Opinion
No. CV09 4028444
July 6, 2010
MEMORANDUM OF DECISION RE WRIT OF QUO WARRANTO
The plaintiffs, concerned citizens, residents and taxpayers of Fairfield, Connecticut, have filed a writ of quo warranto, dated April 28, 2009. The subject of the controversy is the appointment and hiring of the defendant Gary Weddle, as a "consultant" and "advisor" by Kenneth Flatto, the Fairfield First Selectman, and subsequently by the Conservation Commission of the Town of Fairfield, as a Wetlands Compliance Officer. The plaintiffs claim that the appointment of Weddle to this position is a violation of the Fairfield Town Charter. This is an action brought pursuant to General Statutes § 52-491 which provides:
The named plaintiffs are Edward Bateson, Alexis Harrison, Jeanne Konecny, Philip Meiman, Pamela Ritter, Les Schaffer, Joycelyn Shaw and Jane Talamini.
The Conservation Commission of Fairfield also acts as the Inland and Wetlands Agency for Fairfield.
When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.
The matter was tried before the court on March 24, 2010 and March 25, 2010. The court heard testimony from the following witnesses: Stanton Lesser, the Chairman of the Fairfield Conservation Commission; Gary Weddle, the defendant-respondent; Kenneth Flatto, First Selectman of Fairfield; Annette Jacobson, Conservation Administrator; Philip Meiman, plaintiff-applicant; Thomas Steinke, Conservation Director for the Fairfield Conservation. Commission and the Inland and Wetland Commission; and Richard Saxl, Fairfield Town Attorney.
The complaint of quo warranto alleges that Section 9.1 of the Fairfield Town Charter establishes the office of the Conservation Director and invests the director with the rights and duties of a town officer. Section 10.3.B.(1) of the Charter provides:
Section 9.1 of the Town Charter provides for the position of Conservation Director as an appointed Town officer.
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The Conservation Commission shall have all of the powers and duties conferred by this Charter, by ordinance, and on conservation commissions generally by Section 7-131a of Chapter 97 of the General Statutes.
General Statutes § 7-131a(a) states as follows:
(a) Any town, city or borough, by vote of its legislative body, may establish a conservation commission or the development, conservation, supervision and regulation of natural resources, including water resources, within its territorial limits. The commission shall consist of not fewer than three nor more than eleven members and not more than three alternates, to be appointed by the chief executive officer of the municipality, to serve for terms to be designated by the legislative body establishing the commission. Such alternate members shall, when seated, have all the powers and duties of a member of the commission. The Thief executive officer may remove any member or alternate for cause and may fill any vacancy.
The complaint also alleges that Section 10.3.D of the Charter regarding the director and other employees and consultants, provides:
The Commission shall appoint a Director with the approval of the First Selectman. The Commission shall have the power to engage such employees or consultants as it requires to carry out its duties, including a wetlands administrator and assistants who, subject to the general supervision of the Director, shall enforce all laws, ordinances and regulations relating to matters over which it has jurisdiction and who shall have other such duties as the Commission or the Director may prescribe.
The complaint alleges that Thomas Steinke, at all relevant times, was, and still is, the duly appointed Conservation Director for the Town of Fairfield. On January 15, 2008, the First Selectman of Fairfield, Kenneth Flatto, engaged the services of the defendant Weddle, as a consultant to exercise general supervision over other consultants who had also been hired by Flatto on behalf of the Conservation Commission. The duties of all such consultants and the defendant Weddle, relate to the project known as the Fairfield Metro Center ("Metro Center"). Prior to Weddle's hiring by Flatto, there had been no vote of the Conservation Commission to hire Weddle. The plaintiffs claim that the hiring of Weddle, by Flatto, therefore, was "illegal, null and void," as the Charter allows only the Conservation Commission to engage such consultants to perform duties on behalf of said Commission.
The complaint further alleges that on March 27, 2008, following Weddle's engagement as a consultant by the First Selectman, the Conservation Commission hired Weddle as the Wetlands Compliance Officer, to exercise general supervision over consultants engaged by the Commission, for the Metro Center project. At the same time, the Commission excluded Conservation Director Steinke from exercising his authority of general supervision over the defendant Weddle on the Metro Center Project, although Steinke was allowed to continue his authority, pursuant to the Charter, over all other matters within the jurisdiction of the Commission. The plaintiffs allege and complain that the Commission's engagement of Weddle was illegal, null and void, in that the Commission failed to comply with the Charter's mandatory requirement that the Wetlands Compliance Officer shall be subject to the general supervision of the Conservation Director, as set forth in Section 10.3.D of the Town Charter.
The plaintiffs' complaint concludes by alleging that ever since Weddle's engagement by Flatto and, thereafter, by the Commission, Weddle, by failing to recognize Conservation Director Steinke's exclusive jurisdiction of general supervision over all consultants, including Weddle, has usurped the office of the Conservation Director, as it relates to the Metro Center project. The plaintiffs allege that Weddle continues to exercise the rights, powers and privileges of the office as it relates to the Metro Center project, to the exclusion of Conservation Director Steinke in violation of the Town Charter.
Upon the commencement of the evidentiary hearing regarding the petition for quo warranto, the defendant Weddle, through his counsel, waived any claim of right to the disputed office that he might have as the result of his appointment by the First Selectman, which occurred on or about January 15, 2008. He claims that any rights to retention he may have had to the position by virtue of the disputed appointment by Flatto have concluded, and that issue is now moot. Instead, he claims to be the rightful holder of his office of Wetlands Compliance Officer for the Metro Center project by virtue of his appointment by the Fairfield Conservation Commission at its meeting held on March 27, 2008.
