TURN OF RIVER FIRE v. STAMFORD

Full title: TURN OF RIVER FIRE DEPARTMENT, INC. ET AL. v. CITY OF STAMFORD ET AL

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Aug 11, 2009

2009 Ct. Sup. 13434 (Conn. Super. Ct. 2009)

Opinion

No. FST CV 08 4014450 S

August 11, 2009

MEMORANDUM OF DECISION

KEVIN TIERNEY, Judge Trial Referee.

The plaintiff, Turn of River Fire Department, Inc. (TOR), a volunteer fire company located in the Turn of River section of Stamford, Connecticut sued the two defendants, City of Stamford and its Mayor, Dannel F. Malloy, for legal relief for money already budgeted for fire protection services in the Turn of River section of the City of Stamford for the current fiscal year July 1, 2008 through June 30, 2009 and for additional "money sufficient to sustain the company." The plaintiff, Matthew Maounis, sued to prevent diversion of Stamford real estate taxes.

The plaintiffs filed a one-count verified complaint dated May 6, 2008. This is the operative complaint. TOR seeks a declaratory judgment, a writ of mandamus and an injunction; all of these claims seeking essentially the same remedy that: "The defendants must continue to raise and pay over to the Turn of River Fire Department, Inc., tax money sufficient to sustain the company." The plaintiff, Maounis, alleges that he is a resident of the Turn of River section of Stamford, a Stamford taxpayer and a member of TOR, currently serving as its Assistant Chief. Maounis seeks relief in the one-count May 6, 2008 verified complaint of "a declaratory judgment declaring that the defendants cannot divert plaintiff Maounis' fire tax payments from fire protection in the Town area to fire protection in the City area."

The two named defendants are the City of Stamford and its Mayor, Dannel F. Malloy. Both were represented by the Stamford Corporation Counsel. The defendants filed an Answer and eight Special Defenses on July 17, 2008 (#112.00). The Special Defenses are as follows: (1) the plaintiff, Maounis, lacks standing, (2) the plaintiff, TOR, lacks standing as to plaintiff's, Maounis, declaratory judgment claim, (3) under the Stamford Charter the City's "contribution" toward operational costs for TOR is a discretionary amount determined in accordance with the City's regular budgetary procedures, (4) the inadequacy of any appropriation to TOR is a political question and thus the court lacks subject matter jurisdiction, (5) Charter Section C8-30-13 prohibits the City from expending funds in excess of the amounts appropriated, (6) the funds utilized in providing fire and other emergency services do not constitute a diversion of City revenues, (7) providing funds to TOR for the fiscal year starting July 1, 2008 would constitute economic waste, and (8) reasonable notice has not been furnished to those that may be adversely affected by the declaratory relief requested.

The plaintiffs denied to those eight Special Defenses by a January 20, 2009 Reply (#120.00). In the Reply to the Third and Seventh Special Defenses, the plaintiffs "affirmatively aver that the defendants cannot manipulate the budgetary procedure under the Charter for the purpose of forcing TOR out of existence (which is the claim in this matter)." The defendants filed a general denial to these two Matters in Avoidance dated May 12, 2009 (#126.00).

TOR, as the sole plaintiff, filed a lawsuit against the City of Stamford, Dannel F. Malloy, its Mayor, and William S. Callion, Jr., its Director of Public Health, Safety and Welfare, returnable to the Superior Court, judicial district of Stamford on June 21, 2007, Docket Number FST CV 07-4011910 S. Matthew Maounis is not a party in this 2007 lawsuit. The three 2007 defendants are all represented by the Stamford Corporation Counsel. At the commencement of the trial of the instant case, the court consolidated both the 2007 case and this file for trial. P.B. § 9-5(a). Both matters were tried simultaneous with all the evidence, testimony and exhibits applicable to both cases. This Memorandum of Decision is being issued only in the 2008 TOR and Maounis lawsuit. A separate Memorandum of Decision will be issued in 2007 TOR v. City of Stamford, Dannel F. Malloy and William F. Callion, Jr. FST CV 07-4011910 S at a later date.

The court makes the following findings of fact and legal conclusions.

Defendant, City of Stamford, is at all times a municipality organized and existing pursuant to the laws of the State of Connecticut and the defendant, Dannel F. Malloy, is and was at all times relevant the Mayor of the City of Stamford. In 1949 the Stamford Charter consolidated the town and city governments into a single organizational framework, but maintained dual systems of fire protection and emergency rescue systems. Since 1949 those dual fire protection systems have been separately financed. Stamford is composed of two general tax areas known as the town and the city.

The Charter designates the Stamford Fire and Rescue Department (SFRD) as the provider of fire protection and emergency services to those residents and businesses located in the City Tax District. Charter Section C8-40-2. SFRD is an agency or department of the City. SFRD is referred to in the Charter as the "Regular Fire Department." There are five volunteer fire departments commonly known as the "Big Five." The Big Five are the Long Ridge Volunteer Fire Department, the New Hope (Glenbrook) Volunteer Fire Department, the Springdale Volunteer Fire Department, the Belltown Volunteer Fire Department, and the Turn of River Volunteer Fire Department. The Big Five are referred to in the Charter as the "Volunteer Fire Departments." The Turn of River Volunteer Fire Department is incorporated as the plaintiff, Turn of River Fire Department, Inc. (TOR). TOR is a not-for-profit Connecticut corporation. TOR provides fire protection and emergency rescue services in the Turn of River area of Stamford. The Charter provides that these fire services areas must be mapped. Charter section C5-40-3(d). The resulting map is in evidence. Ex. 2. There are ten fire districts established by the map, Ex. 2; five served by SFRD and the other five served by the Big Five. The Turn of River Fire District is the largest of all ten fire districts and composes about one-third of the territory of Stamford. As a result TOR has two fire stations serving the Turn of River fire district.

These two lawsuits are not the first time a volunteer fire department and the City have been engaged in litigation. In 1999 a dispute arose about the financial contributions to be made by the City to TOR. Ex. 90. That 1999 lawsuit was settled and withdrawn upon the execution of a document entitled "Memorandum of Agreement" but commonly referred to as the "Management Agreement." Ex. 3. This Management Agreement was in compliance with Gen. Stat. § 7-301. It appears from the evidence that virtually every one of the Big Five has been involved in court and labor disputes with the City over a variety of issues, including but not limited to the operational budget of the volunteer fire departments and command and control of the paid firefighters who work out of the fire houses in the volunteer fire districts.

Rustici v. Malloy et al., Superior Court, judicial district of Danbury, Docket Number CV 97-0329760 S, transferred to the Complex Litigation Docket in the judicial district of Waterbury, Docket Number X02 CV-97-0164460 S. See also the reported decision by the Appellate Court in Rustici v. Malloy, 60 Conn.App. 47 (2000).

Long Ridge Paid Drivers Association et al. v. James Romanello, Dannel Malloy and City of Stamford et al., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Number X02 CV-97-0163992 S. (UWY-CV-97-0163992 S.)

Stamford Firefighters, Local 786, IAFF v. Shawn Fahan, Springdale Fire Company and the City of Stamford, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 03-0197878 S.

Springdale Fire Co., Inc v. City of Stamford and Dannel Malloy, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 04-0197986 S.

Springdale Fire Company v. City of Stamford, Dannel Malloy and William Callion, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 07-4011767 S.

Turn of River Fire Department v. City of Stamford, Dannel F. Malloy and William S. Callion, Jr., Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number FST CV 07-4011910 S, originally commenced in the Superior Court, judicial district of Fairfield at Bridgeport, Docket Number FBT CV 08-4024760 S and transferred to the judicial district of Stamford/Norwalk of Stamford and consolidated with the instant case for trial.

Belltown Fire Department and New Hope Fire Company, Inc. v. City of Stamford, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 07-4012056 S.

City of Stamford v. Springdale Fire Co., Inc., Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number FST CV 08-4015177 S.

City of Stamford v. Antonio L. Olive, Jr., Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number FST CV 08-4015243 S.

Currently TOR and Matthew Maounis are parties to another lawsuit that is pending in the Superior Court, judicial district of Fairfield of Bridgeport entitled Belltown Fire Department et al. v. City of Stamford, Docket Number FBT CV 08-4024530 S. That Belltown case is being actively litigated by the same counsel representing the instant parties.

One could argue quite coherently, that the Superior Court is being asked to micro-manage the entire personnel and fiscal relationship between the Big Five Volunteer Fire Departments and the City of Stamford, i.e., paid versus volunteers. One Judge found "that the friction which exists between both groups is largely self-induced." This instant lawsuit is merely one of the examples of management issues being presented to the Superior Court for resolution. This court heard evidence of numerous incidents between the volunteers and the paid firefighters that gave new dimension to the word "petty."

"A municipal corporation like the defendant city has only the powers which are expressly conferred upon it by the general statutes or by some special act of the General Assembly and those which are fairly to be implied as necessary to carry into effect the powers expressly given." Old Colony Gardens, Inc. v. City of Stamford, 147 Conn. 60, 62 (1959). The City of Stamford has no general provisions other than that which are assigned to it by the legislature. Fennell v. Hartford, 238 Conn. 809, 813 (1996). "The town charter, whether adopted by special act of the General Assembly, or as in this case, under the Home Rule Act: General Statutes § 7-188; constitutes the organic law of the municipality." West Hartford Taxpayers Association, Inc. v. Streeter, 190 Conn. 736, 742 (1983).

The City has been granted by statute the permission to fund fire service protection to fire departments including volunteer fire companies within the city. "Nothing in this section shall prevent any town, city, borough or incorporated fire district from appropriating funds to a volunteer fire company or companies, for services rendered or to be rendered within the confines of such town, city, borough or district by such fire company or companies provided such town, city, borough or incorporated fire district shall deem it is in the public interest to do so." Gen. Stat. § 7-301. Stamford has the statutory authority to establish and maintain a budget system. Gen. Stat. § 7-148(c)(2).

In addition a city is authorized to adopt a charter. Stamford adopted a Charter. "In 1947 the General Assembly passed a Special Act which provided the City of Stamford with its Charter. #25 Spec. Acts No. 312 (January Session 1947)." Winters v. Board of Representatives of the City of Stamford, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 92-0122075 (March 31, 1993, Rush, J.); Sheridan v. Planning Board of the City of Stamford, 159 Conn. 1, 4 (1969); Mabank Corporation v. Board of Zoning Appeals of the City of Stamford, 143 Conn. 132, 135 (1956). The City of Stamford did adopt the current Charter that consolidated the former borough (City) and town governments.

