provided such. . . employee . . . was acting in the discharge ofhis duties within the scope of his employment or underthe direction of such board of education . . . ." Theinsertion of the additional disjunctive before "withinthe scope of his employment," thereby placing thatphrase between two disjunctives and separating it fromthe "acting in the discharge of his duties" phraseologyserved not only to create another alternative affording10-235 protection, but also arguably broadenedthe scope of employment ground because an employeeno longer had to be "acting in the discharge of hisduties" and "within the scope of his employment.""When changes have been introduced by amendmentit is not to be assumed that they are without design."City of Stamford v. Town of Stamford, 107 Conn. 596,606, 141 A. 891 (1928); Robinson v. UnemploymentSecurity Board of Review, 181 Conn. 1, 21 n. 6,434 A.2d 293(1980); 1A J. Sutherland, supra, 22.30, p. 265.Of course, the presumed change does not go any further

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     than that which is expressly declared or necessarilyimplied. Robinson v. Unemployment Security Board ofReview, supra; Doe v. Institute of Living, Inc.,175 Conn. 49, 63, 392 A.2d 491 (1978). In any event, thedisjunctive "or" added in 1972 appears to have beenintentionally used with its alternative significance andnot, carelessly, as conjunctive. Harris v. Egan,135 Conn. 102, 105, 60 A.2d 922 (1948). Its use indicates aclear legislative intent of separability. State v. Pascucci,164 Conn. 69, 72, 316 A.2d 750 (1972).

Additional support for our conclusion can be foundin the interpretation of the phrase "within the scope ofemployment" in the context of the workers' compensationstatute. Although the workers' compensation casesare not controlling on the issue before us, they are,nevertheless, instructive for at least two reasons. First,in those cases, statutory coverage does not require thatthe compensable injury result when the employee is actingsolely or only for the benefit of the employer. See,e.g., Dombach v. Olkon Corporation, 163 Conn. 216,302 A.2d 270 (1972); Marks' Dependents v. Grey,251 N.Y. 90, 93-94, 167 N.E. 181 (1929) (Cardozo, J.). Second,unlike 10-235, the workers' compensation statuteprovides that a personal injury is compensable whenit is one "arising out of and in the course of [the employee's]employment . . . ." (Emphasis added.) GeneralStatutes 31-284 (a).13 The terms "arising out of" and"in the course of" set out a "two-part test" and each

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     must be demonstrated by the claimant. McNamara v.Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979);see Morin v. Lemieux, 179 Conn. 501, 427 A.2d 397(1980). As we have noted, 10-235 sets forth three disjunctivecircumstances where attorney's fees may berecoverable, i.e., "in the discharge of [the employee's]duties or within the scope of employment or under thedirection of [the] board of education . . . ." (Emphasisadded.) While we have no doubt that "within thescope of his employment" means that the legal injurymust be incurred by an employee of a board of educationand that the legal injury must be causally connectedto that employment; see Phipps v. Niejadlik, 175 Conn. 424,399 A.2d 1256 (1978); the three disjunctive basesset out in 10-235, fairly read, indicate a standard notquite as strict as that for workers' compensation under31-284 (a).

The board argues that the trial court erred in its"exclusive reliance on the `course of employment' standardunder the workers' compensation statute" whenit more appropriately should have considered "the purposeof 10-235 to protect employees when acting intheir employee capacities. It also maintains that "[n]otwithstandingthe fact that King was [s]uperintendentof [s]chools when he signed the severance agreement,he could not have been acting as [s]uperintendent, butas an individual severing his employment relationshipwith [the board] on terms which were in the agreementonly to satisfy [his] personal financial demands." Withoutany such finding by the trial court and without anyrequest for further articulation, the board asserts thatit is admitted that no agreement would have been concludedin the absence of these financial terms. We note,

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     to the contrary, that the testimony of King at theremand hearing would have supported a finding, if onehad been made, that a satisfactory financial arrangementfor him was not the sole reason for his signingthe agreement.14

The board's argument that King was acting individuallyand not as superintendent when he signed theNovember 5, 1980 agreement lacks merit. It is true thatthe word "superintendent" does not appear along withhis signature on this agreement. But it is also true thatthat very agreement plainly sets out that the board had"voted to renew the contract of [King] as [s]uperintendentof [s]chools in Watertown for the academicyear 1981-1982 . . ." and his signing that agreementrecited the tender of "his resignation of [his] employmentwith the Board . . ." and the board's acceptanceof that resignation. It is patently unrealistic to arguethat the board was dealing with King as an individualwhen we consider the "tumultuous events facing the

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     town with the town "[facing] a true crisis of unprecedentedproportions" that brought both the full boardand King to enter the agreement of November 5, 1980.When King signed the agreement, he had valuablecontractual rights that he was not required to waive. Theserights included the remainder of his term under hisoriginal contract, as well as a new one year term assuperintendent for 1981-1982. Moreover, the executionof this agreement was not, as the board argues,on terms "which were in the agreement only to satisfyKing's personal financial demands." What we havealready set out and the agreement itself discloses is thatthe board, and indeed the town of Watertown, alsobenefited by the agreement.15

The causal connection of the agreement to King's statusas an employee of the board is obvious. There isno finding that King's motivations in signing the agreementwith the board were solely personal; the executedagreement involved benefits to both the board and Kingand it also involved concessions by both parties. Thebest interests of the educational system of the town ofWatertown and of the town itself in successfully negotiatingfor the termination of the employer-employeerelationship constituted strong links in forging the necessarycausal connection in what both parties perceivedas a mutual agreement terminating that relationship.