At trial, the court raised the issue of whether or not the Conservation Commission's actions in hiring Weddle on March 27, 2008 could be viewed as a ratification of Weddle's original appointment by Flatto, which the plaintiffs have alleged was illegal. The plaintiffs have stated in their memorandum of law that the Commission could not ratify what they allege was an illegal act. "The ultra vires act of a municipal corporation cannot be cured by ratification." State ex rel Gaski v. Basile, 174 Conn. 36, 40, 381 A.2d 547 (1977). However, the defendant Weddle at trial specifically disclaimed any right to retention of his position by virtue of his appointment by Flatto. He does not claim that the Commission's actions were a ratification of Flatto's appointment. Accordingly, the court in this decision will address only whether the appointment of Weddle by the Commission on March 27, 2008, was in compliance with the provisions of the Town Charter. However, the court has allowed evidence of the circumstances of the initial hiring of Weddle by the First Selectman and the terms, conditions and duties associated with the office Weddle was appointed to. This court will address this evidence as it is relevant to his subsequent appointment by the Commission and the subsequent terms and conditions of that subsequent appointment, as they relate to the duties of the appointed office, and the claimed violation of the Town Charter.
I Standard of Law
A successful quo warranto action unseats an illegal office holder and declares the position vacant. It does not place the rightful claimant into the office. New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 436, 593 A.2d 1383 (1991). In a quo warranto proceeding, the title challenged must be to a public office. Id.; State ex rel. Stage v. Mackie, 82 Conn. 398, 400, 74 A. 759 (1909). There are two criteria to determine whether a governmental position constitutes a public office within the meaning of the quo warranto statute: (1) It must have its source in a sovereign authority speaking through the constitution or legislative; and (2) its incumbent, by virtue of his incumbency, must be vested with some portion of the sovereign power which he is to exercise for the benefit of the public. State ex rel. Neal v. Brethauer, 83 Conn. 143, 146, 75 A. 705 (1910).
In proceedings in the nature of quo warranto, the object is to test the actual right to the office and not merely a use under color of right. Marsala v. Bridgeport, 15 Conn.App. 323, 328, 544 A.2d 191 (1988); State ex rel. Southey v. Lashar, 81 Conn. 540, 545, 542 A. 636 (1899). "It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute." Marsala v. Bridgeport, supra, 328; State ex rel. Gaski v. Basile, supra, 174 Conn. 38; see State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 616, 136 A.2d 792 (1957); State ex rel. Wallen v. Hatch, 82 Conn. 122, 125, 72 A. 575 (1909); State ex rel. Reiley v. Chatfield, 71 Conn. 104, 40 A. 922 (1898); Cheshire v. McKenney, 182 Conn. 253, 256-57, 438 A.2d 88 (1980); see also Beccia v. Waterbury, supra, 456-57.
II Findings of Fact
The Town of Fairfield Conservation Commission is established under Section 10.3 of the Town Charter. Under Sections 10.3.B and 10.3.C of the Charter, the Commission is authorized to act as a Conservation Commission and as an Inland Wetlands Agency pursuant to General Statutes § 7-131a and § 22a-42, respectively. The Commission has powers and duties conferred by the Town Charter, by ordinance and on inland wetlands and watercourses agencies "generally by §§ 22a-42 to 22-44 of Chapter 440 of the General Statutes." See Town Charter § 10.3 C. Town Charter § 10.3 C. (2) authorizes the Conservation Commission to "adopt, amend and promulgate such regulations as are necessary to protect and define the inland wetlands and watercourses." On October 3, 1974, the Commission adopted the Inland Wetlands and Watercourses Regulations of the Town of Fairfield. These Regulations have been amended over the course of years, and the current Regulations were most recently revised on October 6, 2005 with an effective date of October 14, 2005. Section 2 of the Regulations is titled "Definitions." Section 2.1.13, in relevant part, defines "Designated Agent" of the Inland and Wetlands Agency as follows:
Statutes § 22a-42 reads in relevant parts as follows:
(a) To carry out and effectuate the purposes and policies of Sections 22a-36 to 22a-45a, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.
(c) On or before July 1, 1988, each municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of Sections 22a-36 to 22a-45, inclusive. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to Section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits . . . For the purposes of this section, the board or commission authorized by the municipality or district, as the case may be, shall serve as the sole agent for the licensing of regulated activities.
(d) At least one member of the inland wetlands agency or staff of the agency shall be a person who has completed the comprehensive training program developed by the commissioner pursuant to Section 22a-39. Failure to have a member of the agency or staff with training shall not affect the validity of any action of the agency. The commissioner shall annually make such program available to one person from each town without cost to that person or the town . . .
(f) Municipal or district ordinances or regulations may embody any regulations promulgated hereunder, in whole or in part, or may consist of other ordinances or regulations in conformity with regulations promulgated hereunder. Any ordinances or regulations shall be for the purpose of effectuating the purposes of Sections 22a-36 to 22a-45, inclusive, and, a municipality or district, in acting upon ordinances and regulations shall incorporate the factors set forth in Section 22a-41.
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(g) Nothing contained in this section shall be construed to limit the existing authority of a municipality or any boards or commissions of the municipality, provided the commissioner shall retain authority to act on any application filed with said commissioner prior to the establishment or designation of an inland wetlands agency by a municipality.
`Designated Agent' means an individual(s) designated by the Agency to carry out its functions and purposes. Designated agents shall include, but not be limited to, the Conservation Director, Conservation Administrator and Wetlands Compliance Officer . . .
At all times relevant, hereto, the Conservation Director was Thomas Steinke. The Conservation Administrator was Annette Jacobson. The Wetlands Compliance Officer was Marissa Anastasio. These individuals served in a dual capacity for both the Conservation Commission and the Inland Wetlands Agency. They are staff members for both the Commission and the Agency.
Steinke and Jacobson still maintain their positions. Anastasio left her position with the Town of Fairfield in December 2008.