It has been well established that a city's . . . charter is the fountainhead of municipal powers . . . Cilley v. Lamphere, 206 Conn. 6, 12, 535 A.2d 1305 (1988), quoting Lombardi v. Bridgeport, 194 Conn. 601, 604, 483 A.2d 1092 (1984); Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 8, 533 A.2d 152 (1988). "`The charter serves as an enabling act, both creating power and prescribing the form in which it must be exervided.' West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983). Agents of a city, including [the board of representatives], have no source of authority beyond the charter. Perretta v. New Britain, 185 Conn. 88, 92, 440 A.2d 823 (1981)." Cilley v. Lamphere, supra. In construing a city charter, "the rules of statutory construction generally apply." Id.; Norwich v. Norwalk Wilbert Vault Co., supra. A city charter "must be construed, if possible, so as reasonably to promote its ultimate purpose." Arminio v. Butler, 183 Conn. 211, 218, 440 A.2d 757 (1981). "In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together." In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws. "The real intention when once accurately and indubitably ascertained, will prevail over the literal sense of the terms. When the words used are explicit, they are to govern, of course. If not, then recourse is had to the context, the occasion and necessity of the provision, the mischief felt, and the remedy in view." The language employed must be given its plain and obvious meaning, and, if the language is not ambiguous a court cannot arbitrarily add to or subtract from the words employed. 2 McQuillin, [Municipal Corporations (3d Ed. Rev.) § 9.22, p. 685]." Id., 217-18. "A charter provision, like a statute . . . must be definite and certain. An individual must be able to determine whether his or her proposed activity is prohibited." 2 E. McQuillin, supra, § 9.22, p. 916.

Stamford Ridgeway Associates et al v. Board of Representatives of the City of Stamford, 214 Conn. 407, 423-24 (1990) (Interpreting the Stamford City Charter).

"Whenever the General Statutes or the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be exercised the prescribed procedure must be followed for the act to be lawful." Keeney v. Old Saybrook, 237 Conn. 135, 149 (1996).

The City Charter authorizes funds to be raised from taxation to provide for fire protection services in the areas serviced by the Big Five Volunteer Fire Departments. The following Charter Section is at issue in this case.

Stamford City Charter Sec. C8-40-4 "Tax for Fire Service."

(a) The property within the City Tax District shall be subject to taxation in an amount necessary to raise the net appropriation for all costs incurred for the operation of the Regular Fire Department, including principal and interest payments for bonds issued for capital improvements for the Regular Fire Department; provided it shall not be liable for any part of the contribution made to the Volunteer Fire Departments.

(b) Except for the property within the City Tax District which is served by the Regular Fire Department, all other property within the Town Tax District which is served, or to which services are available by the Volunteer Fire Departments, shall be subject to taxation in an amount necessary to raise the net appropriation for the City's contributions for all costs incurred for the operation of the Volunteer Fire Departments, including fire hydrants, water supplies, and principal and interest payments for bonds issued for capital improvements for the Volunteer Fire Departments.

The plaintiffs seek two remedies in the instant case; (1) An award to TOR of $287,762 from the 2008-2009 fiscal year budget allocated to Turn of River for the remainder of TOR's "operating budget," and (2) Equitable relief precluding the City and the Mayor from diverting tax dollars paid by the plaintiff, Matthew Maounis, for fire protection services to the Stamford Fire and Rescue Fire Department.

In the companion case, FST CV 07-4011910 S, not decided in this Memorandum of Decision, the plaintiff, TOR, is claiming five remedies: (1) $287,762 damages for TOR operating costs for the 2008-2009 fiscal year; (2) $1,852,337 for paid personnel for the 2008-2009 fiscal year; (3) Equitable relief preventing the defendants from continuing to implement the plan to reorganize fire services within TOR's fire service district; (4) Equitable relief requiring the City to provide funding for seventeen paid firefighters under the command and control of TOR; and (5) Restoring and enforcing the "Management Agreement."

This court will discuss the above two claims for relief in the instant case: (1) $287,762 damages and (2) equitable relief to prevent diversion of tax dollars.

$287,762 DAMAGE CLAIM

The plaintiffs argue that the City used the budgetary process in an attempt to have TOR accede to the City's Plan of Reorganization of the volunteer fire departments. One part of the plan's reorganization would be that the paid firefighters stationed at the volunteer fire departments would no longer be under the command and contract of the volunteer fire company officers. They would be under the command and contract of the officers of the SFRD.

The City has no budgetary authority other than that the statutes and City Charter. The City has no right or power to use the budgetary process for an improper means. The City has the obligation to use its budgetary process for the public good. A number of trial courts have tried cases in which there have been allegations of manipulative budgets. Ledan v. City of Danbury, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Number X01 CV 04-4001301 S (July 18, 2006, Sheedy, J.) (Claim of budgetary constraints by City only a pretext for use of budget for retaliatory purposes); New Hartford v. Connecticut Resources, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Number UWY CV 04-0185580 S (May 9, 2007, Eveleigh, J.) (Injunction filed to prevent retaliatory budget); Rustici v. Malloy, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Number X02 CV 97-0164460 S (July 1, 2004, Schuman, J.) ("The plaintiffs also alleged that in manipulating the budget, the city acted in bad faith to punish the plaintiffs in retaliation for their complaints." The Long Ridge Volunteer Fire Department, Inc. was a plaintiff and the City of Stamford and Mayor Malloy were defendants in Rustici v. Malloy).

The plaintiff points to a number of facts, which this court finds have been proven.

Gen. Stat. § 7-148(c)(2) authorizes municipalities to "establish and maintain a budget system." Subsection (B) through (L) contain enumerated budgetary powers. The power to grant conditional budgets is not contained in Gen. Stat. § 7-148.

William S. Callion, Jr., Director of Public Health, Safety and Welfare for the City, is in charge of fire services in the city. He is "responsible for the supervision of the activities of . . . the Fire and Rescue Chief and . . . shall be responsible for the coordination of the functions of the City Fire and Rescue Department and the Volunteer Fire Departments of Stamford . . ." Charter Section C5-40-1. Director Callion has no authority to reorganize the Volunteer Fire Departments.

The Stamford Charter Section C8-30-11 is entitled Control of Appropriations and states: "All appropriations in the operating budget for the ensuing fiscal year made by the Board of Representatives shall be made by items, specifying the amount of money appropriated therein and the purpose for which the amount is appropriated. Except as specifically set forth in this section, no money appropriated for any items shall be used for any other purpose, but transfers of appropriations may, with the approval of the Board of Finance, be made in proper cases from one item to another." The line items in the 2008-2009 budget in question are contained in the portion of the City's budget for volunteer fire departments. Ex. 32. There were five line items in the budget for 2006-2007. Ex. 32, Page 211: One for each of the Big Five. TOR VFD was one line item. The approved 2006-2007 budget compared to the Mayor's recommended 2008-2009 budget is as follows: Long Ridge VFD $1,265,624/$1,268,567, Springdale VFD $162,300/$138,135, Glenbrook VFD $162,300/$163,881; Belltown VFD $162,184/$20,000, and Turn of River VFD $324,600/$40,000. In addition, the 2008-2009 Mayor's recommended budget for 2008-2009 contained a sixth line not found in the previous budgets: "TOR Area Fire Support" with a sum for 2008-2009 of $287,762. The 2008-2009 total for TOR VFD and TOR Area Fire Support was $327,762 compared to TOR's approved 2006-2007 budget of $324,600.

The budget for SFRD is contained in another section of the budget in other line items. Therefore, the section of the current budget in question is devoted only to providing funds to the volunteer fire departments. In previous budgets, this same section of the budget contained the Big Five and allotted over $320,000 to TOR in one line item for TOR's operating budget. The City now claims TOR is only entitled to the $40,000 in one line item. Ex. 32, page 185. The City further claims that the $287,762 can be used by the City to be paid to any entity; TOR, SFRD or any other entity provided that all of the funds expended go toward fire service protection in the "TOR Area Fire Support."

The City of Stamford is divided into ten fire districts. There is no district entitled "Turn of River Area Fire Support." There is no "area fire support" or "fire support area" referred to in the Charter Sections C8-40-4 and C5-40-3(2). The only equivalent entity providing fire protection services is TOR and they provide these fire protection services in the Turn of River Fire District. Ex. 2. SFRD is not designated in Exhibit 2 as a provider of fire protection services in the area of the map designated as Turn of River.

Charter Section C5-40-3(d) states: "Jurisdiction. The services of the Fire and Rescue Department under the control of the Chief shall be limited to the City Fire Service District, except in the case of an emergency." "Fire and Rescue Department" means SFRD. The City did not declare such an emergency. There was insufficient evidence of an emergency at trial. Charter Section C-5-40-3(d) is mandatory and contains two mandatory phrases: "shall" and "limited to."

Charter Section C5-40-3(d) entitled Fire and Rescue Department states: "Nothing in this Charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford." This language does not contain the mandatory phrases of the previous sentence. The word "shall" precedes "be construed" and therefore is a method of language construction not of performance of fire services. But those two sentences read together prevent the City from using its budgetary process to require a volunteer fire department to reorganize.

Stamford has been served by volunteer fire departments ever since its founding. Over the years Stamford has undergone great demographic changes. It is now one of the largest cities in Connecticut and with a few thousand more residents could lay claim to being Connecticut's largest city. In addition to the increased population and more intense development in the downtown area, the Stamford volunteer fire departments have suffered a shortage of firefighters in the volunteer ranks. The current City charter merged the borough (City) government with the town government in the 1940s when there was no shortage of volunteer firefighters. TOR first had paid firefighters assigned to it shortly after World War II. Previously TOR was an all-volunteer fire department. In 1999 TOR had twelve paid firefighters.

A recent article published nationally discussed volunteer firefighters, claiming that: "Our nation's volunteer firefighters are always prepared to serve." Parade Magazine, "Why They Serve" Peter Greenburg, July 5, 2009, page 12. This article estimated that there are 1,150,000 firefighters in the United States with 72% volunteers. It was noted that there are 30,200 fire departments in the country and 20,000 of them are volunteer departments. "In fact, most small and midsize communities in the U.S. rely primarily on volunteer firefighters." Parade, page 12. No city the size of Stamford was mentioned in this article. The court notes that if the Big Five had more volunteers serving as trained firefighters, the issues in this case would probably not arise. Although a call for more citizens to serve as volunteer firefighters may be appropriate, such relief is beyond the jurisdiction of this court. The evidence presented to this court establishes that there is a shortage of volunteer firefighters in the ranks of TOR and possibly throughout the other Big Five volunteer fire departments.