In the town council action, King was not an adversaryof the board, but a codefendant and, significantly,not a nominal defendant. Under all the circumstances,the town council action has to be viewed as an attempt

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     to enjoin the implementation of an agreement betweenthe board and King entered into while King wasemployed by the board and which the parties, both representedby counsel, negotiated concerning one basicmatter - the continuation of the employer-employeerelationship. The town council did not prevail and thereis no appeal pending in that case. Basically, concernedas the town council was with King's continuing statusas superintendent of schools, the November 5, 1980agreement was effected when King was a boardemployee and was causally connected with his statusas an employee. Because the agreement was significantlyconnected with his employment, the challengedactivity was "within the scope of [King's] employment"as required by 10235.16

Our conclusion accords with the purpose of 10-235.In 1972, the statute was amended to include the "orany other acts" language. In addressing this expansivelanguage, proceedings on the Senate floor indicatedthat this amendment "would include acts which are notwanton, reckless or malicious and would cover morethan just accident or negligence [sic] type of action

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     brought against them." 15 S. Proc., Pt. 5, 1972 Sess.,p. 2280, remarks of Senator James J. Murphy, Jr. Wetherefore disagree with the board's argument thatKing's conduct, vis-a-vis his execution of the November5, 1980 agreement, was not within the scope of hisemployment and not an act that 10-235 intended toencompass.

The board also claims that the trial court erroneouslyawarded King statutory interest under General Statutes37-3a.17 The allowance of interest as an elementof damages is primarily an equitable determinationwithin the discretion of the trial court. Bertozzi v.McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973).On this record, we see no reasonable ground uponwhich to find an abuse of the trial court's discretion.18

There is no error.

In this opinion the other justices concurred.

1. General Statutes 10-235 provides in relevant part:"(a) Each board of education shall protect and save harmlessany member of such board or any teacher or other employeethereof or any member of its supervisory or administrativestaff, and the state board of education, the board of governorsof higher education, the board of trustees of each stateinstitution and each state agency which employs any teacher,and the managing board of any public school, as defined insection 10-183b, shall protect and save harmless any memberof such boards, or any teacher or other employee thereof orany member of its supervisory or administrative stuff employedby it, from financial loss and expense, including legalfees and costs, if any, arising out of any claim, demand,suit or judgment by reason of alleged negligence or otheract resulting in accidental bodily injury to or death ofany person, or in accidental damage to or destruction ofproperty, within or without the person, or in accidentaldamage to or destruction of property, within or withoutthe school building, or any other acts, including but notlimited to infringement of any person's civil rights, resultingin any injury, which acts are not wanton, reckless or malicious,provided such teacher, member or employee, at the time ofthe acts resulting in such injury, damage or destruction,was acting in the discharge of his or her duties or withinthe scope of employment or under the direction of such boardof education . . . ."

2. The trial court in the present appeal, Gill, J.,took judicial notice of this case. This court can and alsohas taken judicial notice of this case. See, e.g., State v.Davis, 192 Conn. 739, 744 n. 2, 474 A.2d 776 (1984); Brockettv. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966). The town council action was instituted against the Watertownboard of education only.

3. The board does not question that King, as superintendentof schools, qualified as an employee within the reach ofGeneral Statutes 10-235. In King v. Board of Education,195 Conn. 90, 97, 486 A.2d 1111 (1985), we determined that thelegislature "intended to make indemnification available toa board of education employee for losses sustained from . . .suits for . . . injunctive relief . . . ."

4. We disagree, for two reasons, with the board'scontention that the evidence of the factual circumstancesprevailing in Watertown to which the trial court referredand upon which it relied is immaterial to the issue presentedunder General Statutes 10-235. First, the determination as towhat is within the scope of employment is initially a fact-bounddetermination. Second, we must take note of this evidencebecause the board charges that in deciding the issue thetrial court below ignored certain evidence.

5. Judge Hull found that two of these "guidelines"or "expenditure rules" were violated by one paragraph ofthe November 5, 1980 agreement between the board and King.He also found that there were "sufficient uncommitted fundswithin the Board's interim budget . . . to fund the agreement."

6. Peter Adomeit was one of five mediators used byShedd on a contract basis. He presently teaches law at WesternNew England College School of Law and formerly taught at theUniversity of Connecticut School of Law.

7. The members of the board knew that under King'scontract, they could, on six months notice, that is, beforeDecember 31, 1980, discharge King with no payment.

8. The board in its brief concerning the motivationand reasons for singing the November 5, 1980 agreement,argues that the trial court, Gill, J., ignored certaintestimony of King. This argument is rejected for severalreasons. First, the trial court's memorandum of decisionexplicitly recognizes that the board was claiming that, insigning the November 5, 1980 agreement, King acted "solelyin an individual capacity and for individual reasons and,therefore, falls outside the parameters of General StatutesSection 10-235." Second, a fair reading of the transcriptof King's testimony discloses that the evidence on hismotivations and reasons for signing the agreement requiredan evaluation by the trier of the extent to which his signingwas based on personal interests and the best interests of theschool system. Third, although the trial court's memorandumindicates that it made very few findings of fact, the courtfile discloses that the board did not seek an articulationof that decision. Practice Book 4051 (formerly 3082). Fourth,given the presumption that judicial acts and duties havebeen duly and regularly performed, there is nothing beforeus to demonstrate that the trial court ignored the evidenceinvolved. See Brookfield v. Candlewood Shores Estates Inc.,201 Conn. 1, 6, 513 A.2d 1218 (1986).

9. The legislative history of General Statutes 10-235is reviewed in some detail in King v. Board of Education,195 Conn. 90, 95-96, 486 A.2d 1111 (1985).

10. Certainly it does not appear reasonable thatthe phrase "in the discharge of his duties" of General Statutes10-235 is applicable. There is no argument, under the circumstancesof this case, that the plaintiff had a duty to resign assuperintendent of schools.

11. Public Acts 1972, No. 201, 1, provides in relevantpart: "Section 10-235 of the 1971 supplement to the generalstatutes is repealed and the following is substituted inlieu thereof: Each board of education shall protect and saveharmless any member of such board or any teacher or otheremployee thereof or any member of its supervisory or administrativestaff, and the state board of education, the commission forhigher education, the board of trustees of each state institutionand each state agency which employs any teacher, and the managingboard of any public school, as defined in section 10-161,shall protect and save harmless any member of such boardor commission, or any teacher or other employee thereof orany member of its supervisory or administrative staff employedby it, from financial loss and expense, including legal feesand costs, if any, arising out of any claim, demand, suit orjudgment by reason of alleged negligence or other act resultingin accidental bodily injury to or death of any person, or inaccidental damage to or destruction of property, within orwithout the school building, OR ANY OTHER ACTS RESULTINGIN ANY INJURY, WHICH ACTS ARE NOT WANTON, RECKLESS OR MALICIOUS,provided such teacher, member or employee, at the time ofthe [accident] ACTS resulting in such injury, damage ordestruction, was acting in the discharge of his duties ORwithin the scope of his employment or under the directionof such board of education, the commission for higher education,board of trustees, state agency, department or managing board."