The Fairfield Metro Center Project concerns the development of a thirty-five acre parcel of land for use as a public train station with commuter parking. A portion of the site is to be privately owned and developed and another portion is to be dedicated to open space and wetlands. The project began conceptually in 1998 and 1999 and has proceeded forward through permitting processes, demolition and development stages since that time to the present. The project, or at least, a portion of the project, has also been referred to as the "Black Rock Office Park Third Train Station." The private developer involved in this project is the Black Rock Realty, LLC.
The terms "Fairfield Metro Center" and "Black Rock Office Park Third Train Station" were both used during the taking of evidence. For the purposes of this action, whether the projects are one and the same is not dispositive or significant in the court's decision making process. The terms appeared to have been used interchangeably.
The subject controversy involves the appointment by the Conservation Commission of Gary Weddle as the Wetlands Compliance Officer for the Black Rock Office Park Third Train Station at the Commission's meeting on March 27, 2008. A discussion of the events prior to the appointment of Weddle on March 27, 2008 is useful and necessary to the disposition of the merits of the plaintiffs' quo warranto action.
The relationship between Black Rock Realty and the staff of the Conservation Commission, also working as the staff of the Inland Wetlands Agency, has a history of disagreements surrounding the developer's compliance or non-compliance with the regulations of the Agency. These disagreements, according to witnesses and exhibits for the defendants, have allegedly resulted in delays in the completion of the project. On or about November 13, 2007, representatives of Black Rock Realty, project developers, met with First Selectman Flatto to express their complaints reading what they felt were unreasonable demands by the Conservation staff (Steinke and Jacobson) regarding outstanding issues relating to compliance. The subject of removing Steinke and Jacobson from their duties relating to the project was discussed with the First Selectman.
In a memo dated November 19, 2007, sent to Town Attorney Saxl, Aaron Stauber of Black Rock Realty, LLC. stated that the sole reason that issues were still outstanding is because of Steinke and Jacobson, who have made it clear that they would do and say anything "to kill the deal." The memo further stated that the developers, at their meeting with Flatto, made it clear that unless the First Selectman agreed to their demands for a new working protocol with the Conservation Commission, the developer would not go forward with the project. Stauber stated that this new protocol proposed to Flatto was necessary because Black Rock was not working with a "normal, rational unbiased Conservation Staff." Stauber stated in the memo of November 19, 2007, that it was expected that the new protocol would be in writing and presented to Steinke and Jacobson with the `full understanding, that if they (Steinke and Jacobson) violate the protocol, it will be grounds for removal with `cause.'" The proposed protocol, as set forth in the subject memo, and forwarded by Saxl to Flatto, would be as follows:
1. Conservation Commission (or the First Selectman) would select a third party, unbiased professional consultant (the "Consultant") to act as staff on the entire Fairfield Metro Center project going forward.
2. All matters that would typically be handles by Steinke/Jacobson would now be handled by this third party consultant.
3. The Consultant would answer to and be under the direct control of the Conservation Commission.
4. Steinke/Jacobson would have absolutely nothing further to do with the FMC Project. They would be forbidden to even offer their "recommendations." whether verbally or written.
Thereafter, on December 11, 2007, Attorney John Fallon, representing Black Rock Realty, LLC sent a letter to Saxl, the Town Attorney, again expressing Black Rock's concerns over project delays which were "unnecessarily being imposed by agents of the Town of Fairfield" regarding the permit process. Fallon advised Saxl that the actions of the Town's employees were violations of the obligations of the Town under the relevant Agreement between the parties. The letter then stated that Black Rock would take appropriate legal measures to enforce its rights under the Agreement and would seek damages as a result of improper delays with respect to authorization for the issuance of a building permit by the various Town departments having jurisdiction.
The office of the Town Attorney is established pursuant to § 9.1 A of the Town Charter. The duties of the Town Attorney are set forth in § 9.3 C (1)(2)(3)(4)(5).
On December 14, 2007, at 10:41 a.m., Steinke notified Saxl in writing of a new wetlands violation at the Project by Black Rock Realty. In his written memo to Saxl, Steinke noted that he had met with First Selectman Flatto on December 13, 2007 and had outlined the nature of what Steinke termed a "significant" violation to Flatto and the need for Black Rock to stop work until the violations were resolved. Flatto then recommended to Steinke that Steinke inform Saxl, the Town Attorney, of the matter. Steinke's memo details the nature of the violation and the unsuccessful efforts of he and his staff to meet a representative of Black Rock Realty at the site. Steinke noted that if efforts to resolve the violation by a shortened conservative compliance procedure were unsuccessful, he anticipated that a Cease and Desist Order and Show Cause Hearing would be scheduled for a special Inland Wetland Agency meeting, which could be held as early as December 20, 2007. On December 14, 2007, Saxl notified Attorney Fallon that Black Rock Realty did not have a full permit sign off and "shouldn't be doing more than removing the slab." Saxl informed Fallon, "We need to have Steinke's checklist accomplished by Thursday or there will be enough egg on everyone's face to make matters impossible." Saxl advised Fallon to inform Black Rock Realty of the situation.
On December 19, 2007, Flatto wrote a letter to Steinke, the Conservation Director, Jacobson, the Inland Wetlands Administrator and Stanton Lesser, Chairman of the Conservation Commission. In his letter, Flatto informed them that he was appointing the firm of Redniss and Mead, Inc. to serve as the Agency's exclusive monitor, compliance review officer and coordinator of the work for Black Rock Realty's permit and the Project. He appointed Redniss and Mead to perform all Inland Wetlands Agency functions to ensure compliance with all Inland Wetlands Agency conditions. He based his authority on Sections of the Town Charter, which he claimed that the First Selectman possessed as the town official with administrative and operational oversight and responsibilities over the Conservation Department and the Inland Wetlands Agency.