In 1995 the City hired a consultant who studied and made recommendations on the provision of fire and emergency services. In line with that consultant's report the City has been attempting to obtain consolidation of the paid firefighters and the volunteer firefighters. Rustici et al. v. Malloy et al., Superior Court, judicial district at Danbury, Docket Number CV 97-0329760 S (May 29, 1998, Leheny, J.). In the late 1990s the City negotiated with each volunteer fire department separately and entered into a series of "Management Agreements." The "Management Agreement" between the City and TOR contains a date of February 8, 1999 and is entitled "Memorandum of Agreement." Ex. 3. Paragraph 7 of the TOR Management Agreement states: "This Agreement shall continue indefinitely unless otherwise mutually agreed to by the parties." The Management Agreement with the other volunteer fire departments gave the City the right of termination upon 180 days notice.

TOR's Management Agreement provides in paragraph 1: "No future City employee shall be assigned to the Company without the Company's advance written approval . . ." Paragraph 2 states: "During the term of this Agreement, the Company shall continue to maintain complete operational control and ownership over its fire stations and fire apparatus and Company management shall retain complete authority over its response and chain of command responsibilities within the Company's fire service district, which authority shall include, but shall not be limited to, the authority to direct the Career Fire Service Personnel assigned to the Company." Paragraph 6 states: "For the term of this Agreement, the City shall provide the Company with an annual budget allocation, to be determined through the regular budgetary process applicable to City departments, in an amount sufficient to pay the Company's cost for its operation as a volunteer fire company." . . ."Such budget allocations shall be made specifically to pay the costs of the Company and shall not be part of a general allocation to the City's volunteer fire companies." The City is the City of Stamford, the Company is TOR and the Career Fire Service Personnel are the SFRD paid firefighters.

Although the 1995 consultant's report was not offered into evidence, the testimony established that its recommendation was that all firefighters, both paid and volunteer, be under the command and control of the SFRD. This is a major change from the volunteer fire department's Management Agreements. Although copies of the Management Agreements entered into between the City and other volunteer fire departments were not in evidence, the testimony established that each of these Management Agreements contain clauses similar to paragraphs 1, 2 and 6.

The plaintiffs argue in Their Post-Trial Brief: "The preponderance of the evidence overwhelmingly shows that the Defendants manipulated the budgetary process under the Charter for the sole purpose of bringing TOR to its knees and forcing it to accept the complete reorganization of its fire fighting services or face elimination." Pleading #201.00, page 14.

In the previous 2007-2008 fiscal year a dispute arose between the TOR and other volunteer fire departments concerning the paid men assigned to the volunteer fire stations. As of July 1, 2007 TOR had seventeen paid firefighters assigned to the TOR fire stations working with TOR volunteer firefighters in a Combination Force. For many years TOR operated as a Combination Force. SFRD has all paid firefighters and no volunteer firefighters and therefore is not a Combination Force. Prior to 1999 TOR hired its own paid firefighters. As a result of the TOR Management Agreement the paid firefighters assigned to the two TOR fire stations became City employees but were still assigned to TOR fire stations. In June 2007 the City proposed laying off five of the seventeen paid firefighters assigned to TOR. This prompted TOR to file the lawsuit that has been previously mentioned, FST CV 07-4011910 S. An Ex Parte injunction was granted by the Superior Court on June 22, 2007 preventing those layoffs. The injunction remains in effect. No layoffs occurred.

The City terminated the TOR Management Agreement on June 4, 2007 effective December 4, 2007. Ex. 19. On that same date, June 4, 2007 the City also terminated the Management Agreements with Belltown Volunteer Fire Department and Glenbrook (New Hope) Volunteer Fire Department effective December 4, 2007. In the interim the City and Glenbrook VFD reached an agreement. Neither TOR nor Belltown VFD reached an agreement with the City on the continuing viability of their respective Management Agreements. The City and TOR commenced mediation pursuant to the terms of their Management Agreement.

Each department or agency of the City submits a proposed budget to the Mayor. The Mayor then reviews all submitted budget requests. TOR has always submitted a proposed "operation budget" for its non-salaried expenses.

The Mayor of the City of Stamford has the power to recommend a budget. Gen. Stat. §§ 7-193(a)(2); 7-194. The budget is required to eliminate wasteful or extravagant expenditures by considering the financial aspects of the municipal government as a whole rather than from the limited viewpoint of any particular department and to insure, as far as possible, the payment of the municipality's current debts out of its current income. Risi v. Norwalk, 144 Conn. 525, 528 (1957); Groton and Stonington Traction Co. v. Groton, 115 Conn. 151, 158-59 (1932); Board of Education of Stamford v. Board of Finance, 127 Conn. 345, 350-51 (1940). The Mayor must use his honest and sound judgment in formulating a budget. Avalon Bay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 422 (2004).

The Mayor then prepares a proposed annual budget. Previous budgets for TOR's non-salary operating costs were in the $320,000 range. TOR had requested $350,000 for 2007-2008. TOR's approved operating budget for 2007-2008 was $324,600. TOR had requested $350,000 for its operating budget for the fiscal year 2008-2009. Ex. 13, page 214. The City's fiscal year is July 1st to June 30th. The Mayor prepared a draft budget for 2008-2009 fiscal year for submission to the Board of Finance. He also prepared a draft budget message designed to be sent to the Board of Finance, the Board Representatives and to the citizens of the City of Stamford in early March of 2008. Ex. 57. This version of the draft budget only allocated $40,000 to TOR for its operating budget. In early March 2008 the City/TOR mediation was on-going.

That draft Budget message stated:

Program Reductions:

Volunteer Fire Departments: The budget also addresses the diminished funding for two volunteer fire departments. We will need to work together with Turn of River Volunteer Fire Department to address new employees effective July 1, 2007. There has been a basic reduction in support provided to Belltown Volunteer Fire Department. I have, however, included $20,000 for Belltown and $40,000 for Turn of River to assist with their fuel costs. Both of these departments no longer have an agreement with the City requiring additional support at this time. It is my hope that we can reach a new agreement with Turn of River before the conclusion of the fiscal season and the setting of a mill rate.

Otherwise, this is a bare bones budget that only includes basic municipal service.

Mr. Callion attended the March 8, 2008 City/TOR mediation session and later that day reported to the Mayor, who had already prepared the above draft budget message. Ex. 57.

As of March 8, 2008, Glenbrook (New Hope) Volunteer Fire Department had agreed to the City's reorganization plan and thus Glenbrook (New Hope) VFD was not mentioned in the Mayor's budget message. No previous budget contained a line item for a "Area Fire Support." All previous budgets for TOR's operating expenses were contained in one line item designated "Turn of River." This last line of "Turn of River Area Fire Support $287,762," did not appear in the preliminary draft budget to which Exhibit 57 was attached. As of March 8, 2008, neither TOR nor Belltown had agreed to the City's reorganization plan. Representatives of the City testified that they thought as of the evening of March 8, 2008 that the mediation was going to be successful and would result in an agreement between TOR and the City. The Mayor then changed his budget on March 8, 2008 by allocating $40,000 to TOR for fuel and another $287,762 for a line item entitled "Turn of River Area Fire Support." Ex. 89. The City referred to this $287,762 as a carrot. He then submitted the following budget message, Ex. 31, which stated:

Program Reductions:

Volunteer Fire Departments: This budget addresses a reduction in funding for two volunteer fire departments.

Belltown Volunteer Fire Department: Belltown VFD no longer has an agreement with the City requiring the City to support its operations. Therefore I have reduced my proposed allocation to $20,000. I feel this amount is sufficient to address their fuel requirement needs.

Turn of River (TOR) Volunteer Fire Department: TOR no longer has an agreement with the City requiring the City to support its operations and as I am proposing for Belltown VFD, I have included $40,000 in this budget request to address their fuel needs. However, the City has recently entered into mediation with TOR which appears to be making substantial progress and I am hopeful that an agreement may be reached which would allow Stamford Fire and Rescue personnel to be stationed at the TOR fire houses. In anticipation of the signing of a formal agreement, I have set aside funding in support of fire services in the Turn of River area.

Otherwise, this is a bare bones budget that only includes basic municipal services.

This budget was approved by the Board of Finance and then by the Board of Representatives. These two line items became the official budget of the City effective July 1, 2008: "Turn of River" $40,000 and "Turn of River Area Fire Support" $287,762. Ex. 32.

The members and officers of TOR did not perceive the Ex. 31 budget message to be a carrot. They viewed it as a club held over its head. TOR interpreted the Mayor's budget and budget message to mean: "We, the City of Stamford, will pay you the remaining $287,762 portion of the operating budget only if you agree to the reorganization plan." This court regards TOR's viewpoint as reasonable under the circumstances.

Unfortunately, the mediation was not successful. TOR members voted in June 2008 not to accept the mediated agreement reached by its officers with the City. The City thereafter refused to pay and has not paid any portion of the $287,762 to TOR. The City did pay to TOR the budgeted $40,000 on a monthly basis during the current fiscal year.

The $40,000 was allocated toward fuel costs of TOR for its two fire stations. $40,000 is insufficient for TOR to pay for its operating budget outlined above. TOR's insurance alone is in excess of $40,000. TOR has insufficient assets, income and income potential to meet its operating budget for the current fiscal year that ends June 30, 2009. As a result, after July 1, 2008, TOR had to close one fire station, sell a fire truck and reduce other expenses. TOR has little in the way of liquid assets and has very limited ability to raise funds by donations or grants. There is a good chance that TOR may go out of business and no longer be capable of providing fire protection and emergency services to the residents and businesses in the Turn of River area.

Prior to July 1, 2008 TOR regularly received approximately $320,000 per year from the City of Stamford toward its "operating budget." The operating budget was used by TOR to pay for fuel, maintenance, firefighting gear, uniforms, volunteer fire department's training, utilities and maintenance for both the equipment, fire apparatus, and real property owned by TOR in which they housed their firefighting apparatus and equipment. At that time there were seventeen paid firefighters that were assigned to the two TOR fire stations. In previous budgets after 1999 the salaries and benefits of those seventeen paid firefighters were paid directly by the City and were not included within TOR's "operating budget." The seventeen were City employees. The annual salaries and benefits for those seventeen was $1,853,835 for the approved budget for the fiscal year July 1, 2006 to June 30, 2007. Ex. 13, Page 220. TOR had requested $1,991,639 for those annual salaries and benefits for 2007-2008. For the fiscal year 2007-2008 that budgeted amount was $1,852,337, Ex. 13, Page 212. Volunteer firefighters who are members of TOR are not paid. Those budgeted salaries were in addition to the "operating budget."