12. Public Acts 1973, No. 73-651, 1, provides inpart: "(a) Each board of education shall protect and saveharmless any member of such board or any teacher or otheremployee thereof or any member of its supervisory or administrativestaff, and the state board of education, the commission forhigher education, the board of trustees of each state institutionand each state agency which employs any teacher, and themanaging board of any public school, as defined in section10-161, shall protect and save harmless any member of suchboard or commission, or any teacher or other employeethereof or any member of its supervisory or administrativestaff employed by it, from financial loss and expense,including legal fees and costs, if any, arising out of anyclaim, demand, suit or judgment by reason of allegednegligence or other act resulting in accidental bodily injuryto or death of any person, or in accidental damage to ordestruction of property, within or without the school building,or any other acts, INCLUDING BUT NOT LIMITED TO INFRINGEMENTOF ANY PERSON'S CIVIL RIGHTS, resulting in any injury, whichacts are not wanton, reckless or malicious, provided suchteacher, member or employee, at the time of the acts resultingin such injury, damage or destruction, was acting in thedischarge of his duties or within the scope of his employmentor under the direction of such board of education, the commissionfor higher education, board of trustees, state agency, departmentor managing board."

13. General Statutes 31-284 (a) provides: "An employershall not be liable to any action for damages on account ofpersonal injury sustained by an employee arising out of andin the course of his employment or on account of death resultingfrom personal injury so sustained, but an employer shall securecompensation for his employees as follows, except that compensationshall not be paid when the personal injury has been causedby the wilful and serious misconduct of the injured employeeor by his intoxication. All rights and claims between employerand employees, or any representatives or dependents of suchemployees, arising out of personal injury or death sustainedin the course of employment as aforesaid are abolished otherthan rights and claims given by this chapter, provided nothingherein shall prohibit any employee from securing, by agreementwith his employer, additional benefits from his employerfor such injury or from enforcing such agreement for additionalbenefits."

14. During the cross-examination of King at theremand hearing, the following took place: "Q. Now, you testified in your direct that at sometime,I believe, during October of 1980 you reached a determinationthat the recommendation of Mr. Adomeit that you resign assuperintendent was not something that you were willing toconsider, is that - was something that you were willing toconsider, is that correct? "A. I was willing to consider it on the basis that I feltthat it would be in the best interest of the school systemand my family, yes. * * * "Q. Is it fair to say, Mr. King, that you were willingto accept the idea of resignation only if the terms wereright from a financial standpoint, is that correct? "A. No, that is not correct. That was not the only [criteria]for my considering submitting the resignation. "Q. That wasn't my question. My question is, would youhave resigned if the financial terms of the agreement didnot satisfy the criteria that you just referred to? "A. I would have to say the answer to that is no. "Q. Would not have resigned? "A. Would not have resigned."

15. Although the trial court in the prior actionultimately concluded that the agreement had been legallyentered into, the memorandum of decision in that actiondiscloses the following: `The court concludes that theexpenditure rules adopted by the Council are beyond itsauthority and illegal insofar as they apply to the educationalbudget. . . . The November 5th agreement was legal and notlegally in violation of the Town Council's interim budgetrules since those rules were illegal and beyond the Council'sauthority. . . ."

16. The board's reliance on Kearney v. Board ofEducation, Superior Court, judicial district of Hartford-NewBritain at Hartford, Docket No. 224794 (December 19, 1979),is misplaced. Initially, Kearney and the case before us arecompletely different factually. In Kearney, the plaintiff soughtindemnification for his legal expenses under General Statutes10-235 after he had successfully defended an action broughtagainst him by the board of education seeking his terminationfor his disciplining of a student. In the present appeal, theboard and King were codefendants and not adversaries, as inKearney. In addition, the Kearney court states that the"question posed by the facts of this case is whether thepaying of expenses or loss is intended by the statute tocover those paid by the teacher [Kearney] to defend himselfagainst the Board's charges (whether he or it initiates theprocess) as opposed to a third person's charges." It is thusapparent that Kearney, fairly read, at least seems to recognizethat 10-235 can apply when a covered employee incurs suchexpenses in defending against an action instituted by a thirdparty, which is the posture of the case before us. Itspersuasiveness on the issue on the present appeal is, therefore,attenuated by its dissimilarities to the present matter.

17. General Statutes 37-3a provides: "RATERECOVERABLE AS DAMAGES. Except as provided in sections37-3b and 52-192a, interest at the rate of ten per centa year, and no more, may be recovered and allowed in civilactions or arbitration proceedings under chapter 909, includingactions to recover money loaned at a greater rate, as damagesfor the detention of money after it becomes payable exceptas otherwise provided with respect to demand obligations insection 42a-3-122 (4)(a). Judgment may be given for therecovery of taxes assessed and paid upon the loan, and theinsurance upon the estate mortgaged to secure the loan,whenever the borrower has agreed in writing to pay suchtaxes or insurance or both. Whenever the maker of any contractis a resident of another state or the mortgage security islocated in another state, any obligee or holder of suchcontract, residing in this state, may lawfully recover anyagreed rate of interest or damages on such contract untilit is fully performed, not exceeding the legal rate of interestin the state where such contract purports to have been madeor such mortgage security is located."

