Todd Gagliardi v. State of Connecticut, Department of Children and Families (2013)

MEMORANDUM OF DECISION

This is an administrative appeal brought by the plaintiff, Todd Gagliardi, challenging a decision by the Department of Children and Families (“DCF”) to place his name on DCF's Abuse and Neglect Registry.   See C.G.S. § 17a–101k(a) (“The Commissioner of Children and Families shall maintain a registry of the commissioner's findings of abuse or neglect of children”).   The issue in this appeal is whether the hearing officer improperly admitted into evidence a transcript of various text messages of a sexual nature sent between the plaintiff, a schoolteacher, and a student at the plaintiff's school.   Because the court concludes that the text messages were properly authenticated under the relaxed evidentiary standard for administrative hearings, the transcript was properly admitted at the administrative hearing.

I. FACTUAL AND PROCEDURAL HISTORY

The record discloses the following facts.   In May 2012, GM was a sixteen-year-old junior at Branford High School.   The plaintiff, Todd Gagliardi, was a teacher at Branford High School, and had been GM's Spanish teacher during her freshman year.   Between May 26 and May 31, 2012, the plaintiff exchanged text messages of an increasingly sexual nature with GM. The text messages include graphic descriptions of various sexual acts that GM and the plaintiff wanted to perform on each other and of sexual activities that they had engaged in with others.   The plaintiff and GM did not have any physical contact during this weeklong period.

GM's mother “periodically pulls” her daughter's cell phone records.   On May 31, 2012, GM's mother obtained her text message history from her cell phone provider and discovered the texts between GM and plaintiff.   GM's mother reported the texts to the school and provided copies of the transcribed messages to the Branford Police Department.   The police then provided a copy of the transcript to DCF Investigator Ingram.   GM admitted sending text messages to the plaintiff.   DCF and the Branford Police Department completed a joint investigation, but criminal charges against the plaintiff were not filed because GM's mother did not want to press charges, no physical contact had occurred, and the plaintiff had resigned from his teaching position.

In July 2012, the plaintiff received notice that the DCF had completed its investigation and had substantiated the allegations against him.   The notice further informed the plaintiff that DCF deemed him a risk to the safety of children, and recommended that his name be placed on the Child Abuse and Neglect Central Registry.   The plaintiff requested additional review of the findings in accordance with General Statutes § 17a–101k(b)–(c).¹

On August 27, 2012, DCF notified the plaintiff that it had conducted an internal review and had chosen to uphold its findings.   At the plaintiff's request, DCF then held a substantiation hearing on November 29, 2012.   Although he was represented by counsel at the hearing, the plaintiff decided not to personally attend.   At the hearing, a transcript of text messages that were sent by the plaintiff and GM to each other was admitted into evidence.   The hearing officer, by relying on the content of the text messages themselves and other evidence in the record, concluded that the text messages were sufficiently authenticated and admitted them into evidence.

DCF issued a final written decision on January 18, 2013, upholding the substantiation of sexual abuse and the plaintiff's placement on the Central Registry.   The DCF adjudicator's decision was based primarily on the sexual content of the text messages, which were furnished by GM's mother, who obtained them from her phone company.   The adjudicator reasoned that “[t]he content of the text messages between the [plaintiff] and [GM] supports the Department's finding that the [plaintiff] sexually exploited her through grooming behavior designed to result in more intimate sexual conduct.”   The plaintiff appealed the final decision of the agency to this Court pursuant to General Statutes § 4–183.

II. ANALYSIS

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of ․ fact and whether the conclusions drawn from those facts are reasonable ․ Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.”   Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 676, 757 A.2d 1, 11 (2000) (citations and internal quotation marks omitted).

“The erroneous admission of evidence will not invalidate an administrative order unless substantial prejudice is affirmatively shown ․ The burden is on the plaintiff to prove that the evidentiary ruling of an administrative hearing officer is arbitrary, illegal[,] or an abuse of discretion.”  Griffin v. Muzio, 10 Conn.App. 90, 94, 521 A.2d 607, 609 (1987), cert denied, 203 Conn. 805 (1987).

The plaintiff contends that the hearing officer abused her discretion by improperly admitting the transcript of the text messages.   Specifically, he claims that the text messages had not been properly authenticated as having been sent by him to GM. The court disagrees.

At the outset, it is important to note what is not at issue in this appeal.   First, the plaintiff does not contend that the text messages sent by GM came from some phone other than the phone used by GM. Pl.'s Br. at 5. Second, the plaintiff concedes that the text messages responding to GM's messages purport to be from him.   Instead, he claims that they were sent by someone pretending to be him.   Third, the court need not decide whether the text messages would have been properly authenticated pursuant to the Code of Evidence if the proceeding was conducted in Superior Court.

The precise issue in this case is whether the text messages were properly authenticated as having been sent by the plaintiff.   Plaintiff argues that they were improperly authenticated because the evidence used to authenticate them was based on unreliable hearsay contained within the text messages themselves.²  In support of this claim, the plaintiff emphasizes that no evidence was admitted to establish that he has a cell phone account with the phone number appearing in the text messages.