Despite Flatto's direct testimony that he would never listen to a developer's demands and didn't view Black Rock Realty's threats of litigation as serious, Flatto informed the Conservation Department and Inlands Wetlands Agency staff members, including Steinke and Jacobson, that they were to have no further oversight or involvement in the Project, effective immediately. He informed Lesser, Steinke and Jacobson that Redniss and Mead would report directly to the Chairman of the Commission (Lesser) and the Town Attorney (Saxl) on an "as necessary" basis. The Commission staff was ordered to discontinue any further involvement in the permitting process for the Project. Flatto also informed the staff that this action was necessary to ensure that the staff is not subject to "potential legal exposure should the staff take steps to interfere or seek to adversely affect this process." Flatto additionally informed the staff that he and the Board of Selectmen had concluded that the Agency Director and the staff would no longer be covered under the town's public official's liability or have legal representation provided by the town should "any further work, action or efforts be initiated or conducted by the Conservation Department employees regarding Black Rock's application and permit. Lesser, the Conservation Commission Chairman received a copy of the letter on December 19, 2007. Lesser testified that he did not have any advance notice that the letter was coming, and once he received his copy he did not provide copies to the Conservation Commission members.
Later in Flatto's testimony he stated that he was trying to protect the Town from a lawsuit. Saxl, in his testimony, admitted that he and Flatto decided to "accede" to the demands of the developer because it was the right thing to do for the Town.
Town Attorney Saxl testified that he was seriously concerned regarding Black Rock Realty's threats of litigation. However, he also testified that because Steinke wasn't presently being sued, he didn't need to talk to Steinke about the subject. Saxl then conceded he did have an obligation to inform Steinke, but did not do it until December 20, 2007. Pursuant to the Town Charter Saxl, as Town Attorney, was the legal advisor, counsel and attorney and providing all necessary legal services in matters relating to the Town's interests or the official powers and duties of the Town officials. Upon the direction of the Board of Selectmen, he is to appear for the Town or any of its officers, boards, commissions in any litigation or any other action brought by or against the Town or any Town officials. See Charter §§ 9.3C(1) and 9.3C(4). Neither Flatto or Saxl ever informed Steinke or Jacobson of these threats of litigation until their dismissal from oversight of the project, which occurred on December 20, 2007. Flatto testified that he delayed in informing them until December 20, 2007 because no lawsuits were pending and he didn't think the threats were credible.
On December 20, 2007, Flatto met with Steinke and Jacobson to discuss the contents of his December 19, 2007 letter. There was also a special meeting of the Conservation Commission the night of December 20, 2007. Flatto and Saxl attended the meeting and reviewed Flatto's December 19, 2007 letter with the Commission. Saxl explained the reasons for Flatto's actions, but no vote of the Commission was taken to approve or disapprove of Flatto's actions. Jacobson questioned the decision of Flatto and characterized it as "unusual." Jacobson also testified that she, Steinke and the staff were not aware of complaints regarding the performance of their job duties by Black Rock Realty.
Philip Meiman, a witness and a member of the Conservation Commission from 1997 until November 30, 2007 and Steinke both testified that no representatives of Black Rock Realty ever appeared before the Commission to lodge complaints against the staff regarding this project.
On January 15, 2008, Flatto sent a letter on behalf of himself and Chairman Lesser, to Gary Weddle requesting that he serve as an expert consultant and advisor to the remaining permit review regarding the third train station and development permit. The offer of employment contained a compensation rate in the amount of $150.00 per hour. Flatto claimed authority for his actions pursuant to General Statutes § 22a-42(g) and the Town Charter. Lesser's testimony revealed that Lesser was unaware that this letter was being sent on his behalf, and he had not been consulted by Flatto, despite the fact that Flatto's letter stated that he was acting in concert with the Chairman of the Conservation Commission in offering employment to Weddle. On January 17, 2008 Weddle accepted employment with the Town of Fairfield on the terms proposed by Flatto.
Weddle was a former member of the Conservation Commission from 2002 to 2005. He was Chairman of the Commission in 2003. Saxl testified that Weddle as Chairman and Steinke were in disagreement regarding the site clean-up. Weddle thought that Steinke's demands were to expensive and not economically feasible.
Weddle testified that he thought he was being hired by Flatto with the consent of the Commission.
On March 27, 2008, the Conservation Commission, acting as the Inland Wetlands and Watercourses Agency of the Town of Fairfield, held a special meeting to consider among other items, the appointment of a Wetlands Compliance Officer for the Black Rock Office Park/Third Train Station. It was moved and seconded to appoint a compliance officer for this project. After considerable discussion regarding the legality of the removal of Steinke and his staff from oversight of the project, the motion passed unanimously. It was then moved and seconded that Gary Weddle be appointed as the compliance officer for the Black Rock Realty Project and that Weddle report directly to the Agency. Again discussion ensued regarding the removal of Steinke and his staff from his project. Following an opinion from Saxl, the Town Attorney, that Weddle could act on behalf of the Inland Wetlands Agency, the Commission voted to appoint Weddle as the Wetlands Compliance Officer for the Black Rock Realty Project.
Weddle testified that he legally holds the "office" and disagrees that he is a "consultant."
The Commission's vote was 5 members in favor, 1 against and 1 abstention.
Weddle, at trial, confirmed that he does not work under Director Steinke's supervision, and reports only to the Commission. He agrees that the remaining staff members of the Conservation Department report to Director Steinke. Weddle also testified that he does not supervise anyone. When questioned as to what actions he has taken, to date, as Compliance Officer, Weddle responded that there has not been anything to do. He also admitted he has not taken any enforcement actions in his position as a Wetlands Compliance Officer since his appointment on March 27, 2008, and he has not requested any pay. He did state that he attended several meetings; made an occasional site visit; and had several discussions with Redniss and Mead, Inc. Weddle believes he is "probably an employee" and as such, is required to carry out the duties of the Commission. In performing his "duties" he relies almost solely on information provided to him by Redniss and Mead, which he does not independently verify.
