Summary
In Downey, the Appellate Court posited two reasons for arriving at its conclusion that the plaintiff would be entitled to receive additional compensation in excess of his service pension.
Summary of this case from O'Connor v. City of WaterburyOpinion
(AC 20614)
The plaintiff, a disabled former firefighter, appealed to the trial court from the decision by the defendant retirement board denying his request for a recalculation and increase of his disability pension. He claimed, inter alia, that the board failed to credit him with certain imputed years of service that resulted from a decision by the commission on human rights and opportunities finding that the defendants had discriminated against him following a period of disability and ordering his reinstatement with full benefits and vested retirement credits retroactive to the date of the discriminatory act. The trial court rendered judgment dismissing the appeal, from which the plaintiff appealed to this court. Held:
1. The trial court improperly upheld the board's decision; the board, in ignoring a clear directive by the commission to credit the plaintiff for the years in which the board had discriminated against him, abused its discretion.
2. The trial court improperly found that the pension awarded to the plaintiff was equitable when it did not include any award for his job related injuries and resulting disabilities; the board abused its discretion in ignoring the plaintiff's medical reports, physical condition and disability when determining his pension award.
Argued April 4, 2001
Officially released October 9, 2001
Appeal by the plaintiff from the decision by the named defendant denying the plaintiff's application for a modification and increase of his disability retirement benefits, brought to the Superior Court in the judicial district of Waterbury and tried to the court, Caruso, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. Reversed; further proceedings.
Linda S. Tableman, for the appellant (plaintiff).
Paula N. Anthony, for the appellees (defendants).
Opinion
The plaintiff, Morton J. Downey, Sr., appeals from the judgment rendered by the trial court in favor of the defendants denying the plaintiff's request for a recalculation and increase of his disability pension. The plaintiff contends that the court improperly found that the disability pension was equitable. We agree and reverse the judgment of the trial court.
The defendants are the retirement board of the city of Waterbury and its individual members, Chairman Pasquale A. Mangini, Alderman Nicholas Augelli, Commissioner David Bozzuto, Commissioner Genevieve Cavallerano and Commissioner Joseph Cronin.
The following are the relevant facts and procedural history. The plaintiff began working for the Waterbury fire department in September, 1953. In July, 1982, the plaintiff applied for a voluntary disability pension on the basis of the medical diagnosis that he was suffering from heart disease. On September 29, 1982, the defendant Waterbury retirement board (board) granted the plaintiff's application, awarding him a 76 percent disability pension. The plaintiff received workers' compensation benefits until January, 1988, for a 35 percent permanent partial disability of the heart.
In 1987, a physical examination revealed that the plaintiff did not have heart disease and that he was able to return to work. Thereafter, in March, 1987, the plaintiff applied to the board to be reinstated as a firefighter for the Waterbury fire department and to be removed from the disability pension roll. The board refused to reinstate the plaintiff, and the plaintiff brought an action in the Superior Court. After a trial, the court ordered that the plaintiff be reinstated. The board failed to reinstate the plaintiff, and the matter ultimately came before the commission on human rights and opportunities (commission). The commission determined that the defendants' refusal to reinstate the plaintiff was illegal discrimination. In addition, the commission ordered the defendants to reinstate the plaintiff with full benefits and vested pension credits retroactive to April 11, 1988, and to pay him damages, back pay and attorney's fees.
See also Downey v. Retirement Board, 22 Conn. App. 172, 174-75, 576 A.2d 582, cert. denied, 216 Conn. 812, 580 A.2d 65 (1990).
The fire department reinstated the plaintiff on February 17, 1993. In April, 1995, the plaintiff applied for disability retirement, citing injuries from a January, 1977 fire engine accident. Subsequently, on May 12, 1995, the plaintiff injured his back and knees while fighting a house fire. On June 14, 1995, the board announced that the plaintiff would receive a disability pension based on 62 percent of his salary. The board arrived at this figure using thirty-one years of service as one of the factors to determine the plaintiff's disability pension award. In November, 1996, the plaintiff filed an application with the board to review and increase the amount of his disability pension award in light of the commission's order to give the plaintiff credit for the nearly five years of vested pension credit that he would have received if he had been reinstated on April 11, 1988. The board denied the plaintiff's application, and the plaintiff appealed to the Superior Court.
At trial, the plaintiff submitted evidence that the board was presented with evidence of his years of service, medical reports by the board's impartial medical examiners and the applicable collective bargaining agreements. The plaintiff also presented the court with evidence that the board credited him with only thirty-one years of service in contravention of the commission's order. Nevertheless, the court found that the board's refusal to reinstate the five years of pension credit was not unreasonable, arbitrary, illegal or an abuse of its discretion and it dismissed the appeal. This appeal followed. Additional facts will be provided as necessary.
The trial court concluded: "The court has reviewed the return of record . . . briefs, testimony and arguments of counsel and finds that the board did not act unreasonably, arbitrarily, illegally or in abuse of its discretion.