The evidentiary standards for authentication of evidence are well-established, at least with respect to cases in which the Code of Evidence typically applies.  “The requirement of authentication as a condition precedent to admissibility is satisfied by evidence to support a finding that the offered evidence is what its proponent claims to be.”  Code of Evidence § 9–1.   Authentication is a question of fact “preliminary to admissibility of evidence.”  Code of Evidence § 1–1(d)(2).  “[C]ourts are not bound by the Code in determining preliminary questions of fact.”  Code of Evidence § 1–3(a), commentary.   In other words, “[i]n making such determinations, the judge is not bound by the rules of evidence ․ and may hear any relevant evidence, including reliable hearsay.”   Tait & Prescott, TAIT'S HANDBOOK OF CONNECTICUT EVIDENCE (4th Ed.) § 1.25.2, at p. 67.

It is not necessary, however, for this court to decide whether the text messages would have been properly authenticated under the Code of Evidence.   “[A]dministrative tribunals are not strictly bound by the rules of evidence ․ they may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.”  (Internal quotation marks omitted.)  O'Sullivan v. DelPonte, 27 Conn.App. 377, 381–82, 606 A.2d 43 (1992) “In contested cases [before administrative agencies]:  (1) any oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence ․” General Statutes § 4–178.

Thus, both courts ³ and administrative tribunals may consider hearsay in determining the preliminary question of authentication.   But evidence in administrative proceedings does not have to be authenticated to the same standard as in court proceedings to which the Code of Evidence applies.   As long as the evidence is reliable, probative, material, and not unduly repetitious, it may be admitted.  O'Sullivan, supra, 27 Conn.App. 382;  General Statutes § 4–178.

The plaintiff acknowledges this lenient standard, but still contends that “the hearsay contained in the excerpted hard copies of [the] text messages” is “not sufficiently trustworthy” to authenticate the text messages as being sent by the plaintiff.   He argues that the hearsay contained in the text messages is especially untrustworthy because it is “multi-layered.”   He points out that “[t]he identity of the plaintiff was established entirely by inferences contained from the running snippets of dialogue in [the transcript of the messages], which was a printout of a portion of [GM's] cell records, obtained by her parents, then given to the police, and then forwarded to [Investigator] Ingram.”

The plaintiff is correct that the text messages were authenticated primarily on the basis of their content.   The court is not persuaded, however, for the following reasons that the content of text messages was so untrustworthy or unreliable that the admission of the text messages by the hearing officer was “arbitrary, illegal[,] or an abuse of discretion.”  Griffin v. Muzio, 10 Conn.App. 90, 94, 521 A.2d 607, 609 (1987), cert denied, 203 Conn. 805 (1987).

First, the transferal of the text messages from the phone company to GM's parents to the police to the DCF Investigator does not render the content of the text messages untrustworthy.   Evidence of an appropriate chain of custody over the transcript was established through the investigator's testimony.   If this were a situation in which the victim spoke to her parents about inappropriate communications from her teacher, and the parents then repeated the conversation to the police, who then repeated the conversation to the investigator, who then testified at the hearing, the plaintiff's argument regarding multiple layers of hearsay might be persuasive.   The plaintiff, however, has not specifically argued how the repeated handover of a printed record of text messages renders the content of that printout untrustworthy.   The plaintiff has not claimed that any of these parties altered or edited the texts, or that any of them would have a motive to do so.

Second, the hearing officer concluded that there was no evidence to suggest that GM had any reason to fabricate her allegations against her teacher.   GM admitted to the secret relationship with the plaintiff only after her mother found the text messages while checking her account.   Her reports to investigators were consistent, and, as the hearing officer found, “[t]here was no evidence presented to suggest that Gabriella's mental state was impaired or in any way affected the reliability of her reports regarding the text messaging.”

Third, the content of the text messages is sufficient to authenticate the plaintiff as the sender.  “Authentication is a necessary preliminary to the introduction of most writings in evidence.   In general, a writing must be authenticated by a number of methods, including direct testimony or circumstantial evidence.  [T]he showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege.   Rather, there need only be a prima facie showing of authenticity to the court.   Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the [finder of fact], which will ultimately determine its authenticity.”   (Internal quotation marks omitted.)  State v. Colon, 272 Conn. 106, 188–89, 864 A.2d 666, 723 (2004).  “An electronic document may ․ be authenticated by traditional means such as ․ circumstantial evidence of ‘distinctive characteristics' in the document that identify the author.”  State v. Eleck, 130 Conn.App. 623, 640, 23 A.3d 818, 823, cert. granted, 302 Conn. 945 (2011).

The text messages in this case contain “distinctive characteristics” sufficient to authenticate the identity of the sender under the relaxed evidentiary standards of administrative hearings.   The sender identifies himself as the Spanish teacher at GM's school.   The messages contain a mix of flirting and repeated warnings about the need for secrecy—exactly what one would expect from a teacher attempting to establish a sexual relationship with a student.   Many of the text messages focused on clothes that both the plaintiff and GM wore to school at the same time.