No details were provided regarding any meetings, site visits or discussions with Redniss and Mead during Weddle's testimony on direct or cross-examination.
III Discussion A. Standing
The defendant, again raises the issue of the plaintiffs' standing to bring this quo warranto action. "[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . ." (Citations omitted.) Lewis v. Slack, 110 Conn.App. 641, 643 (2008). "Standing . . . is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Citations omitted; internal quotation marks omitted.) Id., at 643-44. "Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction." Id., 644.
The court has previously discussed the issue of the plaintiffs' standing, at length, in two prior decisions. On the two prior occasions, the court has found that the plaintiffs, as taxpayers of Fairfield, have standing to bring this quo warranto action. "By established case law, a taxpayer, has standing to bring a quo warranto action." Bateson v. Weddle, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09 4028444 (Sept. 18, 2009, Arnold, J.); Bateson v. Weddle, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09 4028444 (Dec.14, 2009, Arnold, J.), citing Carleton v. Civil Service Commission, 10 Conn.App. 209, 216, 522 A.2d 825 1987); Civil Service Commission v. Perkul, 41 Conn.Sup. 302, 308, 571 A.2d 715 (1989), aff'd, 221 Conn. 12; 601 A.2d 538 (1992). "The rationale for standing is that a taxpayer is interested in having the duties annexed to a public office performed by a person who has been legally elected or appointed thereto." State ex rel. City of Waterbury v. Martin, 46 Conn. 479 (1878).
The defendant's arguments in this third attack on standing center around his contention that the plaintiffs' action is actually seeking to prevent Weddle from performing particular acts or duties as a public officer and is not an action challenging his right to hold his public office. It is the defendant's position that quo warranto cannot be used to test the manner in which a respondent carries out his duties, nor to examine the internal structure of government. In support, the defendant repeats his citation for
17 McQuillan, Municipal Corporations, (3rd Rev. Ed., 2004) § 50:7 at 648 ("The writ of quo warranto cannot be invoked to prevent a public officer from performing a particular act or duty of the office."); see also, State ex rel. Hogan v. Hunt, 84 Ohio St., 143, 153, 95 N.E. 666, 669 (Ohio, 1911); State ex rel. Berry v. Tackett, 60 Ohio St.2d 12, 13, 396 N.E.2d 743 (Ohio, 1979). The defendant also cites West Farms Mall, LLC v. Town of West Hartford, 279 Conn. 1, 13-14, 901 A.2d 649 (2006), for the argument that the plaintiffs' status as a taxpayer does not automatically give them standing to challenge improprieties in the conduct of a public office. The defendant argues that the plaintiffs must allege and demonstrate that any allegedly improper conduct caused the plaintiffs to suffer some pecuniary or other great injury. Id.; see also, Seymour v. Region One Board of Education, 274 Conn. 92, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed 526 (2005).
The court again rejects the defendant's arguments as unconvincing. The cases cited by the defendant do not apply to the present action. While the plaintiffs may agree that the performance of duties in Weddle's office are improper if he is not under the supervision of Steinke, the plaintiffs have alleged that the Commission had no authority to engage Weddle for a position exempting from the general supervision of the Conservation Director to begin with. Weddle was appointed and employed as a Wetlands Compliance Officer. The position of Wetlands Compliance Officer does not appear in the Town Charter. Rather, the position is authorized by the Fairfield Inland Wetlands and Watercourses Regulations § 2.1.13 which allows the Agency to engage the services of "designated agents" including a Wetlands Compliance Officer.
At the time the Commission appointed Weddle, the Inland Wetlands Agency already had a Wetlands Compliance Officer, Ms. Anastasio. The plaintiffs argue that if Weddle was engaged as an employee or consultant of the Conservation Commission, acting as the Agency, or a designated agent of the Inland Wetlands and Watercourses Agency, he was required to be under the general supervision of Steinke pursuant to Charter § 10.3.D. This is because the Town Charter specifically provides that the Commission could only engage "employees or consultants" who are subject to the "general supervision of the Director." See, Fairfield Town Charter, § 10.3D. In summary, the plaintiffs' allege that the Commission illegally appointed Weddle as a Wetlands Compliance Officer for the Metro Center Project and removed him from the general supervision of Conservation Director Steinke. This action is not about improprieties in the performance of Weddle's duties or a judicial review of the internal workings of Fairfield town government. Rather, the action seeks a decision by the court as to whether the appointment of Weddle as an additional Wetlands Compliance Officer, not subject to the general supervision of Steinke, the Conservation Director, was illegal, in that it violated the Town Charter.
The defendant's argument that cases such as West Farms Mall, LLC v. Town of West Hartford, supra, 279 Conn. 1 and Andross v. Town of West Hartford, 285 Conn. 309, 324-27, 939 A.2d 1146 (2008), establish that taxpayers have no standing to bring this writ of quo warranto, is unconvincing. Those cases sought injunctive and declaratory relief. See, Bateson v. Weddle, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09 4028444 (September 18, 2009, Arnold, J.). The plaintiffs have standing to pursue this quo warranto action. Here the plaintiffs do not seek injunctive or declaratory relief. They seek to have Weddle removed from his office.
B. Public Office
The court must determine whether the position of Wetlands Compliance Officer, the position to which the defendant was appointed, is a public office, as alleged by the plaintiffs. New Haven Firebird Society v. Board of Fire Commissioners, supra, 219 Conn. 436; State ex rel. Stage v. Mackie, 82 Conn. 398, 400, 74 A. 759 (1909). To determine this question, the court must see if the position meets the two relevant criteria, which are: (1) the position must have its source in a sovereign authority speaking through the constitution or legislative; and (2) its incumbent, by virtue of his incumbency, must be vested with some portion of the sovereign power which he is to exercise for the benefit of the public. State ex rel. Neal v. Brethauer, 83 Conn. 143, 146, 75 A. 705 (1910). "A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by him for the benefit of the public. The individual so invested is a public officer." Kelly v. Bridgeport, 111 Conn. 667, 670, 151 A. 268 (1930); Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 637, 573 A.2d 724 (1990); Mechem on Public Officers, § 1.