18. The trial court, Gill, J., refused to award Kingpunitive damages. In its brief, the board argues that thetrial

On this appeal, the defendant,the board of education of the town of Watertown(board), maintains that the trial court erred in awardingattorney's fees under General Statutes 10-2351to the plaintiff, Anthony F. King, the former superintendentof schools for the town of Watertown. Kingincurred these fees in an action litigating the enforceabilityof a contract entered into on November 5, 1980,between King and the board concerning King's resignationas superintendent. We find no error.

The disposition of this appeal requires the expositionof circumstances that have their genesis in an earlierrelated appeal. King v. Board of Education, 195 Conn. 90,486 A.2d 1111 (1985). That case arose as a resultof a claim for indemnification, filed pursuant to GeneralStatutes 10-235(a), for legal fees and costs

[203 Conn. 326]

     incurred by King in a lawsuit brought by the town councilof the town of Watertown against the board in whichKing was joined as a necessary party. Town Councilv. Board of Education, Superior Court, judicial districtof Waterbury, Docket No. 55550 (February 20, 1981)(town council action).2 There, the trial court concludedthat King had not sufficiently alleged a claim under theindemnification statute and granted the motion tostrike filed by the board. We found error. King v. Boardof Education, supra. In reversing the trial court's actionin King, we said: "We conclude that the legislatureintended to make indemnification available to a boardof education employee for losses sustained from claimsor suits for damages, injunctive relief or both, resultingfrom any act of the employee performed `in the dischargeof his or her duties or within the scope ofemployment or under the direction of such board'. . . ." Id., 97. We set aside the judgment andremanded with direction to deny the motion to strikeand for further proceedings. Id., 98. On remand, thetrial court rendered judgment in favor of King andawarded attorney's fees in the amount of $4499.19 plusinterest.

Because King is seeking indemnification for legalexpenses arising out of a suit for injunctive relief whichresulted from his signing the November 5, 1980 agreement,the only portion of 10-235 that requires constructionon the present appeal is whether King's legal feeswere incurred while he "was acting . . . withinthe scope of employment or under the direction of theboard of education."3 See General Statutes 10-235.

[203 Conn. 327]

     The trial court concluded that he was so acting. Weagree with the trial court.

Our conclusion that King was "acting . . . within thescope of [his] employment" within the reach of 10-235,while easy to state, requires, in its application, thatwe examine the factual circumstances that led to thepresent appeal.4 While occasionally cases may ariseunder 10-235 in which an employee is so clearly withinor without the scope of his employment that the questionis one of law, in the greater number of cases thedecision is a question of fact for the trier.

The memorandum of decision of February 20, 1981,of the trial court, Hull, J., in the town council action,of which the trial court, Gill, J., in the present casetook judicial notice, must serve as the starting pointfor our discussion. That decision states, inter alia: "Abasic social problem that rent the fabric of society inWatertown developed out of two actions of the Boardbeginning with the June, 1980 meeting and finalizedat the next two monthly meetings." First, five longtimeteachers who were department heads werereplaced because they had not complied with statutorycertification requirements. Second, at 1:30 a.m. at theJune meeting of the board, without that question beingon the agenda, William P. Williams, the "popular principal"of the high school was transferred to a junior

[203 Conn. 328]

     high school whose principal was in turn transferred tothe high school. When these events took place, "all hellbroke loose" and the "manner in which the departmenthead matter and particularly the Williams exchangewas handled showed insensitivity to citizen reaction andpublic relations which helped precipitate the presentimbroglio." King, who was a highly qualified educatorand professional educational administrator, approvedthe removal of the "uncertified department heads" butrecommended against the Williams transfer. Kingnevertheless became the "focal point of opposition tothe Board's actions." "The degree of public anger andresentment against the Board and . . . King rose toan unprecedented high pitch and this continued to disruptthe entire educational process of the town ofWatertown."

A citizens' group known as ARROW (Aroused RabbleRousers of Oakville and Watertown) was the principalopponent of the board. From June, 1980, andthereafter, ARROW was "an extremely active and attimes belligerent force in Watertown" and "[i]ts tacticsat times seemed threatening to local officials. Ithad 200 regular members and could turn out 800 or900 people at a town budget meeting. ARROW andits adherents were so fired up that they almost paralyzedthe educational system in Watertown." Boardopponents picketed the homes of board members andpainted green arrows pointed toward homes of boardmembers. Although nothing illegal was done by membersof ARROW, "a very high degree of personal,political and societal tension and animosity was everpresent." Because of their resentment against theboard, and particularly against the five member groupwhich controlled the board, ARROW and its supporters"effectively blocked" the adoption of the July 1, 1980 -June 30, 1981 Watertown annual budget. On August 25,1980, the town council adopted an interim budget for

[203 Conn. 329]

     the first ninety days of the new fiscal year and onNovember 25, 1980, adopted a further sixty day interim budget.Both interim appropriations contained "guide-lines"promulgated by the town council because of theausterity imposed by the lack of a budget. These "guide-lines"were properly made known to the board andwere in effect on November 5, 1980.5

In June, 1980, and thereafter, the board was "almostirreconcilably split 5-4" on the Williams and departmentheads matters. The controlling group of five "generallysupported" King while "some members of thefour man minority had reservations about him." As aresult of the "great public uproar," two members ofthe four member minority of the board solicited the helpof Mark Shedd, the then state commissioner of education.Thereafter, Shedd sent Peter Adomeit to Watertownto act as a mediator.6 Adomeit is an attorney whohas mediated "dozens of tense situations through theyears . . . ."

Adomeit found a "hopelessly split Board with . . .King a lightning rod for community hostility." As themediator, he felt that he had three objectives: "(a) todefuse the situation and remove the threat of violence;(b) to protect the interests of the Board; [and] (c) toprotect the interests of . . . King's professionaladvancement." Adomeit determined that it was "imperative"that King resign. He noted that King would havedifficulty in securing another position at that time assuperintendents are usually hired one year in advance.