Even though TOR has not received any portion of the remaining $287,762 in the current fiscal year, TOR has been providing fire protection and emergency services in the Turn of River area along with mutual aid to adjacent districts when needed. The total of the $40,000 and $287,762 is $327,762, which sum is within the range of the usual "operating budget" TOR had received from the City in the past five years. TOR is seeking a monetary award from the City in the amount of $287,762.

The credible evidence has proven the following facts. Since the 1999 Management Agreement was entered into, TOR has received two monetary benefits from the city: The paid fire fighters assigned to the two TOR fire stations were paid their salaries and benefits directly by the City and TOR received City funds in the form of an "operating budget." The average of the eight TOR operating budgets from 1999 through June 30, 2007 was $310,194. Ex. 8a, Ex. 34 through Ex 40. Until the 2007-2008 budget each volunteer fire department had a separate line item for its operating budget.

Commencing with budget process for the 2007-2008 fiscal year and continuing into the 2008-2009 fiscal year the City and/or its agents and employees did the following:

eliminated the line item operating budget for the fiscal year 2007-2008 for each volunteer fire department, Ex. 32, page 209;

all previous operating budgets for the volunteer fire departments had a separate line item for each named volunteer fire department. Ex. 32, page 211; Ex. 13, page 214;

added all volunteer fire department's operating budgets into one line item entitled Volunteer Fire Support without any allocation to any one volunteer fire department commencing on July 1, 2007;

the elimination of the line item operating budget was without the consent of TOR;

the elimination of the line item operating budget placed each volunteer fire department in competition with the other volunteer fire departments for the fair share of that operating budget;

the prior line item for TOR operating budget was consistent with paragraph 6 of the Management Agreement and the one line item budget for all volunteer fire departments operating budget was inconsistent with paragraph 6;

the inclusion of all volunteer fire department's operating budgets into one line item entitled "Volunteer Fire Support" and allocating $2,002,163 for that line item in the 2007-2008 approved budget preventing TOR from knowing how much of the operating budget was allocated to TOR; Exhibit 32, page 186.

the Collective Bargaining Agreement (CBA) in effect commencing in 2004, ceded command and control of the paid firefighters assigned to TOR to the volunteer officers. Ex. 10, page 26;

William S. Callion, Jr., as Director of Health, Safety and Welfare for the City and supervisor of all fire protection and emergency services, told TOR in February 2007 that there is nothing going on that I know of, and I will keep TOR in the loop, when in fact Mr. Callion was actually negotiating a new CBA with Local 786, IAFF the paid firefighters union, and preparing a plan of reorganization of all fire protection services;

for the first time ever the City conducted a forensic audit of TOR's financial records in March 2007 despite the fact that TOR had submitted to the City CPA certified financial statements every year;

financial review by the City of Ex. 16 occurred on May 8, 2007 before the first meeting of all the volunteers on May 17, 2007;

prepared an "Interim Fire Department Action Plan," Ex. 16, without consultation with TOR, which Plan would result in the loss of volunteer company command and control of paid firefighters assigned to the volunteer companies;

on May 16, 2007, Mr. Callion met only with SFRD and the union on the proposed fire services reorganization;

Mr. Callion called and held a May 17, 2007 meeting of the Big Five attended by the union, the SFRD Chiefs and Dennis Murphy, Human Resources Director for the City. The meeting had no agenda. There was no written notice of what would be discussed at the meeting;

reorganization of the volunteer departments was proposed by Mr. Callion at the May 17, 2007 meeting, which lasted one hour;

at the May 17, 2007 meeting Mr. Callion announced his plan for the reorganization of the fire services in Stamford, effective July 1, 2007, which included the housing of SFRD men in the volunteer fire stations under the command and control of SFRD officers;

at the May 17, 2007 meeting the City threatened layoffs of the paid firefighters assigned to the volunteer fire departments if this reorganization plan was not agreed to by all the volunteer companies;

at the May 17, 2007, meeting the City claimed this plan of reorganization would save the City $545,876 but no reason was furnished by the City why that $545,876 could not be saved by laying off SFRD paid men based on seniority. Ex. 50;

Mr. Callion called and held a meeting on May 30, 2007 attended by the Big Five, the union and Mr. Murphy and at this meeting a power point presentation of the plan of reorganization was presented. There was no agenda and no documents were given to the Big Five before this meeting. Each of the Big Five received a printed copy of the power point presentation at the May 30, 2007 meeting. Ex. 16;

only a few days notice was given to TOR of the May 30, 2007 meeting;

the "Interim Fire Department Action Plan," Ex. 16, called for various events to occur on May 8, 2007, May 16, 2007 and May 18, 2007, dates that had already passed by the time Ex. 16 was first presented to TOR;

the City had already started implementing the "Interim Fire Department Action Plan" before it presented TOR with the plan of reorganization on May 30, 2007;

implementation of Ex. 16 began on May 18, 2007, almost two weeks before the plan was presented to the volunteers;

Ex. 16, page 6 contained two recommendations that conflict with TOR's Management Agreement: "Place all city paid firefighters into The Stamford Fire and Rescue Department" and "Maintain a gasoline account for Belltown, Glenbrook and Turn of River volunteers."

at the May 30, 2007 meeting the City threatened nine layoffs for both SFRD and the paid men assigned to the Big Five. Ex. 81. Present at that meeting was the union president and representatives of the Big Five;

as of May 30, 2007 the 2007-2008 budget had already been formally approved by all City agencies and Boards and had been legally adopted;

on May 30, 2007 TOR, Belltown and Glenbrook submitted an alternate reorganization plan a written counter proposal to Exhibit 16, designed to effect the monetary savings for the 2007-2008 budget. This volunteer plan would not require any layoffs and would retain command and control of the paid men assigned to the volunteer fire departments with the volunteer officers. Ex. 21;

Mr. Callion reviewed the volunteer's May 30, 2007 proposal with a "team" consisting of the City's Office of Policy and Management and the SFRD Chief. There were no volunteer firefighters members of this "team." The "team" studied the proposed financial savings of the volunteer's May 30, 2007 proposal and the "team" found that the proposal would not result in the $545,000 savings needed;

there was no evidence that any member of the "team" met with or conferred with any volunteer fire department representative between May 30, 2007 and June 7, 2007;

the Mayor's May 30, 2007 Press Release noted large scale layoffs would occur if the plan of reorganization was not accepted. "Unfortunately, the alternative is laying off firefighters in both downtown and the Big 5, which would clearly be a move in the wrong direction." "Should the plan not be implemented, the city's Director of Administration, Sandra Dennies, has indicated that unfortunately large scale layoffs in the fire departments will become a reality." Ex. 17;

Mr. Callion assisted in drafting this Press Release;

a few days after May 30, 2007, the City threatened layoffs only to occur from the paid men assigned to these three volunteer fire departments that did not agree to the reorganization plan. Ex. 85;

the City failed to adequately consider TOR's May 30, 2007 proposal, Ex. 21 prepared in response to Ex. 16;

June 1, 2007 Mr. Callion sent an e-mail to TOR stating: "The City of Stamford plans to terminate the 1999 Memorandum of Agreement between the City of Stamford and the Turn of River Fire Department effective, December 4, 2007." Ex. 18. This was the first notice TOR had of the possible termination of the Management Agreement;

the City failed to confer with TOR prior to the threatened termination of the Management Agreement;

on June 4, 2007 Mr. Callion sent a letter to TOR that stated: "Please be advised that the City has elected to terminate the 1999 Memorandum Agreement between the City of Stamford and the Turn of River Fire Department, effective December 4, 2007. If you believe that I can be of assistance to the Company in making this transition, please do not hesitate to call. To the extent that it is practical and financially feasible, I will try to meet with you to make the change as smooth as possible." This is the entire letter. Ex. 19;

both Exs. 18 and 19, the above two letters, were authorized by the City;

On June 4, 2007 the City terminated the Management Agreements of the other two volunteer fire departments, Belltown and Glenbrook, effective December 4, 2007 after giving the requisite 180 days notice required under their Management Agreement;

no event occurred between June 1, 2007 and June 4, 2007;

on June 7, 2007 Mr. Callion wrote a letter to TOR, Belltown and Glenbrook rejecting the volunteer proposal of May 30, 2007. Ex. 20;

in the June 7, 2007 letter, Mr. Callion offered as a counter-proposal the Interim Fire Department Action Plan, Ex. 16 presented on May 30, 2007, without any changes or modifications made to the Ex. 16 plan of reorganization. Exhibit 20;

the June 7, 2007 letter was not a counter-proposal. Ex. 20;

also in Ex. 20, Mr. Callion notified TOR, Belltown and Glenbrook that the acceptance date for this counter-proposal was by June 14, 2007;

in the Ex. 20 letter Mr. Callion wrote: "Responses by this date are needed so that for those who choose to not accept our proposal, we can launch layoff notices, effective June 29, by department, as follows; Belltown — three firefighters, Glenbrook (New Hope) — three firefighters and Turn of River — five firefighters;

the City did not propose any layoffs of SFRD paid men in Ex. 20;

the City did not propose any layoffs of SFRD paid men at any time after June 1, 2007;

the layoffs of TOR five firefighters would violate the seniority rule of the CBA;

Mr. Callion did not send a copy of the layoff letter, Ex. 20, to Local 786, IAFF or notify the union in any manner of the proposed layoffs;

based on the seniority rule under the July 1, 2004 CBA then in effect on June 2007, if city wide layoffs would have occurred, only one of TOR's seventeen paid firefighters would have been subject to a layoff;

on June 14, 2007 TOR wrote a letter to Mr. Callion stating that his June 7, 2007 letter violated certain paragraphs of the Memorandum of Agreement. Ex. 3. "It is our belief that the manner in which the City is proceeding and the terms of the City's take-it-or-leave-it proposal is not only morally unconscionable and taken in bad faith . . ." Ex. 22;

On June 14, 2007 TOR officially requested mediation pursuant to paragraph 8 of Ex. 3. Ex. 22;

as of June 24, 2007, Mr. Callion had not responded to TOR's June 14, 2007 letter;