The Fairfield Conservation Commission is established under Section 10.3 of the Town Charter. Under Sections 10.3.B and 10.3.C of said Charter, the Commission is authorized to act as a Conservation Commission and as an Inland Wetlands agency pursuant to General Statutes § 7-131a and § 22a-42, respectively. The office of Conservation Director is established pursuant to Charter Sections 1.4.B(3) and 9.1.V. The appointed position of a Wetlands Compliance Officer is authorized by Section 2.1.13 of the Inlands Wetlands and Watercourses Agency's Regulations. This section allows the Conservation Commission acting as the Inland Wetlands Agency to engage the services of "designated agents" including but not limited to the Conservation Director. Conservation Administrator and Wetlands Compliance Officer," to assist the Commission to carry out its functions and purposes.
Again it is noted that § 2.1.13 allows the Agency in order to carry out its functions and purposes, to engage the services of additional designated agents in addition to the Conservation Director, Conservation Administrator and Wetlands Compliance Officer. The defendant's title is Wetlands Compliance Officer for the Metro Center Train Station Project.
The defendant argues that an individual acting as a Wetlands Compliance Officer on behalf of the Inland Wetlands Agency is not a Town Officer or a Town Official since the Charter does not mention the position of Wetlands Compliance Officer. The position of Wetlands Compliance Officer only appears in the Inland Wetlands Agency Regulations.
While the Office of Wetlands Compliance Officer is not specifically mentioned in the Charter, that does not mean it is not a public office. "The failure of a position to be enumerated specifically in a city charter does not require the conclusion that such position is not a public office. All that is required is that the powers and duties of the position have their source in the sovereign authority and that such position be invested with some portion of the sovereign power to be expended for the benefit of the public." Carleton v. Civil Service Commission, 10 Conn.App. 209, 231, 522 A.2d 825 (1987). In addition, Town Charter § 1.4 provides for town officers that are not described in the Charter, but are, in fact, designated by town ordinance or the General Statutes. The offices described in § 2.1.13 exist by virtue of ordinance and the General Statutes. See. General Statutes §§ 22a-42 and 7-193(b).
To comply with General Statutes § 22a-42, the Inland and Wetlands and Watercourses Agency of Fairfield was established by ordinance by the Fairfield Representative Town Meeting on January 28, 1974. The Regulations of the Agency were first adopted on October 3, 1974. They have been revised numerous times with the most recent revision being dated October 6, 2005.
General Statutes § 7-193(b) reads as follows:
(b) Every municipality shall have all municipal officers, departments, boards, commissions and agencies which are required by the general statutes or by the charter. Each municipality may have any municipal officers, departments, boards, commissions and agencies which are specifically allowed by the general statutes or which are necessary to carry out any municipal powers, duties or responsibilities under the general statutes. All such officers, departments, boards, commissions and agencies shall be elected, appointed and organized in the manner provided by the general statutes, except as otherwise provided by the charter or by ordinances or resolutions adopted pursuant to such charter. Any municipality may, by charter or by ordinances or resolutions adopted pursuant to such charter, alter the method of election, appointment or organization of any or all of such officers, departments, boards, commissions or agencies, including combining or separating the duties of each, unless specifically prohibited from making such alteration by the Constitution or the general statutes.
Whether Weddle is a Wetlands Compliance Officer for the Conservation Commission and/or the Inland Wetlands Agency or a "designated agent" of the Inland Wetlands Agency, he holds a public office. Weddle's testimony at trial was he legally holds "the office" of Wetlands Compliance Officer for the Metro Center Train Station Project. He did not agree that he was a "consultant." He agrees that he is "probably" an employee, and he is required to carry out the duties of the Conservation Commission, which includes enforcement powers.
Accordingly, the court finds that the defendant's position is a public office, either as a Wetlands Compliance Officer or a "designated agent" of the Commission. A wetlands compliance officer or a designated agent in the Town of Fairfield, if properly engaged or appointed, is invested with a portion of the sovereign power, which is to be exercised for the public good. Pursuant to § 13.1 of the Regulations a designated agent may act in behalf of the Agency to inspect properties and issue notices of violations or cease and desist orders and carry out other acts or investigations necessary to enforcement of the Regulations. He does not have the limited role that the defendant would like the court to believe. The only condition imposed on Weddle by the Commission/Agency was that Weddle would not be under the general supervision of Steinke, the Conservation Director. If Weddle has limited his participation in the Metro Center train station project as he has testified, it is of his own volition. It is clear by his testimony, that he has done little as the Wetlands Compliance Officer for the Project, relying mostly on information provided to him by others. The decision not to be more pro-active or more involved in monitoring wetlands compliance at the project and to rely on information supplied to him by Redniss and Mead without independent verification from other sources, was an exercise of discretion by Weddle in his official position.
C. The Town Charter
Prior to addressing the remaining issues raised by the parties, it is helpful to discuss the law as it relates to the Town Charter and the mandates requiring that the Charter must be followed. When interpreting the Fairfield Town Charter and the Regulations of the Inland Wetlands and Watercourses Agency, the court is mindful of the rules of statutory interpretation. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Citation omitted.) (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 294-95, 933 A.2d 256 (2007).