[203 Conn. 330]

No claim was ever made that grounds existed toremove King for cause. The five member majority ofthe board was not willing to attempt to fire King orseek his resignation.7 It remained willing to give hima new contract until the agreement of November 5,1980, was reached. The majority of the board felt thatit was necessary to provide "a fair financial package"to King if he would resign because "he was largely notresponsible for the turmoil and would be suddenly terminatedwith no immediate employment prospects."The five member majority "was very much concernedabout . . . King's family and his financial security."The four member minority agreed to the November 5,1980 agreement because "it felt that . . . King mustgo" and it was concerned that if it did not agree withthis agreement, "the majority would agree to give. . . King a longer contract than was achieved."

At a special meeting on November 5, 1980, the boardunanimously approved an agreement worked out byAdomeit. That agreement included the renewal ofKing's one year contract and the tender by King of hisresignation and the board's acceptance of the same.While the renewal of King's contract and his promptresignation were arranged so that it might be easierfor him to gain other employment, this had "little substanceand probably contributed to the public reactionwhich occurred." The court found, however, that theboard had acted in good faith in its approval of theagreement and "was acutely aware of and acted indirect response to the community response over theBoard's actions and the widespread community demandthat . . . King be ousted."

Although "[f]rom a purely financial viewpoint theagreement was an unusually generous one," there was

[203 Conn. 331]

     "much to be said on . . . King's behalf." King "wasbeing forced out for reasons largely not of his doing."A majority of the board "felt that he should be reappointed,"that his "reputation would be unfairly tarnishedearly in his career" and that King "could makea strong claim that he was a mere scapegoat, caughtin the crossfire between competing interests."

Thereafter, on December 8, 1980, the town councilbrought an action against the board to enjoin the implementationof the November 5, 1980 agreement. TownCouncil v. Board of Education, supra. The board thenmoved to dismiss and strike the complaint in that thetown council had failed to join King as a party "necessaryand indispensable to the granting of the reliefrequested . . ." The court then ordered King citedin as a party defendant. "Because he was cited in,[King] found it necessary to retain legal counsel to representhim . . . and, accordingly, incurred expensesfor legal fees and other costs related to that action."King v. Board of Education, supra, 94.

After the remand ordered in King, the trial court,Gill, J., conducted an evidentiary hearing at which Kingand the chairperson of the board on November 5, 1980,testified.8 The parties agreed to the admission, as anexhibit, of Adomeit's testimony in the town councilaction which describes in great detail not only the graveproblems he found in "deeply divided" Watertown, buthis evaluations, negotiations and recommendationsleading to the November 5, 1980 agreement.

[203 Conn. 332]

In this appeal, we must determine whether in theunusual circumstances of this case the interpretationto be given the "within the scope of employment" language,as used in 10-235, legally justifies the trialcourt's award of attorney's fees.

"The fundamental objective of statutory constructionis to ascertain and give effect to the apparent intentof the legislature." State v. Kozlowski, 199 Conn. 667,673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52,57, 480 A.2d 425 (1984); see 2A J. Sutherland, StatutoryConstruction (4th Ed. Sands) 58.06, p. 723. "Asis true in every case involving the construction of a statute,our starting point must be the language employedby the legislature." Verdon v. Transamerica Ins. Co.,187 Conn. 363, 366, 446 A.2d 3 (1982); see Lundy Electronics& Systems, Inc. v. Tax Commissioner, 189 Conn. 690,695, 458 A.2d 387 (1983). We may also look to thelegislative history and the circumstances surroundingthe statutory enactment and to legislative practice andpolicy. State v. Kozlowski, supra, 673-74. It is of somesignificance that the legislature did not define thephrase in question. The legislature wisely recognizedthe difficulty of composing a formula which wouldclearly demarcate the line between what is and whatis not "within the scope of employment" and left eachcase to its own particular circumstances. See, e.g., 99C.J. S. 676, Workmen's Compensation 208. "In construinga statute, common sense must be used, andcourts> will assume that the legislature intended to

[203 Conn. 333]

     accomplish a reasonable and rational result." Stoni v.Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979).Justice Cardozo once said: "Consequences cannot alterstatutes, but may help to fix their meaning. Statutesmust be construed, if possible, that absurdity and mischiefmay be avoided." In re Rouss, 221 N.Y. 81, 91,116 N.E. 782 (1917).

As we explicitly stated in King, since the first enactmentin 1945 of the statute which has now become10-235 (a), "the protection afforded by the statute hasbeen expanded frequently both with respect to the personscovered and the circumstances under which indemnificationis available." King v. Board of Education,supra, 959 In 1973, this statute already protected thosecovered "from financial loss or expense, including legalfees and costs, if any, arising out of any claim, demand,suit or judgment by reason of alleged negligence . . .or any other acts . . . provided such . . . employee,at the time of the acts . . . was acting in the dischargeof his duties or . . . under the direction of such boardof education . . . ."10 (Emphasis added.)

The encompassing "or any other acts" language wasadded expanding the protection and coverage of10-235 (a) in 1972.11 See Public Acts 1972, No. 201,

[203 Conn. 334]

     1. The phrase "any other acts," albeit in another contextand not controlling, has been said to include anyact that is "other," which means "in addition to" or"distinct from" those acts already mentioned. See Inre Estate of Freshour, 177 Kan. 492, 280 P.2d 642(1955). The word "any" has a diversity of meaningsand may be used to indicate "all" or "every" as wellas "some" or "one" and its meaning in a given statutedepends upon the context and subject matter of thestatute. Donohue v. Zoning Board of Appeals, 155 Conn. 550,556, 235 A.2d 643 (1967); New York, N. H. & H.R. Co. v. Stevens, 81 Conn. 16, 21, 69 A. 1052 (1908).If that test is applied, it is apparent here that "any"means "all" or "every." Not only do these words ofthe 1972 enactment impose no limitation but a 1973amendment further broadens the scope of the statuteby adding the phrase "including but not limited toinfringement of any person's civil rights." See PublicActs 1973, No. 73-651, 1.12 This amendment

[203 Conn. 335]

     underscores the broad legislative sweep of the term "anyother acts" as it is used in 10-235.