TOR filed suit on June 21, 2007 and obtained an Ex Parte Injunction preventing said layoffs. That injunction is still in effect in the companion case, FST CV-07-4011910 S;

the parties did exchange correspondence in late June 2007 and early July 2007 concerning the terms of the mediation and the issues to be mediated. Ex. 23-25; Ex. 28;

the CBA signed by TOR in effect in May-July 2007 contained a seniority provision that stated: Employees hired prior to January 1, 1998, shall not be subject to layoff. The threatened layoffs of June 2007 were in violation of this provision. Ex. 10, page 22;

the parties did not mutually agree to terminate the Management Agreement;

the Interim Fire Department Action Plan was to be in full force and effect on July 1, 2007;

despite the threatened cancellation of the Management Agreement and the abrupt termination of the Management Agreement effective December 4, 2007, the City still assigned its seventeen paid firefighters to the two TOR fire stations under the command and control of TOR officers until July 1, 2008;

the Interim Fire Department Action Plan, Ex. 16, contains no mention of the termination of any of the existing Management Agreements with the volunteer fire departments;

neither the City or Mr. Callion gave any reason for the termination of the TOR Management Agreement;

neither the City or Mr. Callion gave any reason for the threatened cancellation of the Belltown and Glenbrook Management Agreements, which suffered similar reduced funding;

Hon. Edward R. Karazin, Jr. issued a decision in the companion case determining that the TOR Management Agreement was valid yet Mr. Callion sent an e-mail to TOR after that court decision in November 2007 confirming the termination of the Management Agreement effective December 4, 2007. Ex. 27;

the City failed to implement and perform in full the Management Agreement after a Superior Court finding in the companion case that it was a valid contract;

the July 1, 2004 CBA required that the paid firefighters "shall work under the direction and supervision of the respective volunteer Fire Department to which they are assigned." Thus the CBA was in effect until the November 30, 2007 CBA was negotiated and signed by the City required the paid firefighters working at the two, TOR fire stations to be under the command and control of the Turn of River volunteer officers. Ex. 10;

TOR executed the one-year CBA with the union of paid firefighters, Local 786 IAFF, effective July 1, 2004. This CBA continued in effect until a new November 30, 2007 CBA was executed. This CBA covered the seventeen paid firefighters assigned to the two TOR fire stations. Ex. 10;

the City concedes that fire protection services provided by a volunteer fire company is less expensive then fire protection services provided by a paid fire department;

Mr. Callion expected TOR to function on its own if TOR did not accept the reorganization plan yet Mr. Callion assigned SFRD paid firefighters and fire protection apparatus to two locations within the Turn of River area after July 1, 2008;

negotiated a new CBA (CBA) dated November 30, 2007 with the union of paid firefighters, Local 786. Ex. 26;

failed to include TOR in the collective bargaining process with Local 786;

included TOR in the initial negotiations on the extension of the July 1, 2004 CBA and then failed to continue to include TOR in the negotiating process despite TOR willingness to participate in the negotiations. Ex. 11, Ex. 12;

failed to have TOR sign this new CBA despite the fact that the previous CBA had been negotiated by TOR and signed by TOR;

the City did not include TOR in the negotiation process of this new CBA since it had terminated TORs Management Agreement;

on November 30, 2007 the City and the union, Local 786 IAFF, executed a new CBA for the period of July 1, 2005 through June 30, 2009 that covered the paid firefighters assigned to TOR, Belltown and Glenbrook. Ex. 26;

TOR did not participate in the negotiation of this CBA. TOR did not sign this new CBA. TOR was not requested to sign this new CBA;

the Union did ratify the November 30, 2007 CBA by a vote of its members;

the City ratified the November 30, 2007 CBA on January 30, 2008;

the City negotiated and executed this November 2007 CBA despite the fact, that by its own actions the TOR Management Agreement was still in effect until December 4, 2007. Exhibit 10 and 26;

the November 30, 2007 CBA merged the paid firefighters in District One (downtown SFRD) with the paid firefighters in District Two (paid men working at of TOR, Glenbrook and Belltown). This CBA covered all paid firefighters no matter where they worked or which fire station they were assigned to;

before November 30, 2007 there were two different CBAs; District One and District Two;

that "command and control" provision is not contained in the November 30, 2007 CBA;

On November 30, 2007, four days prior to the effective termination day of the Management Agreement, the City was willing to agree to keep the paid firefighters at the two TOR fire stations pursuant to six paragraphs of Ex. 3, for the period up to December 21, 2009 and possibly thereafter. Ex. 27;

on November 30, 2007 Mr. Callion sent an e-mail to TOR confirming December 4, 2007 as the effective termination date of TOR's Management Agreement. Ex. 27;

in that Ex. 27 e-mail the City did agree to continue certain paragraphs of Ex. 3 beyond December 4, 2007 to December 31, 2007 subject to future extensions, including paragraphs 1 and 2 of Ex. 3;

Mr. Callion admitted at trial that if TOR agreed to the reorganization plan after the December 4, 2007 termination date, the City would have reinstated the Management Agreement with the appropriate changes to reflect the Interim Fire Department Action Plan;

Glenbrook (New Hope) Volunteer Fire Department agreed to the Interim Fire Department Action Plan, Ex. 16 in December 2007;

Glenbrook's operating budget of $150,000 for the fiscal year 2007-2008 was reduced to a $20,000 allocation for fuel for the one fire station in the Glenbrook district;

after December 2007 Glenbrook's $20,000 operating budget was substantially increased;

After November 30, 2007, TOR became aware that the first time that the City had entered into a new CBA with the union. Ex. 28.

mediation between TOR and the City commenced with mediator Attorney David Golub;

the first formal mediation session with Attorney David Golub took place on March 8, 2008;

there was a subsequent mediation session to work out exact language of a proposed mediation agreement;

TOR never made a request to the City for a fuel allotment of $40,000;

TOR's fuel costs were always included within the TOR "operating budget;"

TOR had not have a line item allocated budget for the 2007-2008 fiscal year and TOR's operating budget for 2007-2008 was determined not by the regular budgetary process but by Mr. Callion individually. Ex. 46;

the City failed to comply with paragraph 6 of the Management Agreement that stated, "the City shall provide the Company with an annual budget allocation to be determined through the regular budgetary process" for the 2008-2009 budget;

the City failed to comply with paragraph 6 of the Management Agreement for the budget year effective July 1, 2007 when its claimed termination of the Management Agreement was not effective until December 4, 2007;

the Office of Policy and Management included for the first time in its budget allocation mill rate model "The Turn of River Area" for the fiscal year 2008-2009;

Belltown and TOR did not agree to the Interim Fire Department Action Plan. Belltown's approved operating budget for 2008-2009 was reduced to $20,000 for fuel costs for its one fire station. The previous Belltown operating budget was in the $150,000 range;

TOR's approved operating budget for 2008-2009 was reduced to $40,000 for fuel costs for its two fire stations;

the operating budgets for 2008-2009 for Springdale VFD and Long Ridge VFD far exceeded the $20,000 allocated to Belltown and TOR for each of its fire stations";

there has never been a line item in a Stamford budget for "area fire support;

On June 28, 2008 effective July 1, 2008 Chief McGrath of SFRD issued an administrative order transferring the paid men from TOR to two new locations in the Turn of River area; Vine Road for Engine 8 and Long Ridge Road for Engine 9. Ex. 29;

TOR was notified of the July 1, 2008 assignment of SFRD paid firefighters to the two new fire stations in the Turn of River area by an e-mail dated July 7, 2008. Ex. 86;

although the City's plan of reorganization was to be effective July 1, 2007, the seventeen paid firefighters remained in the two TOR fire stations until July 1, 2008;

no paid firefighters have worked in the two TOR fire stations after July 1, 2008;

the City did not layoff any paid firefighters;

from July 1, 2008 to date, the City has not paid directly to the TOR's providers or to directly or indirectly to TOR any of the itemized expenses in paragraph 3 of the Management Agreement;

on July 1, 2008 all paid firefighters were removed from the two TOR fire stations and none have returned. Ex. 77, 78, 79;

To date neither Belltown nor TOR has agreed to the City's reorganization plan;

To date the City has not paid to Belltown or TOR any money beyond the above fuel costs;

there is no Charter section cited by the City that authorizes the City to assign paid SFRD firefighters to provide fire protection services in the Turn of River area when TOR is providing fire protection services for that same area;

none of the $287,762 was paid directly to SFRD for the salaries and benefits of the paid firefighters. The $287,762 was spent by the City to install two temporary fire stations in the Turn of River area, to staff the SFRD men assigned thereto and pay for utilities, rent, installation of temporary structures and modifications to an existing building;

used the $287,762 allocated to "Turn of River Fire Service Area" to convert and modify an existing building in the TOR area to house SFRD paid firefighters, construct temporary garage for five trucks, provide desks, beds, computers, etc. for the use of the SFRD firefighters assigned to these new fire stations, paid for utilities and supplies and commenced construction of a new structure;

for the fiscal year 2008-09, the City collected taxes from the Town Tax District for fire services provided by SFRD;

in the current fiscal year the City has paid for costs incurred by SFRD with taxes collected from the Town Tax District;

in the current fiscal year the costs of operation incurred by SFRD Engine Company number 8 in the Turn of River fire service district are being paid (whether in whole or in part) with taxes collected from the Town Tax District;

in the current fiscal year, the costs of operation incurred by the SFRD Engine Company number 9 in the Turn of River fire service district are being paid (whether in whole or in part) with taxes collected from the Town Tax District;

if the City permitted its paid firefighters to work under the command and control of the volunteer fire department officers, a claim could be made that action would violate the November 30, 2007 CBA, a CBA that TOR neither negotiated nor signed. Ex. 26;

Mr. Callion is monitoring the expenditure of this $287,762 as the "approver."

for the first time the allocation of costs to determine the mill rate of the various Tax Districts contained an item for "TOR area." James Hricay, Assistant Director of the Office of Policy and Management, had to allocate those funds to obtain a mill rate;

as authorized by the Charter after July 1, 2008, TOR twice applied to the City for a Supplemental Appropriation to increase the $40,000 operating budget for 2008-2009 and both requests were not approved;

the City may no longer be permitted the SFRD paid firefighters to ride to emergencies or service calls on TOR owned vehicles due since that may be a violation of the November 30, 2007 CBA;

the City may no longer be permitted SFRD paid firefighters to use any TOR equipment or apparatus since that may be a violation of the November 30, 2007 CBA;

the City can only permit the SFRD paid firefighter to use equipment or apparatus owned by SFRD/City or else the City may be in violation of the November 30, 2007 CBA;

Charter Section C5-40-3(d) limits the authority of the Chief of SFRD to the City Fire Services District, which is composed only of Tax Districts A and B. The City may have violated this Charter Section C5-40-3(d) when it negotiated and signed the November 30, 2007 CBA giving control of all paid firefighters to the SFRD officers even if the paid firefighters are assigned to volunteer fire departments;

the $287,762 budgeted for Turn of River Fire Services Area along with the $40,000 budgeted for TOR in fiscal year 2008-2009 totals the exact amount of the TOR operating budget for 2007-2008.