General Statutes § 1-2z, reads as follows:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
It is well established that a [town's] charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised." (Citations omitted; internal quotation marks omitted.) West Hartford Taxpayers Ass'n., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983); Palermo v. Ulatowski, 97 Conn.App. 521, 524, 904 A.2d 1278, (2006), cert. denied, 280 Conn. 936, 909 A.2d 961 (2006). "A municipality is a creature of the state. (Citations omitted.) Keeney v. Town of Old Saybrook, 237 Conn. 135, 145, 676 A.2d 795 (1996). "[A] town charter, whether adopted by special act of the General Assembly or under the Home Rule Act; General Statutes § 7-188; constitutes the organic law of the municipality . . . (Citations omitted; internal quotation marks omitted.) West Hartford Taxpayers Ass'n., Inc. v. Streeter, supra, 190 Conn. 742; Palermo v. Ulatowski, supra, 97 Conn.App. 524. A municipal commission's authority is measured and limited by the express language in which authority is given, or, by implication, necessary to enable the commission to perform some duty cast upon it in express terms. Perretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981); Carruthers v. Vumbacco, 4 Conn.App. 168, 171, 493 A.2d 259 (1985)." Civil Service Commission v. Pekrul, 41 Conn.Sup. 302, 312, 571 A.2d 715 (1989), aff'd (per curiam), 221 Conn. 12, 601 A.2d 538 (1992).
"[A] city can do no act . . . unless it is authorized to do so by its charter. (Citations omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 661, 569 A.2d 1122 (1990). "The city's powers are thus limited to those that the charter expressly grants and to those that, by implication, are necessary to the exercise of the powers expressly granted." Id.; see also, Simons v. Canty, 195 Conn. 524, 530, 488 A.2d 1267 (1985); Cheshire v. Mckenney, 182 Conn. 253, 256, 438 A.2d 88 (1980). "If the charter points out a particular way in which any act is to be done or in which an officer is to be elected, then, unless these forms are pursued in the doing of the act or in the electing of the officer, the act or the election is not lawful." State ex rel. Southey v. Lashar, 71 Conn. 540, 546, 42 A. 636; Bredice v. Norwalk, 152 Conn. 287, 292-93, 206 A.2d 433 (1964). "An attempt, by ordinance, to exercise a function authorized by the charter in a manner inconsistent with the provisions of the charter is ineffective and invalid." Connelly v. Bridgeport, 104 Conn. 238, 253, 132 A. 690." Bredice v. Norwalk 152 Conn. 287, 292-93, 206 A.2d 433 (1964).
The issues to be addressed are whether the Commission, despite having the authority to hire designated agents, employees, consultants and assistants, could hire Weddle as a Wetlands Compliance Officer for the Black Rock Office Park Third Train Station, and, if so, could the Commission exempt him from the condition that he be under the general supervision of the Conservation Director.
The Fairfield Conservation Commission acting as the Conservation Commission and the Inland Wetlands and Watercourses Agency is a body of special and limited jurisdiction and has no powers except those given to it by the laws creating it. See, Jones v. Civil Service Commission, 175 Conn. 504, 508-09, 400 A.2d 721 (1978); see also the Fairfield Town Charter and the Regulations of the Inland Wetland and Watercourse Agency. A municipal commission's authority is measured and limited by the express language in which authority is given, or, by implication, necessary to enable the commission to perform some duty cast upon it in express terms. Perretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981); Carruthers v. Vumbacco, 4 Conn.App. 168, 171, 493 A.2d 259 (1985); Civil Service Commission v. Perkul, supra, 41 Conn.Sup. 312. "If the charter points out a particular way in which any act is to be done or in which an officer is to be appointed, then, unless these forms are pursued in the doing of the act or in the appointing of the officer, the act or the appointment is not lawful." State ex rel. Southey v. Lashar, supra, 71 Conn. 546; Bredice v. Norwalk, supra, 152 Conn. 292-93.
The defendant argues that the court is not compelled or permitted to give absolute and unqualified effect to a single section or clause of the Charter and Regulations, however direct, plain and unambiguous the language may be when considered alone, if there are other provisions that are inconsistent with a rigid and unrestricted interpretation. People ex rel. Mason v. McClave, 99 N.Y. 83, 89, 1 N.E. 235, 238 (1885); Brown, State's Attorney, ex rel. Gray v. Quintilian, 121 Conn. 300, 304 (1936). The defendant asks the court to adopt a practical construction of the language of the Charter and its construction by the Conservation Commission as the Inland Wetlands Agency. The defendant asks the court to find that Steinke has under his general supervision only the Wetlands Administrator and the staff of the Conservation Department under a "chain of command" theory. The defendant offers as an example, a scenario where the Commission would retain a consultant for a discreet function, who then would be subject to the Director's general supervision. This, the defendant argues, creates an unworkable situation, despite the language of the Charter § 10.3.D, which subjects employees, consultants, a wetlands administrator and assistants to the general supervision of the Conservation Director.
"In determining the question now before us, the court is to be guided by the established rules of interpretation of written instruments. It is not compelled — indeed, it is not permitted, to give absolute and unqualified effect to a single section or clause of a statute, however direct, plain and unambiguous, considered by itself alone, the language may be, if there are other provisions inconsistent with a literal and unrestricted interpretation of such clause or section, unless the repugnancy is irreconcilable, in which case it is the duty of the court to preserve the paramount intention, so far as it is consistent with the rules of law, although this may lead to the rejection of some subordinate and secondary provision. ( Taggart v. Murray, 53 N.Y. 233.) But fortunately it does not very frequently happen that a statute is incapable of a construction which will give some effect to all its parts." (Emphasis supplied.) People ex rel. Mason v. McClave, supra, 99 N.Y.89.
As noted earlier herein, the position of Wetlands Compliance Officer does not appear in the Town Charter. Rather the position is authorized by § 2.1.13 of the Inlands Wetlands and Watercourses Agency's Regulations. The court notes again that Section 2.1.13 states:
`Designated Agent' means an individual(s) designated by the Agency to carry out its functions and purposes. Designated agents shall include, but not be limited to, the Conservation Director, Conservation Administrator and Wetlands Compliance Officer . . .