Further support for our conclusion can be found inthe fact that the 1972 amendment also inserted theword "or" after "duties" in that portion of the statutewhich prior to that time had stated: "provided such. . . employee . . . was acting in the discharge ofhis duties within the scope of his employment or underthe direction of such board of education . . . ." Theinsertion of the additional disjunctive before "withinthe scope of his employment," thereby placing thatphrase between two disjunctives and separating it fromthe "acting in the discharge of his duties" phraseologyserved not only to create another alternative affording10-235 protection, but also arguably broadenedthe scope of employment ground because an employeeno longer had to be "acting in the discharge of hisduties" and "within the scope of his employment.""When changes have been introduced by amendmentit is not to be assumed that they are without design."City of Stamford v. Town of Stamford, 107 Conn. 596,606, 141 A. 891 (1928); Robinson v. UnemploymentSecurity Board of Review, 181 Conn. 1, 21 n. 6,434 A.2d 293(1980); 1A J. Sutherland, supra, 22.30, p. 265.Of course, the presumed change does not go any further

[203 Conn. 336]

     than that which is expressly declared or necessarilyimplied. Robinson v. Unemployment Security Board ofReview, supra; Doe v. Institute of Living, Inc.,175 Conn. 49, 63, 392 A.2d 491 (1978). In any event, thedisjunctive "or" added in 1972 appears to have beenintentionally used with its alternative significance andnot, carelessly, as conjunctive. Harris v. Egan,135 Conn. 102, 105, 60 A.2d 922 (1948). Its use indicates aclear legislative intent of separability. State v. Pascucci,164 Conn. 69, 72, 316 A.2d 750 (1972).

Additional support for our conclusion can be foundin the interpretation of the phrase "within the scope ofemployment" in the context of the workers' compensationstatute. Although the workers' compensation casesare not controlling on the issue before us, they are,nevertheless, instructive for at least two reasons. First,in those cases, statutory coverage does not require thatthe compensable injury result when the employee is actingsolely or only for the benefit of the employer. See,e.g., Dombach v. Olkon Corporation, 163 Conn. 216,302 A.2d 270 (1972); Marks' Dependents v. Grey,251 N.Y. 90, 93-94, 167 N.E. 181 (1929) (Cardozo, J.). Second,unlike 10-235, the workers' compensation statuteprovides that a personal injury is compensable whenit is one "arising out of and in the course of [the employee's]employment . . . ." (Emphasis added.) GeneralStatutes 31-284 (a).13 The terms "arising out of" and"in the course of" set out a "two-part test" and each

[203 Conn. 337]

     must be demonstrated by the claimant. McNamara v.Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979);see Morin v. Lemieux, 179 Conn. 501, 427 A.2d 397(1980). As we have noted, 10-235 sets forth three disjunctivecircumstances where attorney's fees may berecoverable, i.e., "in the discharge of [the employee's]duties or within the scope of employment or under thedirection of [the] board of education . . . ." (Emphasisadded.) While we have no doubt that "within thescope of his employment" means that the legal injurymust be incurred by an employee of a board of educationand that the legal injury must be causally connectedto that employment; see Phipps v. Niejadlik, 175 Conn. 424,399 A.2d 1256 (1978); the three disjunctive basesset out in 10-235, fairly read, indicate a standard notquite as strict as that for workers' compensation under31-284 (a).

The board argues that the trial court erred in its"exclusive reliance on the `course of employment' standardunder the workers' compensation statute" whenit more appropriately should have considered "the purposeof 10-235 to protect employees when acting intheir employee capacities. It also maintains that "[n]otwithstandingthe fact that King was [s]uperintendentof [s]chools when he signed the severance agreement,he could not have been acting as [s]uperintendent, butas an individual severing his employment relationshipwith [the board] on terms which were in the agreementonly to satisfy [his] personal financial demands." Withoutany such finding by the trial court and without anyrequest for further articulation, the board asserts thatit is admitted that no agreement would have been concludedin the absence of these financial terms. We note,

[203 Conn. 338]

     to the contrary, that the testimony of King at theremand hearing would have supported a finding, if onehad been made, that a satisfactory financial arrangementfor him was not the sole reason for his signingthe agreement.14

The board's argument that King was acting individuallyand not as superintendent when he signed theNovember 5, 1980 agreement lacks merit. It is true thatthe word "superintendent" does not appear along withhis signature on this agreement. But it is also true thatthat very agreement plainly sets out that the board had"voted to renew the contract of [King] as [s]uperintendentof [s]chools in Watertown for the academicyear 1981-1982 . . ." and his signing that agreementrecited the tender of "his resignation of [his] employmentwith the Board . . ." and the board's acceptanceof that resignation. It is patently unrealistic to arguethat the board was dealing with King as an individualwhen we consider the "tumultuous events facing the

[203 Conn. 339]

     town with the town "[facing] a true crisis of unprecedentedproportions" that brought both the full boardand King to enter the agreement of November 5, 1980.When King signed the agreement, he had valuablecontractual rights that he was not required to waive. Theserights included the remainder of his term under hisoriginal contract, as well as a new one year term assuperintendent for 1981-1982. Moreover, the executionof this agreement was not, as the board argues,on terms "which were in the agreement only to satisfyKing's personal financial demands." What we havealready set out and the agreement itself discloses is thatthe board, and indeed the town of Watertown, alsobenefited by the agreement.15

The causal connection of the agreement to King's statusas an employee of the board is obvious. There isno finding that King's motivations in signing the agreementwith the board were solely personal; the executedagreement involved benefits to both the board and Kingand it also involved concessions by both parties. Thebest interests of the educational system of the town ofWatertown and of the town itself in successfully negotiatingfor the termination of the employer-employeerelationship constituted strong links in forging the necessarycausal connection in what both parties perceivedas a mutual agreement terminating that relationship.