The Mayor proposed the $40,000/$287,762 budget for 2008-2009 and neither the Board of Finance nor the Board of Representatives reduced these amounts even though most other portions of the Mayor's budget were reduced by the actions of those Boards;

TOR did not agree to the City's reorganization plan and received $40,000 for its 2008-2009 operating budget whereas Glenbrook (New Hope) VFD did agree and received over $100,000 in its 2008-2009 operating budget, despite the fact that TOR covers a much larger territory and has larger call volumes than Glenbrook (New Hope) VFD.

Since July 1, 2008 the City of Stamford through its SFRD has provided and outfitted two separate fire stations in the Turn of River area at locations other than the two TOR fire houses and is using the $287,762 to fund certain non-salary operating costs for those two fire stations. The City claims that it has the right to spend the $287,762 since that is for fire protection services in the Turn of River area, albeit not to TOR.

The plaintiffs claim that this is budget manipulation designed by the City to pressure the volunteer fire company to agree to the City's demands. The plaintiff points out that this is not the first time a volunteer fire department has made a claim of City budget manipulation. The City, Mayor Malloy and the predecessor to William S. Callion, Jr. were defendants in a 1998 injunction suit commenced by another of the Big Five, Long Ridge Volunteer Fire Department (LRFC) and its paid men, Long Ridge Paid Drivers Association (LRPDA). Rustici v. Malloy, Superior Court, judicial district of Danbury at Danbury. Docket Number CV 97-0329760 S (May 29, 1998, Leheny, J.). The plaintiffs, members of LRPDA and the LRFC, filed the lawsuit seeking injunctive relief. The following injunctive relief was granted: "The court, however, enjoins the defendants from withholding duly appropriated funds and from failing to appropriate sufficient funds to provide the necessary level of fire protection to the residents of Long Ridge."

The Rustici court entered these findings:

Behind the mayor's move was his desire to implement the recommendations of a consultant's report which had been prepared for his predecessor. That report addressed the change in the provision of volunteer services and the demographic changes in Stamford. It concluded that there was an excess of fire fighters in the downtown department and a shortage of fire fighters in the volunteer ranks. The mayor had been attempting to obtain a consolidation agreement with the volunteer fire companies but negotiations with the LRFC and the LRPDA had not progressed to the satisfaction of any of the parties.

The thrust of such an agreement would make the professional fire fighters of the LRFC members of the downtown department and city employees. Consolidation would affect their pension rights, ranks, salary and other conditions of employment.

The city's threats to use the budget process to obtain the consent of the LRPDA to its conditions may have interfered with the company's ability to collectively bargain with its own employees. Furthermore, by stationing Engine 6 at Station 2 the city may very well have interfered with the provisions of Article XXVII of the collective bargaining agreement which asserts the LRFC's right `to determine all matters affecting the operation of the company, including but not limited to the right to direct and control the firefighting force.'

Upon information and belief, this injunction in Rustici v. Malloy is still in effect and forms the basis of the current relationship between the City of Stamford, SFRD, LRFC and LRPDA in the Long Ridge Fire Services District. Ex. 2.

The Long Ridge Fire Company, Inc., made similar allegations of budget manipulation by the City of Stamford during the mayoralty of the defendant, Dannel F. Malloy when the Rustici v. Malloy case was transferred to the Complex Litigation Docket. "The plaintiffs allege that the city's improper manipulation of the budget continues to the present time." "The plaintiffs allege that the defendants have followed through on their threats to manipulate the company's finances in an effort to drive it or the plaintiffs into submission, or the company out of existence . . ." The trial court made the following findings: "Thus, there is a reasonable argument that no power of city government authorized by the charter, including the power to spend municipal revenue, shall be construed to affect the organization, status, or property of the volunteer fire departments." "On the other hand, if the prohibition in § C5-40-4(d) on Charter-authorized budgeting actions that affect the `organization status, and property' has any meaning that the courts can enforce, the prohibition surely prevents the city, through budgetary means otherwise authorized by the Charter, from eliminating the volunteer fire departments." Rustici et al. v. Malloy et al., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Number X02 CV-97-0164460 S (July 1, 2004, Schuman, J.)

Belltown Volunteer Fire Department made similar allegations of budget manipulation by the City of Stamford during the mayoralty of the defendant, Dannel F. Malloy. Belltown sued the City and the City filed a Motion to Dismiss alleging that the individual plaintiff lacked taxpayer standing and that the plaintiff Belltown was seeking adjudication of what is a political, nonjusticiable controversy. Belltown Fire Department et al. v. City of Stamford, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number FBT CV 08-4024530 S. (June 25, 2008, Frankel, J.). The court denied both grounds of the Motion to Dismiss. The case is still pending on the trial docket. There was testimony offered at the hearing on the Motion to Dismiss and the trial court made the following finding: "The court found credible the testimony offered by the plaintiff that indeed the City may be funding them into nonexistence with an appropriation of $20,000.00 for the entire year. These are issues to be reviewed, however, on the merits of the case."

In 1999, the parties resolved a lawsuit between TOR and the City in which the City had withheld a budget allocation for operating funds until, and when, TOR signed a Management Agreement. Dannel F. Malloy was the Mayor. TOR and the City did sign the Management Agreement in November 1999. Ex. 3. The City then paid the balance of the operating budget to TOR.

The court has read carefully each of the Charter provisions that has been brought to the court's attention and the prior budget records that had been offered in evidence back to 2000. No authority has been furnished to the court that the City has the power under its Charter or under any case law or state law to allocate and approve a "conditional budget." Gen. Stat. § 7-148(c)(2) contains no such conditional budgetary authority. The condition imposed by the City was that if TOR accepted the mediation proposal, then the $287,762 would be paid to TOR. If TOR did not accept the proposal, then those funds would be paid to some other entity that would serve the fire protection needs for the Turn of River area; to wit, SFRD, whose paid firefighters would be immediately assigned to the two temporary locations commencing July 1, 2008.

TOR is claiming three legal remedies for essentially the same relief: an injunction, a writ of mandamus and a declaratory judgment.

"A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy of law." Hartford v. American Arbitration Association, 174 Conn. 472, 476 (1978). Injunctive relief lies within the discretion of a trial court. Advest, Inc. v. Wachtel, 235 Conn. 559, 563 (1995); Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 648 (1994); Gen. Stat. § 52-471.

"It is well settled that "[m]andamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." Bloom v. Gershon, 271 Conn. 96, 106 (2004).

Both Connecticut General Statutes and the Practice Book authorize an action for declaratory judgment. Gen. Stat. § 52-29, P.B. 17-54 et seq. "A declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." P.B. § 17-55.

All interested persons must be joined as parties or have been given reasonable notice. P.B. § 17-56(b). The defendants claim in their Eighth Special Defense that no adequate notice has been given. Neither party addressed this issue at trial but presumably all the taxpayers of the City of Stamford as well as the other Stamford volunteer fire departments may be those who have not received notice by publication in a newspaper of general circulation. No such publication was proven at trial.

The court finds that such a conditional budget has no authority under either the City Charter, the statutes or any of the enabling acts of the City. This money belonged in TOR's operating budget. The court finds that the TOR/TOR Area Fire Support was not the type of contingent funding authorized by Gen. Stat. § 7-348. The court therefore finds that the City is obligated to pay to TOR the sum of $287,762, which total sum must be paid to TOR on or before June 30, 2009. Board of Education v. Ellington, 151 Conn. 1, 13 (1963).

The court finds that the plaintiff, TOR, has proven the two elements for an injunction. They have shown irreparable harm in that the continued existence of TOR has been impacted by the loss of the City's contribution of $287,762 to TOR's "operating budget." TOR also lacks an adequate remedy of law. Mandamus is an extraordinary remedy rarely granted and requires proof of an inadequate remedy. The court finds that a writ of mandamus is not appropriate under these circumstances. A declaratory judgment establishes the right for TOR to receive the $287,762 but does not contain an order directing the City to pay that sum. Thus a declaratory judgment is not appropriate. An injunction is an appropriate remedy for a taxpayer against a municipality. Bassett v. Desmond, supra, 140 Conn. 430; New Hartford v. Connecticut Resources, supra.

The court will enter an injunction in favor of TOR as against the City of Stamford, ordering the City of Stamford to raise and pay over to TOR the sum of $287,762 on or before June 30, 2009.

EQUITABLE RELIEF TO PREVENT DIVERSION OF TAX DOLLARS

The City of Stamford collected real property taxes from the plaintiff, Maounis, and other real property owners in the town area serviced by TOR before and after July 1, 2008. TOR and Maounis both claim that a portion of Maounis's real estate taxes was paid in the past for TOR fire protection services is no longer being paid for volunteer fire protection services. The court finds that some or all of the $287,762 is being paid to the SFRD for fire services. Since July 1, 2008 the SFRD has established two temporary fire stations in the Turn of River area, both manned by paid firefighters and one emergency vehicle at each of those two temporary fire stations. The plaintiff, Maounis, claims that the City is diverting his tax dollars in violation of the City Charter, not only for the $287,762, but larger sums for a long time in the past.

The plaintiff, Maounis, seeks a declaratory judgment declaring that the "defendants cannot divert plaintiff Maounis' fire tax payments from fire protection in the Town area to fire protection in the City area." Maounis claims that he is a taxpayer owning real property in the City of Stamford and that real property is located in the Turn of River area in Stamford, which is an area serviced by the Turn of River Fire Department, Inc. Paragraph 16 alleges: "Plaintiff Maounis pays fire taxes for the benefit of the Turn of River Fire Department, Inc. but his money is being diverted by the defendants to the City of Stamford and the amount of money being diverted will increase after June 30, 2008 unless the court grants relief sought by this lawsuit."