"At its meeting of June 14, 1995, the board had before it all relevant information to determine an equitable disability pension for the plaintiff. Thereafter, the board allowed the plaintiff and his counsel at several meetings to provide the board with additional information claiming other proceedings between the board and the plaintiff [were] relevant and material to support a higher pension. The board reviewed the material and concluded that [its] original decision was equitable.
"Since the plaintiff requested a disability pension, that is what the board considered. His claim for a higher pension based upon years of service and additional injuries is of no avail."
I
The plaintiff first claims that the court improperly found that the disability pension awarded to him was equitable when the board did not credit all of the plaintiff's years of service, including imputed service from April 11, 1988, until his reinstatement on February 17, 1993. We agree with the plaintiff and reverse the judgment of the trial court.
On April 11, 1988, the Superior Court ordered that the plaintiff be reinstated. The plaintiff was not reinstated until February 17, 1993.
The applicable standard of review when a trial court upholds a decision of an administrative agency is well settled. "Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence. . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary." (Citation omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 581, 735 A.2d 231 (1999). "Pursuant to our standard of review, we examine whether the conclusions of law reached by the trial court resulted from a correct application of the law to the facts of this case." Waterbury Teachers Assn. v. Freedom of Information Commission, 42 Conn. App. 700, 705, 682 A.2d 125 (1996), rev'd on other grounds, 240 Conn. 835, 694 A.2d 1241 (1997); see also Alexander v. Retirement Board, 57 Conn. App. 751, 758, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000).
The plaintiff claims on appeal that the board failed to give proper credit for his years served. Section 2724 of the charter of the city of Waterbury provides in relevant part that "[a] pension shall be paid to each officer participant who has been retired under this act for life calculated upon the formula used to calculate pensions for participants of the department of which he was a member. . . ." The union contract between the city of Waterbury and its firefighters union, Article XXXIII, section 9, sets forth that a firefighter's pension shall be calculated using 2 percent for each year of service. The record shows that the factors that the board took into account when it arrived at the amount of pension to award were the plaintiff's years of service, his medical records and the applicable collective bargaining agreements. It failed, however, to credit fully the plaintiff's years of service. Because the board ignored a clear directive from the commission to credit the plaintiff for the years in which it illegally discriminated against him, the board abused its discretion. Thus, we conclude that the trial court should not have upheld the board's decision to reduce years of service based on the plaintiff's disability because the commission specifically ordered the board to credit the plaintiff with the years of service from 1988 to 1993.
Article XXXIII, § 9, of the union contract also provides: "Effective July 1, 1986, the amount of pension, or pension entitlement, in terms of the amount of pension dollars shall be the product of (A) (that is, the percentage factor), multiplied by (B) (that is, the annual pay factor). In this formula, (A) equals the percentage which is determined by multiplying the number of years of service by two percent (2%) for each year of service and (B) is the annual pay which shall be computed on the basis of the employee's weekly base salary, prescribed in Article XXVI hereof, (which is in effect as of the date that the employee filed the said application for service retirement), multiplied by fifty-two (52) weeks plus the appropriate longevity amount as prescribed in Article XXI hereof, to which the said employee is entitled as of the date of the filing of his application for retirement, plus twenty-five percent (25%) of the Article XI, Section 5 terminal leave pay, plus, if applicable to a given employee, the Article XXVII, Section 1a, Regular Fire Drivers pay. Also included in (B) shall be the total of any overtime payments prescribed in Article XVIII, plus Article XXIII Holiday payments, plus any Article XXIV Fire Watch Duty payments, during the last twelve (12) consecutive months within the last thirty-six (36) month period prior to the filing of said application for retirement."
In addition, the board's argument that the fire department's union contract requires an annual contribution to be eligible for pension benefits is unavailing. Although the contract does set forth a formula for what percentage of the salary the contribution will be and how it will be collected, it does not state any position on the consequence of not contributing to the plan. The city of Waterbury charter is silent on the issue of contributions to be made to the pension plan when an employee is receiving disability pension and is then reinstated. The record indicates that the city's practice, consistent with that of other state retirement and disability policies, has been not to require contributions during a period of disability but to credit such period for purposes of retirement as though contributions had been made.
Our state legislature also has articulated a policy for awarding credit for the years a state employee is disabled. General Statutes § 5-169 (e) expressly provides that "[r]etirement income being paid for disability retirement shall end when and if the disability ends. In such event, such member shall receive credit for the years he was disabled. . . ." General Statutes § 5-169 (i) provides in relevant part: "If a member qualifies for disability compensation under section 5-142, such member shall continue to be credited with service hereunder, and shall not be deemed to have retired until he elects to retire. . . ." Moreover, in 1985, the legislature specifically deleted a provision that required qualified employees to continue to make employee contributions for years of service credit.
Furthermore, neither the union contract nor the charter makes any provisions for contributions to the pension plan when the employee is receiving disability pay. On September 20, 1995, the board indicated that the reason that it was crediting only the thirty-one years of service was because the plaintiff had not made contributions to the plan from April 11, 1988, to February 17, 1993. On May 29, 1996, the plaintiff indicated that he was willing to make contributions to the plan for the five years in question, and the board refused to consider this offer. This offer, however, was unnecessary because the commission reinstated him with full vested pension rights.