In the town council action, King was not an adversaryof the board, but a codefendant and, significantly,not a nominal defendant. Under all the circumstances,the town council action has to be viewed as an attempt

[203 Conn. 340]

     to enjoin the implementation of an agreement betweenthe board and King entered into while King wasemployed by the board and which the parties, both representedby counsel, negotiated concerning one basicmatter - the continuation of the employer-employeerelationship. The town council did not prevail and thereis no appeal pending in that case. Basically, concernedas the town council was with King's continuing statusas superintendent of schools, the November 5, 1980agreement was effected when King was a boardemployee and was causally connected with his statusas an employee. Because the agreement was significantlyconnected with his employment, the challengedactivity was "within the scope of [King's] employment"as required by 10235.16

Our conclusion accords with the purpose of 10-235.In 1972, the statute was amended to include the "orany other acts" language. In addressing this expansivelanguage, proceedings on the Senate floor indicatedthat this amendment "would include acts which are notwanton, reckless or malicious and would cover morethan just accident or negligence [sic] type of action

[203 Conn. 341]

     brought against them." 15 S. Proc., Pt. 5, 1972 Sess.,p. 2280, remarks of Senator James J. Murphy, Jr. Wetherefore disagree with the board's argument thatKing's conduct, vis-a-vis his execution of the November5, 1980 agreement, was not within the scope of hisemployment and not an act that 10-235 intended toencompass.

The board also claims that the trial court erroneouslyawarded King statutory interest under General Statutes37-3a.17 The allowance of interest as an elementof damages is primarily an equitable determinationwithin the discretion of the trial court. Bertozzi v.McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973).On this record, we see no reasonable ground uponwhich to find an abuse of the trial court's discretion.18

There is no error.

In this opinion the other justices concurred.

1. General Statutes 10-235 provides in relevant part:"(a) Each board of education shall protect and save harmlessany member of such board or any teacher or other employeethereof or any member of its supervisory or administrativestaff, and the state board of education, the board of governorsof higher education, the board of trustees of each stateinstitution and each state agency which employs any teacher,and the managing board of any public school, as defined insection 10-183b, shall protect and save harmless any memberof such boards, or any teacher or other employee thereof orany member of its supervisory or administrative stuff employedby it, from financial loss and expense, including legalfees and costs, if any, arising out of any claim, demand,suit or judgment by reason of alleged negligence or otheract resulting in accidental bodily injury to or death ofany person, or in accidental damage to or destruction ofproperty, within or without the person, or in accidentaldamage to or destruction of property, within or withoutthe school building, or any other acts, including but notlimited to infringement of any person's civil rights, resultingin any injury, which acts are not wanton, reckless or malicious,provided such teacher, member or employee, at the time ofthe acts resulting in such injury, damage or destruction,was acting in the discharge of his or her duties or withinthe scope of employment or under the direction of such boardof education . . . ."

2. The trial court in the present appeal, Gill, J.,took judicial notice of this case. This court can and alsohas taken judicial notice of this case. See, e.g., State v.Davis, 192 Conn. 739, 744 n. 2, 474 A.2d 776 (1984); Brockettv. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966). The town council action was instituted against the Watertownboard of education only.

3. The board does not question that King, as superintendentof schools, qualified as an employee within the reach ofGeneral Statutes 10-235. In King v. Board of Education,195 Conn. 90, 97, 486 A.2d 1111 (1985), we determined that thelegislature "intended to make indemnification available toa board of education employee for losses sustained from . . .suits for . . . injunctive relief . . . ."

4. We disagree, for two reasons, with the board'scontention that the evidence of the factual circumstancesprevailing in Watertown to which the trial court referredand upon which it relied is immaterial to the issue presentedunder General Statutes 10-235. First, the determination as towhat is within the scope of employment is initially a fact-bounddetermination. Second, we must take note of this evidencebecause the board charges that in deciding the issue thetrial court below ignored certain evidence.

5. Judge Hull found that two of these "guidelines"or "expenditure rules" were violated by one paragraph ofthe November 5, 1980 agreement between the board and King.He also found that there were "sufficient uncommitted fundswithin the Board's interim budget . . . to fund the agreement."

6. Peter Adomeit was one of five mediators used byShedd on a contract basis. He presently teaches law at WesternNew England College School of Law and formerly taught at theUniversity of Connecticut School of Law.

7. The members of the board knew that under King'scontract, they could, on six months notice, that is, beforeDecember 31, 1980, discharge King with no payment.

8. The board in its brief concerning the motivationand reasons for singing the November 5, 1980 agreement,argues that the trial court, Gill, J., ignored certaintestimony of King. This argument is rejected for severalreasons. First, the trial court's memorandum of decisionexplicitly recognizes that the board was claiming that, insigning the November 5, 1980 agreement, King acted "solelyin an individual capacity and for individual reasons and,therefore, falls outside the parameters of General StatutesSection 10-235." Second, a fair reading of the transcriptof King's testimony discloses that the evidence on hismotivations and reasons for signing the agreement requiredan evaluation by the trier of the extent to which his signingwas based on personal interests and the best interests of theschool system. Third, although the trial court's memorandumindicates that it made very few findings of fact, the courtfile discloses that the board did not seek an articulationof that decision. Practice Book 4051 (formerly 3082). Fourth,given the presumption that judicial acts and duties havebeen duly and regularly performed, there is nothing beforeus to demonstrate that the trial court ignored the evidenceinvolved. See Brookfield v. Candlewood Shores Estates Inc.,201 Conn. 1, 6, 513 A.2d 1218 (1986).

9. The legislative history of General Statutes 10-235is reviewed in some detail in King v. Board of Education,195 Conn. 90, 95-96, 486 A.2d 1111 (1985).

10. Certainly it does not appear reasonable thatthe phrase "in the discharge of his duties" of General Statutes10-235 is applicable. There is no argument, under the circumstancesof this case, that the plaintiff had a duty to resign assuperintendent of schools.