Both plaintiffs claim that Matthew Maounis has proven standing to bring this lawsuit as a taxpayer of the City of Stamford. The City claims otherwise in its First Special Defense. The law on taxpayer standing is well settled.

"[N]o person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity." Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953). Standing does not result automatically upon establishing that a party qualifies as a taxpayer. A plaintiff who relies upon such a status in bringing an action to question some alleged illegal activity on the part of municipal officials must also prove that the transaction involved will probably "result, directly or indirectly, in an increase in his taxes or would, in some other fashion, cause him irreparable injury." Id. Once a probable increase in his tax burden from the challenged activity has been shown, a plaintiff has passed the threshold of standing even though the pecuniary effect upon him may be extremely small. Id., 432; Beard's Appeal, 64 Conn. 526, 534, 30 A.775 (1894); 18 McQuillin, Municipal Corporations 52.13.

American-Republican, Inc. v. Waterbury, 183 Conn. 523, 526 (1981).

Maounis owns real property in the Turn of River area which is in Tax District C. He pays real estate taxes to the City of Stamford and has done so for many years. His real estate tax bill of $15,051.76 was offered in evidence. Exs. 74 and 75. Maounis is current in his tax payments to the City. He meets the first element of taxpayer standing as a taxpayer.

The second prong needs some explanation. The second most recent appellate case on taxpayer standing holds: "It is not enough for the plaintiff to show that its tax dollars have contributed to the challenged project . . . The plaintiff must prove that the project has directly or indirectly increased its taxes . . . or in some other fashion caused it irreparable injury in its capacity as a taxpayer." Andress v. Town of West Hartford, 285 Conn. 309, 323 (2008). The most recent appellate case on taxpayer standing is Murphy v. Stamford, 115 Conn.App. 675 (2009). (Plaintiff failed to sustain her burden of proof that the installation of four synthetic soccer fields could or will cause increased taxes or other irreparable injury to her.)

Relatively minor amounts of money has been held to have satisfied this second prong. Higgins v. Ambrogio, 19 Conn.App. 581, 582-83 (1989) ($22,468.80 paid to a police chief in excess compensation held to have satisfied taxpayer standing in a suit against the Town of Hamden); American-Republican, Inc. v. Waterbury, supra, 183 Conn. 525-28 ($216,500 land purchase contract for an elderly housing project utilizing largely federal funds sufficient to grant taxpayer standing because the property would be removed from the tax rolls).

"A colorable claim of a pecuniary loss, regardless of its magnitude, satisfies this criterion for standing." Id., 527. "Once a probable increase in his tax burden from the challenged activity has been shown, a plaintiff has passed the threshold of standing even though the pecuniary effect upon him may be extremely small." Id., 526; Bassett v. Desmond, 140 Conn. 426, 432 (1953). ($3,500 painting contract sufficient to establish taxpayer standing).

The plaintiffs claim that Maounis meets the second prong by reason of the improper use by the City of $287,762 that should have been budgeted and paid to TOR. TOR had been providing fire services to residents of the Turn of River area and for many of those years has been receiving over $310,000 a year from the City's budgeted funds. Commencing July 1, 2008 the City only contributed $40,000 to TOR payable monthly. Thus TOR's fire protection services to the taxpayers in the Turn of River area were reduced because apparatus and equipment had to be sold by TOR. In addition the $287,762 was wrongfully paid to or directed to the benefit of SFRD and should have been paid to TOR thus increasing the total cost to taxpayers of fire services in the Turn of River area. Ex., 76. The City taxpayers are paying for double fire protection service in the Turn of River area. These facts have been proven. The court finds that the plaintiff, Matthew Maounis, has taxpayer standing.

The first claim of diversion of $287,762 for the 2008-2009 TOR operating budget has already been resolved in favor of TOR. No further relief on that $287,762 can be claimed by Maounis.

The second claim of diversion is that the City has not paid for the paid firefighters assigned to TOR for the fiscal year 2008-2009. In the recent past the City provided seventeen paid firefighters and assigned them to the two TOR fire stations. These seventeen were removed on July 1, 2008. Since July 1, 2008 the City has provided fire protection services to the Turn of River area with paid firefighters assigned to the two temporary fire stations manned only by SFRD firefighters. TOR is seeking a money damage award to it of $1,852,337 for those seventeen paid firefighters. TOR offered no evidence that it paid any firefighters after July 1, 2008 or that TOR had any paid firefighters providing fire protective services at the existing two TOR fire stations after July 1, 2008. The $1,852,337 was the amount budgeted by the City for salaries and benefits for those seventeen paid men for the previous fiscal year of 2007-2008 when these paid firefighters were assigned to TOR. Ex. 32, page 217. The City, not TOR, paid the salaries and benefits for these men since the 1999 Management Agreement was signed. After July 1, 2008 the City paid the salaries and benefits for the SFRD men assigned to the Turn of River area. TOR has failed to show any diversion of tax dollars on account of the salaries and benefits for paid firefighters. The issues on this second claim of diversion of tax dollars are found for the City.

The third claim of diversion of Maounis is that his tax payments, the real estate taxes collected in the area served by TOR, are not paid to TOR nor for the benefit of TOR but are aggregated and paid to the Big Five volunteer departments. Maounis claims that TOR has received less tax money than the Turn of River area taxes that have been generated.

This third claim of diversion requires a discussion of the City of Stamford Charter, Section C-8-40-4(b). "Except for the property within the City Tax District which is served by the Regular Fire Department, all other property within the Town Tax District which is served, or to which services are available by the Volunteer Fire Departments, shall be subject to taxation in an amount necessary to raise the net appropriation for the City's contributions for all costs incurred for the operation of the Volunteer Fire Departments, including fire hydrants, water supplies, and principal and interest payments for bonds issued for capital improvements for the Volunteer Fire Departments." The phrase "Volunteer Fire Departments" is stated three times in Charter Section C8-40-4(b). The plaintiffs argue that this section of the Charter requires that the real estate taxes collected in each of the volunteer fire districts must be allocated toward that particular volunteer fire department that provides fire services and emergencies services in that district citing the language of the Charter, "Volunteer Fire Departments." The plaintiffs note the Charter does not state "fire protection services furnished in the areas served by volunteer companies" or similar language. The plaintiffs claim that at no time has the amount of monies raised from the taxpayers from the Turn of River area been allocated just to TOR. This forms the basis for the plaintiffs' third claim of diversion of funds in violation of the Charter.

The City, through its witnesses, offered evidence that throughout the budgetary process before July 1, 2008 and for the current fiscal year, the City allocated the total cost for providing operating budgets to all of the Big Five Volunteer Fire Departments and not by allocating those costs to each of the five individual volunteer fire departments. "The City does not dispute that tax revenues from the area served by volunteer fire departments are not supposed to be used for fire protection in the City tax district . . ." Defendant's Trial Brief, May 28, 2009, page 22. The City is divided into four separate Tax Districts based upon the type of services provided; Tax District A is the city area in which sanitary services are provided; Tax District B is the city area in which sanitation services are not provided; Tax District C is serviced by volunteer fire departments in which sanitation services are not provided; and Tax District CS is the area serviced by volunteer fire departments in which sanitary services are provided. Tax Districts A and B are provided fire protection and emergency services by the SFRD, the City paid firefighters. Tax Districts C and CS are provided fire protection and emergency services by the Big Five Volunteer Fire Departments.

Each Tax District has a different mill rate. The mill rate for the C and CS Tax Districts is and has historically been lower than the A and B Tax Districts because the lower costs due to the volunteer fire departments. The C District mill rate for 2008-2009 was 1.01 mills and the CS mill rate was 1.340, whereas A and AB were respectfully: 2.030 and 1.161. Ex. 75.

The Charter defines the "Town Tax District" as comprising the entire City of Stamford. Tax Districts A and B are located in the City Tax District. The Charter sometimes uses the City Tax District and Town Tax District interchangeably. For example, Mayor Malloy testified that his home is in three of these districts: Town Tax District since he lives in Stamford, City Tax District since he is provided SFRD fire protection services and Tax District A since his home is provided sanitary services.

Each of the Big Five has had to augment their volunteer manpower by having full-time paid firefighters assigned to their respective fire stations. Prior to July 1, 2008 TOR had seventeen paid firefighters assigned to its two fire stations. These two fire stations are owned by TOR. Since July 1, 2008 those seventeen paid firefighters were removed from the TOR fire stations and reassigned by the SFRD to the two temporary fire stations now manned by SFRD in the Turn of River area.

James Hricay, Assistant Director of the Office of Policy and Management for the City of Stamford, is in charge of allocating costs to each of those four Tax Districts; A, B, C, and CS. He has a working knowledge of Charter Section C8-40-4. His job is to allocate costs and recommend a separate mill rate for each of the four Tax Districts. He has to properly allocate the projected fire service expenditures between the volunteer fire departments and SFRD. He analyzes in detail all of the fire service budgets. He must distinguish between costs allocated to SFRD and costs for the support of the volunteer fire departments. He carefully looks at all the operating budgets as well as the salaries and benefits of the paid firefighters assigned to each volunteer fire station. He determines what are "direct support" and what are "other services" for the volunteer fire departments in establishing the City's "contributions for all costs" under C8-40-4(b). He uses the computer program called a mill rate model to perform these duties. He does the same type of analysis on the sanitation services. Ex. 70 — Ex. 72. Each individual volunteer fire department is separately analyzed as to staffing and costs of paid firefighters assigned to each volunteer fire department. Then the costs so analyzed are combined for all the volunteer fire departments. Mr. Hricay allocates four components: (1) Trash collection; (2) SFRD costs; (3) Volunteer fire costs; (4) Base tax rate (the cost of general operations of the budget such as police and schools). Sewers are separately billed and are not included in the mill rate model. Item (4) is by far the largest of the four budget components.

The defendant, Dannel F. Malloy, is the current mayor and has been mayor since 1995. He was a past Chairperson of the Board of Finance before 1995 and has been involved in Stamford municipal financing for many years. Both he and Mr. Hricay testified as to the allocation of costs among the four Tax Districts. Mayor Malloy is familiar with the above mentioned allocation process to obtain mill rates. For the past eleven years no allocation of funds in the C and CS tax districts have been made to any of the individual volunteer fire departments for the purpose of establishing the mill rate for any Tax District. All allocations in the C and CS Tax Districts have been based on the costs attributed to all of the Big Five grouped together. The salaries and benefits of the paid firefighters assigned to TOR prior to July 1, 2008 have been allocated to the C and CS Tax Districts by Mr. Hricay and his predecessor. The court finds these two witnesses credible on the issue of allocation of costs to establish mill rates for each Tax District.

