Opinion
HHDCV155040589S
05-04-2016
Debra Cohen v. Office of the Probate Court Administrator et al
UNPUBLISHED OPINION
Filed Date: May 5, 2016
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Antonio C. Robaina, J.
The plaintiff, Debra Cohen, (Cohen) is a former employee of the Office of the Probate Court Administrator, an agency of the State of Connecticut Judicial Branch. She was referred for discipline by the Office of the Probate Court Administrator and attended a hearing before a disciplinary board consisting of a three-judge panel pursuant to the judicial branch policy and procedures manual. The three-judge panel issued a decision which resulted in her termination.
Cohen has brought this action seeking an injunction to prevent the Office of the Probate Court Administrator, the Office of the Chief Disciplinary Counsel, and the Office of the Attorney General from disclosing or disseminating her personal and confidential personnel files and records, which would include the transcript of the heaing referred to above. Cohen alleges that the transcript has been used already in a number of proceedings including a grievance proceeding brought against her, grievance proceedings she brought against members of the Disciplinary Counsel's office and a whistleblower complaint. The transcript was also introduced in response to a claim made by the plaintiff before the Office of the Claims Commissioner.
The defendants have moved to dismiss the action on the basis of sovereign immunity.
The Connecticut Supreme Court has articulated the circumstances under which the state is not entitled to the defense of sovereign immunity. In the matter of Columbia Air Services, Inc. v. Department of Transportation, 293 Conn. 342, 977 A.2d 636 (2009) those circumstances are listed as follows.
(1) when the legislature, either expressly or by force of a necessary implication, statutorily waves the state's sovereign immunity; (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights; and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. Id. at 349. (Citations omitted.)
In this case, there is no claim of legislative action, nor is there any allegation of a constitutional violation. Accordingly, it is the third circumstance noted above which the court should examine. In that regard, the plaintiff's allegations are that the defendants have disclosed materials which violated her right to privacy. In response to that, it is the state's contention that the materials disclosed relate to a matter of public concern, and as such do not constitute a violation of the plaintiff's privacy. The plaintiff must establish that the invasion of privacy consists of a disclosure of any matter that " (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." Perkins v. Freedom of Information Commission, 228 Conn. 158, 172, 635 A.2d 783 (1993).
The plaintiff argues that Perkins is not applicable because the decision to terminate her employment was not related to her job performance as a state official. However, the record does not support that contention. Among the specific findings that the disciplinary panel made, it states that " it is the unanimous decision of this board that the PCA [Probate Court Administrator] has established by clear and convincing evidence that Cohen failed to comply with the reasonable directives of her supervisors and made a deliberate attempt to conceal from both the PCA and the probate courts the fees she had taken from the accounts." (Transcript of October 6, 2014 p. 17.) The panel also found " by clear and convincing evidence that Attorney Cohen repeatedly and blatantly failed to follow the reasonable directives given to her . . ." (Transcript P. 22.)
It is reasonable to conclude from reading the findings of the disciplinary board that the issues before it included, but were not limited to, matters of the plaintiff's conduct which implicated her job as a public official. The underlying concerns of the Probate Court Administrator with respect to the plaintiff's conflict of interest and her actions as fiduciary for several estates were directly related to her position at the probate court administrator's office. Those concerns are clearly articulated in the decision of the disciplinary panel. To suggest that they were not work-related, or otherwise personal in nature is to miss the entire point of the disciplinary proceeding.
In light of foregoing, the defendant's motion to dismiss is hereby granted.