11. Public Acts 1972, No. 201, 1, provides in relevantpart: "Section 10-235 of the 1971 supplement to the generalstatutes is repealed and the following is substituted inlieu thereof: Each board of education shall protect and saveharmless any member of such board or any teacher or otheremployee thereof or any member of its supervisory or administrativestaff, and the state board of education, the commission forhigher education, the board of trustees of each state institutionand each state agency which employs any teacher, and the managingboard of any public school, as defined in section 10-161,shall protect and save harmless any member of such boardor commission, or any teacher or other employee thereof orany member of its supervisory or administrative staff employedby it, from financial loss and expense, including legal feesand costs, if any, arising out of any claim, demand, suit orjudgment by reason of alleged negligence or other act resultingin accidental bodily injury to or death of any person, or inaccidental damage to or destruction of property, within orwithout the school building, OR ANY OTHER ACTS RESULTINGIN ANY INJURY, WHICH ACTS ARE NOT WANTON, RECKLESS OR MALICIOUS,provided such teacher, member or employee, at the time ofthe [accident] ACTS resulting in such injury, damage ordestruction, was acting in the discharge of his duties ORwithin the scope of his employment or under the directionof such board of education, the commission for higher education,board of trustees, state agency, department or managing board."

12. Public Acts 1973, No. 73-651, 1, provides inpart: "(a) Each board of education shall protect and saveharmless any member of such board or any teacher or otheremployee thereof or any member of its supervisory or administrativestaff, and the state board of education, the commission forhigher education, the board of trustees of each state institutionand each state agency which employs any teacher, and themanaging board of any public school, as defined in section10-161, shall protect and save harmless any member of suchboard or commission, or any teacher or other employeethereof or any member of its supervisory or administrativestaff employed by it, from financial loss and expense,including legal fees and costs, if any, arising out of anyclaim, demand, suit or judgment by reason of allegednegligence or other act resulting in accidental bodily injuryto or death of any person, or in accidental damage to ordestruction of property, within or without the school building,or any other acts, INCLUDING BUT NOT LIMITED TO INFRINGEMENTOF ANY PERSON'S CIVIL RIGHTS, resulting in any injury, whichacts are not wanton, reckless or malicious, provided suchteacher, member or employee, at the time of the acts resultingin such injury, damage or destruction, was acting in thedischarge of his duties or within the scope of his employmentor under the direction of such board of education, the commissionfor higher education, board of trustees, state agency, departmentor managing board."

13. General Statutes 31-284 (a) provides: "An employershall not be liable to any action for damages on account ofpersonal injury sustained by an employee arising out of andin the course of his employment or on account of death resultingfrom personal injury so sustained, but an employer shall securecompensation for his employees as follows, except that compensationshall not be paid when the personal injury has been causedby the wilful and serious misconduct of the injured employeeor by his intoxication. All rights and claims between employerand employees, or any representatives or dependents of suchemployees, arising out of personal injury or death sustainedin the course of employment as aforesaid are abolished otherthan rights and claims given by this chapter, provided nothingherein shall prohibit any employee from securing, by agreementwith his employer, additional benefits from his employerfor such injury or from enforcing such agreement for additionalbenefits."

14. During the cross-examination of King at theremand hearing, the following took place: "Q. Now, you testified in your direct that at sometime,I believe, during October of 1980 you reached a determinationthat the recommendation of Mr. Adomeit that you resign assuperintendent was not something that you were willing toconsider, is that - was something that you were willing toconsider, is that correct? "A. I was willing to consider it on the basis that I feltthat it would be in the best interest of the school systemand my family, yes. * * * "Q. Is it fair to say, Mr. King, that you were willingto accept the idea of resignation only if the terms wereright from a financial standpoint, is that correct? "A. No, that is not correct. That was not the only [criteria]for my considering submitting the resignation. "Q. That wasn't my question. My question is, would youhave resigned if the financial terms of the agreement didnot satisfy the criteria that you just referred to? "A. I would have to say the answer to that is no. "Q. Would not have resigned? "A. Would not have resigned."

15. Although the trial court in the prior actionultimately concluded that the agreement had been legallyentered into, the memorandum of decision in that actiondiscloses the following: `The court concludes that theexpenditure rules adopted by the Council are beyond itsauthority and illegal insofar as they apply to the educationalbudget. . . . The November 5th agreement was legal and notlegally in violation of the Town Council's interim budgetrules since those rules were illegal and beyond the Council'sauthority. . . ."

16. The board's reliance on Kearney v. Board ofEducation, Superior Court, judicial district of Hartford-NewBritain at Hartford, Docket No. 224794 (December 19, 1979),is misplaced. Initially, Kearney and the case before us arecompletely different factually. In Kearney, the plaintiff soughtindemnification for his legal expenses under General Statutes10-235 after he had successfully defended an action broughtagainst him by the board of education seeking his terminationfor his disciplining of a student. In the present appeal, theboard and King were codefendants and not adversaries, as inKearney. In addition, the Kearney court states that the"question posed by the facts of this case is whether thepaying of expenses or loss is intended by the statute tocover those paid by the teacher [Kearney] to defend himselfagainst the Board's charges (whether he or it initiates theprocess) as opposed to a third person's charges." It is thusapparent that Kearney, fairly read, at least seems to recognizethat 10-235 can apply when a covered employee incurs suchexpenses in defending against an action instituted by a thirdparty, which is the posture of the case before us. Itspersuasiveness on the issue on the present appeal is, therefore,attenuated by its dissimilarities to the present matter.

17. General Statutes 37-3a provides: "RATERECOVERABLE AS DAMAGES. Except as provided in sections37-3b and 52-192a, interest at the rate of ten per centa year, and no more, may be recovered and allowed in civilactions or arbitration proceedings under chapter 909, includingactions to recover money loaned at a greater rate, as damagesfor the detention of money after it becomes payable exceptas otherwise provided with respect to demand obligations insection 42a-3-122 (4)(a). Judgment may be given for therecovery of taxes assessed and paid upon the loan, and theinsurance upon the estate mortgaged to secure the loan,whenever the borrower has agreed in writing to pay suchtaxes or insurance or both. Whenever the maker of any contractis a resident of another state or the mortgage security islocated in another state, any obligee or holder of suchcontract, residing in this state, may lawfully recover anyagreed rate of interest or damages on such contract untilit is fully performed, not exceeding the legal rate of interestin the state where such contract purports to have been madeor such mortgage security is located."

18. The trial court, Gill, J., refused to award Kingpunitive damages. In its brief, the board argues that thetrial

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