The plaintiff argues that (1) someone pretending to be Mr. Gagliardi sent the text messages, (2) no evidence was admitted that he had a cell phone account with the phone number as it appears in the text messages, and (3) there was no corroborating evidence of an inappropriate relationship with GM. Although these facts certainly may be relevant to a determination of authenticity, “[t]he proponent need not rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.”   U.S. v. Gagliardi, 506 F.3d 140, 151 (2nd Cir.2007).   Moreover, the plaintiff offered no evidence supporting his claim that some imposter sent the text messages to GM or that the cell phone number on the records belonged to someone else.   Thus, any of the plaintiff's bald assertions about the records were properly considered in terms of the weight to be given the transcript of the text messages, not their admissibility.

The plaintiff concedes that if the text messages were properly admitted, then DCF had substantial evidence to find that he sexually exploited a minor and that he poses a risk to children.   Thus, because the adjudicator did not abuse her discretion in admitting the evidence, the DCF's decision must be affirmed.

III. CONCLUSION

For the reasons set forth above, the hearing officer did not abuse her discretion by admitting the text messages as evidence at the substantiation hearing.   Accordingly, the decision of the agency is affirmed.   Judgment shall enter accordingly.

Hon. Eliot D. Prescott

FOOTNOTES

FN1. General Statutes § 17a–101k(b) provides in relevant part:  “Upon the issuance of a recommended finding that an individual is responsible for abuse or neglect of a child ․ the commissioner shall provide notice of the finding ․ to the individual who is alleged to be responsible for the abuse or neglect.   The notice shall ․ [i]nform the individual of the individual's right to administrative procedures as provided in this section to appeal the finding ․ and [i]nclude a written form for the individual to sign and return, indicating if the individual will invoke the appeal procedures provided in this section.”General Statutes § 17a–101k(c)(1) provides in relevant part:  “Following a request for appeal, the commissioner or the commissioner's designee shall conduct an internal review of the recommended finding to be completed no later than thirty days after the request for appeal is received by the department.   The commissioner or the commissioner's designee shall review all relevant information relating to the recommended finding, to determine whether the recommended finding is factually or legally deficient and ought to be reversed.”.  FN1. General Statutes § 17a–101k(b) provides in relevant part:  “Upon the issuance of a recommended finding that an individual is responsible for abuse or neglect of a child ․ the commissioner shall provide notice of the finding ․ to the individual who is alleged to be responsible for the abuse or neglect.   The notice shall ․ [i]nform the individual of the individual's right to administrative procedures as provided in this section to appeal the finding ․ and [i]nclude a written form for the individual to sign and return, indicating if the individual will invoke the appeal procedures provided in this section.”General Statutes § 17a–101k(c)(1) provides in relevant part:  “Following a request for appeal, the commissioner or the commissioner's designee shall conduct an internal review of the recommended finding to be completed no later than thirty days after the request for appeal is received by the department.   The commissioner or the commissioner's designee shall review all relevant information relating to the recommended finding, to determine whether the recommended finding is factually or legally deficient and ought to be reversed.”

FN2. At oral argument, the plaintiff conceded that his challenge to the hearsay nature of the text messages is simply a subsidiary claim to his assertion that the text messages were not properly authenticated.   In other words, if the text messages were properly authenticated, his claim regarding that they contain unreliable hearsay also fails..  FN2. At oral argument, the plaintiff conceded that his challenge to the hearsay nature of the text messages is simply a subsidiary claim to his assertion that the text messages were not properly authenticated.   In other words, if the text messages were properly authenticated, his claim regarding that they contain unreliable hearsay also fails.

FN3. But see Federal Deposit of Insurance Co. v. Keating, 44 Conn.App. 536, 558–59, 690 A.2d (1997);  Central Bank v. Colonial Romanelli Associates, 38 Conn.App. 575, 579–80, 662 A.2d 157 (1995).   These cases are unclear, however, whether the evidence should have been excluded because hearsay was used to authenticate the documents or whether the best evidence rule was applicable.   The better rule is that reliable hearsay may be used to authenticate evidence because authentication is a preliminary issue of fact for the court to decide within the meaning of Code of Evidence §§ 1–1 and 1–3..  FN3. But see Federal Deposit of Insurance Co. v. Keating, 44 Conn.App. 536, 558–59, 690 A.2d (1997);  Central Bank v. Colonial Romanelli Associates, 38 Conn.App. 575, 579–80, 662 A.2d 157 (1995).   These cases are unclear, however, whether the evidence should have been excluded because hearsay was used to authenticate the documents or whether the best evidence rule was applicable.   The better rule is that reliable hearsay may be used to authenticate evidence because authentication is a preliminary issue of fact for the court to decide within the meaning of Code of Evidence §§ 1–1 and 1–3.

Prescott, Eliot D., J.