Section 2.1.13 does not limit the appointment of designated agents to the Conservation Director, Conservation Administrator and Wetlands Compliance Officer. The Agency has the authority to appoint designated agents as it seems appropriate and necessary to carry out its functions and duties. The Commission acting as the Inland Wetlands Agency was within its authority to appoint and/or hire Weddle as a designated agent or even a consultant, assistant or employee. However, the term Wetlands Compliance Officer is in the singular, and there is no provision for multiple Wetlands Compliance Officers in the Regulations or the Town Charter. The Agency had in authority to hire Weddle as an Wetlands Compliance Officer whose duties were limited only to the Black Rock Office Park Third Train Station, at its duly called special meeting on March 27, 2008. To rule otherwise, would give the Commission a limitless power to engage the services of multiple Wetlands Compliance Officers for every non-residential project in Fairfield, including those projects where developers are dissatisfied with the enforcement efforts of Conservation Director, the Wetlands Administrator, the Wetlands Compliance Officer and the Conservation Department's staff. That is not the intention of the Charter or the Inland Wetlands Regulations or the Town Charter. The court does not find that this interpretation is rigid or inconsistent with the other relevant sections of the Charter or the Regulations.
It is noted that § 10.3 D of the Charter allows the Conservation Commission to hire employees, consultants, a wetlands administrator and "assistants" who would be under the general supervision of the Conservation Director when enforcing all laws, ordinances and regulations. The wetlands administrator, employees, consultants and assistants shall have other such duties as the Commission or the Conservation Director shall prescribe. See, Charter § 10.3 D. Neither the Charter or the Regulations of the Agency give the Commission the authority to engage the services of two or more Wetlands Compliance Officers.
The defendant argues that Weddle has not usurped the office of the Conservation Director, as the plaintiffs claim, and that no evidence was offered that Weddle by his appointment, acts or beliefs usurped Steinke's position as Conservation Director. By his admitted inaction while in office, Weddle has not affirmatively taken any actions regarding the Metro Center train station project other than a few unspecified site visits, several consultations with Redniss and Mead and attendance at a few meetings. Nonetheless, in his position he is invested with the authority to act in behalf of the Agency to inspect properties and issue notices of violations or cease and desist orders and carry out other acts or investigations necessary to enforcement of the Regulations, all with the proviso that he would not be under the general supervision of Steinke the Conservation Director. As stated by the court earlier herein, Weddle does not have the limited role that the defendant would want the court to believe just because Weddle has not been active in the oversight of wetlands compliance issues for the train station project. It is obvious by Weddle's own testimony, that he has done little as the Wetlands Compliance Officer for the Project, relying on unverified information from Redniss and Mead. However, the decision not to be more pro-active or involved in monitoring wetlands compliance at the project was an exercise of discretion by Weddle in his official capacity. In choosing to proceed in this manner it can be said that Weddle has, indeed, unsurped the authority of Conservation Director Steinke by the very use of his discretion not to act.
The defendant argues that the Conservation Director is required to report to the First Selectman and the Conservation Commission with respect to what his duties are and with respect to all matters of administration and policy. See. Town Charter § 9.25. Because of this, the defendant concludes that the Commission has the power to order Weddle to report directly to it and not be under the general supervision of the Conservation Director. The defendant argues that Steinke supervises only the day-to-day, activities of the employed staff, and this is the only logical reading of the Charter. This argument from the defendant is despite his own testimony that he considers himself an employee of the Commission, who if he chooses to bill for his services, is entitled to be reimbursed at the rate of $150 per hour. The court finds that Weddle could only be hired as an employee, designated agent and/or consultant for the Conservation Commission acting as the Inland Wetlands Agency. As noted, he could not be hired as an additional Wetlands Compliance Officer.
Town Charter § 9.25 reads as follows:
A. Appointment. The Conservation Director shall be appointed by the Conservation Commission with the approval of the First Selectman.
B. Duties. The Conservation Director shall have the duties prescribed by the Conservation Commission and the First Selectman.
C. Supervision. The Conservation Director shall report to the First Selectman on matters of administration and operation and to the Conservation Commission on matters of policy.
Having found that pursuant to the Charter and the Inland Wetlands Regulations that Weddle could not be hired as an additional Wetlands Compliance Officer, and, at best, could have been hired as an employee, consultant and/or designated agent and, thus, would not be exempt from the general supervision of the Conservation Director as mandated by Charter § 10.3.D. Charter § 10.3.D allows the Commission to prescribe additional duties to individuals that the Commission engages, but the language of § 10.3.D is clear that such individuals are to be subject to the general supervision of the Conservation Director.
The court notes that despite the finding that Weddle's appointment was illegal, all of his acts prior to this judgment are valid as to any and all third parties and the public during the time he has served, since he has acted de facto. Furtney v. Simsbury Zoning Commission, 159 Conn. 585, 596-97 (1970); 43 Am.Jur. 241, Public Officers § 495.
IV Summary and Orders
The court finds that the singular position of Wetlands Compliance Officer authorized by the Section 2.1.13 of the Inland Wetlands Regulations was already filled by Ms. Anastasio at the time the Commissions appointed Weddle on March 27, 2008. The defendant's appointment to the newly created position of an additional Wetlands Compliance Officer solely for the Black Rock Office Park Third Train Station at the Commission's meeting on March 27, 2008 was illegal, null and void. Weddle's hiring also failed to comply with the Charter's mandatory requirement that the Wetlands Compliance Officer provided for in the Regulations be subject to the general supervision of the Conservation Director per the Town Charter. See. Section 10.3.D. of the Town Charter. At best, the Commission could have hired Weddle, as a designated agent, employee and/or consultant of the Commission to work on the train station project. However, if the Commission-Agency had done so, Weddle would also be subject to the general supervision of the Conservation Director.
The Writ of Quo Warranto is granted. The court orders that Gary Weddle be removed from the office of Wetlands Compliance Officer for the Black Rock Office Park Third Train Station.