Mr. Hricay testified that he performs his allocation duties based on the two subsections of Charter Section C8-40-4, found on pages 8-9 of this Memorandum of Decision. Both subsections contain the same phrase: "shall be subject to taxation in an amount necessary to raise the net appropriation for . . ." It is noted that subsection (a) relates to the "Regular Fire Department" which is SFRD and subsection (b) relates to the "Volunteer Fire Departments." Thereafter the two subsections differ in the language that follows that phrase: "(a) . . . all costs incurred for the operation of the Regular Fire Department, including principal and interest payments for bonds issued for capital improvements for the Regular Fire Department . . ." and "(b) . . . for the City's contribution for all costs incurred for the operation of the Volunteer Fire Departments, including fire hydrants, water supplies, and principal and interest payments for bonds issued for capital improvements for the Volunteer Fire Departments." The different treatment of fire services provided by volunteers and paid firefighters was one of the chief features of the City/Town 1949 consolidation.

Mr. Hricay was asked two pointed questions on how he performed his allocation duties, one for each of the above two subsections of Charter Section C8-40-4. Unfortunately, the first question was phrased in the affirmative and the second in the negative. As to C8-40-4(a) the question and answer was:

Q: So that taxes raised in the A and B districts for fire services only go to payment of fire services provided in the A and B districts.

A: Yes.

As to CR-40-4(b) the question and answer was:

Q: You do not apply that section of the Charter so that taxes raised from the C and CS districts only go to payment for the cost incurred for the operation of the volunteer fire departments.

A: Yes.

Mr. Hricay follows the last portion of Charter Section C8-40-4(a) to make sure that no fire protection costs spent in the C and CS Tax District are charged to the mill rates established for the A and B Tax Districts because of the following provision of Charter Section C8-40-4(a): "provided it shall not be liable for any part of the contribution made to the Volunteer Fire Departments."

By answering "Yes" to both questions, Mr. Hricay addressed the methodology he has used for years in applying Charter Section C8-40-4 to create a mill rate model and establish mill rates in Tax Districts A, B, C, and CS. This court finds that the above procedures are consistent with Charter Section C8-40-4 and do not violate any provisions of the City Charter.

This lawsuit has questioned the allocation by the City of Stamford under the Charter Section C8-40-4(b). Other lawsuits have raised this issue but this is the first case tried. Herein the plaintiff, Maounis, is claiming that this allocation of costs in the C and CS Tax Districts for the current fiscal year and for years previously has failed to allocate these costs to each individual volunteer fire department. Maounis claims that the allocation of all volunteer costs to all the volunteer fire departments grouped together is a violation of the City Charter. He claims that under the Charter the allocation must be made as to each individual volunteer fire department. He claims that if that allocation were made, the City would have paid TOR more money for the fiscal year 2008-2009 and for past fiscal years.

The plaintiff, Matthew Maounis, has failed to prove that Charter Section C8-40-4(b) requires a separate allocation to TOR and requires a separate mill rate for the Turn of River section of the City of Stamford. The plaintiff has failed to prove what the correct amount of that allocation to TOR past and present should have been. This method of allocation within the four Tax Districts has existed in Stamford since its 1949 merger. After each of the volunteer fire department expenses are determined the Big Five expenses are then combined and the combined volunteer expenses are used to determine the mill rate. This method of allocation is not in violation of the City Charter. This court finds that a fair and reasonable reading of the Charter Section C8-40-4(b) along with the past practices, support the City's position. The current and past budget allocations are consistent with Charter Section C8-40-6: "Except as herein provided in Sections C8-40-4 and C8-40-5, the property of the Town Tax District shall be taxed sufficiently to meet, together with all other funds available for the purpose, all the expenses and appropriations for the next fiscal year." The court finds that the total costs of all volunteer fire departments being added together complies with the Charter. The Charter does not contain a provision that mandates a breakdown by mill rate as to the expenses of each individual volunteer fire department. The plaintiff, Maounis, appears to be claiming that the provision of fire service protection is in direct proportion to the real property values upon which the taxes are based. He offered no proof for this novel theory. The plaintiff, Maounis, has failed to sustain his burden of proof on this third claim of diversion.

The issues on the Declaratory Judgment filed by the plaintiff, Matthew Maounis, are found for the defendants, City of Stamford and Dannel F. Malloy. This conclusion finds support in the Summary Judgment decision in Rustici et al. v. Malloy, supra, X02 CV 97-0164460 S. Referring to the language of Charter Section C8-40-4(a) and (b) the court found: "While the section refers to the `net appropriation for the City's contributions for all costs incurred for the operation of the Volunteer Fire Departments . . . `it does so to describe the purpose of taxing the town tax district, and does not in any way guarantee a specific level of appropriation for the volunteer departments or for the company in particular. The plaintiffs, therefore, gain no relief from their claim that inadequate funding of the company violates § C8-40-4."

The court now turns to eight Special Defenses filed by the City.

The First Special Defense alleges that Matthew Maounis lacks standing. Since the issues have been found for the City on Matthew Maounis' Declaratory Judgment claiming there is no need to further consider this Special Defense. In addition, the court has found that Maounis has taxpayer standing.

The Second Special Defense alleges: "Plaintiff Turn of River Fire Department lacks standing with respect to the fourth claim for relief." The fourth claim for relief is addressed to the Declaratory Judgment filed by Matthew Maounis. Since the issues have been found for the City on the plaintiff's, Maounis, Declaratory Judgment count, this court need not deal with the Second Special Defense.

The Third Special Defense claims that the "City's contribution toward the operational costs for Turn of River Fire Department is a discretionary amount, determined in accordance with the City's regular budgetary procedure." The court has found that the City's allocation of $327,762 to TOR and TOR Area Fire Services utilized the City's regular budgetary procedures. The court has not found that the City must undergo an additional budgetary proceeding for the 2008-2009 fiscal year. By approving $327,762 the City has deemed that amount reasonable for fire protection services in the Turn of River area. The court did not find that the City has or does not have an obligation to provide a minimum or fixed level of funding for TOR. The court did not find that the City did not exercise its discretion. The court held that there was no legal authority for the City to allocate $287,762 to TOR conditioned upon TOR agreeing to the City's reorganization plan. The issues on the Third Special Defense are found for the plaintiff, TOR.

The Fourth Special Defense alleges that the amount of the City's contribution toward operational costs is a discretionary matter and the claimed inadequacy is a political question for which the court lacks subject matter jurisdiction. The reverse is true. The City can only act in accordance with its Charter and its enabling legislation. There is no authority that has been furnished to this court for a conditional budget. The issues on the Fourth Special Defense are found for the plaintiff, TOR.

In the Fifth Special Defense the City argues that it would be required to expend funds in excess of the amounts appropriated citing the expenditure limitation of Charter Section C8-30-13. The court by ordering the City to pay TOR $287,762 is not ordering the City to expend any funds other than what was appropriated in the budget process. The conditional appropriation of $287,762 is not permitted by Charter or any other authority. The court has not ordered any funds in excess of funds already appropriated. The issues on the Fifth Special Defense are found for the plaintiff, TOR.

The Sixth Special Defense states: "Funds utilized for providing fire and other emergency services in the areas served by volunteer fire companies are properly chargeable to the tax base for residents in the areas served by volunteer fire companies, which therefore does not constitute a diversion of other inappropriate use of City Revenues." This Sixth Special Defense is only applicable to the plaintiff's, Maounis' claim of diversion. The court has found that the plaintiff, Maounis, has failed to sustain his burden of proof on two of his three claims of diversion. As to the claim of diversion involving the $287,762, the court has already found those issues for the plaintiff, TOR, so that this first claim of diversion made by the plaintiff, Maounis, is moot. The issues on the two other Maounis diversion claims have been found for the City. Thus this court need not deal with the Sixth Special Defense.

The Seventh Special Defense states: "providing Turn of River Fire Department with an additional $280,000 for the fiscal year that started July 1, 2008, would constitute economic waste, and City officials would be violating their fiscal responsibilities if they were to provide additional funding under such circumstances." The court has already found that the $287,762 was properly budgeted for TOR for the fiscal year 2008-2009. The City had no authority to engage in conditional budgeting. The City violated their fiscal responsibilities by entering into conditional budgeting. The issues on the Seventh Special Defense are found for the plaintiff, TOR.

The Eighth Special Defense states that inadequate notice has been given for declaratory relief to "all residents of areas of the City of Stamford served by the volunteer fire departments." This Special Defense is designed to defeat both plaintiffs' claim for a Declaratory Judgment. The court has found that no notice of this lawsuit was given to residents or other volunteer fire departments. Since the issues have been found for the City on the Maounis Declaratory Judgment, either, no further notice is needed. The court has not acted favorably on TOR's Declaratory Judgment. The court finds that the issues on this Eighth Special Defense are moot.

An injunction is an appropriate remedy in a taxpayer suit. Bassett v. Desmond, supra, 140 Conn. 427.

At all times herein, Dannel F. Malloy was acting as the Mayor of the City of Stamford. DeLaurentis v. New Haven, 220 Conn. 225, 242 (1991); Brock-Hill Dairy Co. v. New Haven, 122 Conn. 321, 324 (1937); Bogan v. Scott-Harris, 523 U.S. 44, 55, 118 S.Ct. 966 (1998); Stamford Charter Section C8-30-2.

A Judgment will enter in favor of Turn of River Fire Department, Inc. as against the City of Stamford in the amount of $287,762, in the form of an injunction, that the City of Stamford must raise and pay over to Turn of River Fire Department, Inc. said sum of $287,762 on or before June 30, 2009.

Having entered the above injunctive relief, the plaintiff's, TOR, claims for a writ of mandamus and declaratory judgment are denied.

A Judgment is entered for the defendant, Dannel F. Malloy, on the claims made by the plaintiffs, Turn of River Fire Department, Inc. and Matthew Maounis.

A Judgment is entered in favor of the defendant, City of Stamford, on plaintiff's, Matthew Maounis, claim for a Declaratory Judgment.

The clerk may tax costs in accordance with law.

This Memorandum of Decision is an articulation of this Court's June 24, 2009 Memorandum of Decision (#133.00).