Opinion
No. HHD CV 08 4036401
December 3, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#104)
This case raises the question, apparently not previously decided in Connecticut, whether a local volunteer fire department which lacks taxing or bonding authority, is a political subdivision within the meaning of the state Occupational Safety and Health Act (OSHA). For the reasons set forth herein, the defendant does not fit within the definition of a "political subdivision," depriving this court of subject matter jurisdiction to issue a warrant of inspection by the commissioner of labor for suspected OSHA violations.
On May 29, 2008, the plaintiff, state of Connecticut commissioner of the department of labor, Patricia Mayfield (DOL), filed an application for a warrant to inspect the defendant Goshen Volunteer Fire Company Inc.'s (VFC) facility. The DOL filed the subject application pursuant to General Statutes § 31-374(a), after it attempted to make an inspection of the firehouse and was rebuffed. The initial attempt to inspect the facility occurred after Scott Horr, occupational hygienist for the occupational safety and health division of the Connecticut department of labor, allegedly viewed a video in which the defendant had simulated a "controlled burn" of an abandoned house for training purposes. According to Horr, the demonstration was performed by members of the VFC, who were not wearing full protective clothing, including a self-contained breathing apparatus. DOL claims that this information gives it probable cause to believe that a hazard exists within the firehouse and seeks the issuance of a warrant to allow them to inspect the defendant's premises.
General Statutes § 31-374(a) provides in relevant part: "In order to carry out the purposes of [the Occupational Safety and Health Act] the commissioner, upon presenting the appropriate credentials to the employer, is authorized (1) to enter without advance notice . . . (2) to inspect and investigate, during . . . reasonable times and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and the materials therein and to question, privately, any such employer or employee. Whenever the commissioner, proceeding pursuant to this section, is denied admission to any such place of employment, he shall obtain a warrant to make an inspection or investigation of such place of employment from any judge of the Superior Court . . ."
By motion filed on August 13, 2008, the VFC seeks to dismiss the warrant application, claiming lack of subject matter jurisdiction. Specifically, the VFC claims that § 31-374(a) is not applicable to it because it is not within the definition of employer under OSHA, and therefore, the court lacks subject matter jurisdiction to issue such a warrant.
The plaintiff maintains that § 31-374(a) applies to the VFC, as § 31-367(d) of the Occupational Safety and Health Act defines an "employer" as "the state and any political subdivision thereof." It is the DOL's position that VFC is a political subdivision. On August 18, 2008, a hearing was held before the court upon the motion to dismiss, at which the VFC presented evidence. The DOL elected to forego evidence.
The plaintiff did not object to proceeding on the motion to dismiss on such short notice.
Based upon the evidence, the court finds that the VFC is a non-profit, non-stock membership corporation with its own bylaws and constitution. Members of the VFC elect its own officers, who are responsible for all the operations of the VFC. It has no taxing or bonding powers and is not a fire district, nor was it established by state legislation. The town of Goshen does not own or operate the VFC, but the town has a contract with the VFC, entered into by the town's board of fire commissioners, who are authorized to contract "with any volunteer fire company . . . within the town . . . or outside thereof" for fire protection. Under its oral agreement with the VFC, the town can opt out of its contract with the VFC on sixty days notice.
The VFC is an unpaid volunteer unit whose members receive no salary or pension from the town, although they do receive workers' compensation under § 7-314a(a). Many of the VFC's fire and emergency vehicles are town financed, but some were purchased by the VFC. The VFC also leases its land (which it previously gave to the town) and the building upon it from the town for one dollar per year. The VFC raises its own funds through fundraisers, donations, bequests and federal grants. While the VFC is the primary responder for fire suppression in Goshen and receives the initial 911 calls for the town some sections of Goshen have another responder available to them. Although the VFC is listed on the town's website, it is not at the VFC's request.
Some of the federal grants flow directly to VFC, and the state acts as a conduit for others.
The 911 calls are distributed under a protocol for Litchfield county.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
In its memorandum of law in support of the motion to dismiss the application for a warrant, the VFC asserts that the term "political subdivision" is not defined under the Connecticut Safety and Health Act, but that the term has been defined in General Statutes §§ 7-195, 28-1 and 33-1002 (16). Based on these statutes, the VFC argues that the term "political subdivision" refers to entities that have the qualities of a body politic with the ability to levy taxes, make appropriations and govern itself.
General Statutes § 7-195, a statute which deals with the consolidation of government, defines a political subdivision as "a city, borough or district within a town."
General Statutes § 28-1(12), part of the department of emergency management and homeland security statutes, defines a political subdivision as "any city, town, municipality, borough or other unit of local government."
General Statutes § 33-1002(16), which provides definitions for the non-stock corporations chapter, defines a governmental subdivision to include "authority, county, district and municipality."
The VFC also points to prior case law which defines a political subdivision, albeit in different contexts. In State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263, 231 A.2d 539 (1967), the court was presented with the task of defining the term "political subdivision" for the purposes of § 9-167a, a statute dealing with minority representation in state and local government. There, the court held that while the term had not been defined in the context of § 9-167a, "[it had,] however, defined a similar phrase in the construction of [General Statutes § 49-41,] which provided that before any contract exceeding $1,000 for the construction of a public work of the state 'or of any subdivision thereof, is awarded to any person, that person shall furnish to the state or subdivision a bond for the protection of persons supplying labor or material for the work." Id. "The word 'state' means 'a body of people occupying a definite territory and politically organized under one government' . . . On this theory, the subdivision of a state would be a body of people less in number than the total number in the state, politically organized, and occupying a part of the territorial area of the state — hence a city, borough or town . . . The term 'political subdivision' is broad and comprehensive and denotes any division of the [state] made by the proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out a portion of those functions of the [state] which by long usage and the inherent necessities of government have always been regarded as public." (Citations omitted; internal quotation marks omitted.) Id.
The legislature subsequently replaced the term "subdivision" with "municipality" in § 49-41(a) pursuant to Public Acts 2005, No. 05-193, § 1.
The VFC also cites the case of Dugas v. Beauregard, 155 Conn. 573, 578, 236 A.2d 87 (1967), where the court looked to define the term "political subdivision" for the purposes of § 7-195, a statute which dealt with the consolidation of local units of governments. There, the court noted that "[t]he attributes which are generally regarded as distinctive of a political subdivision are that it exists for the purpose of discharging some function of local government, that it has a prescribed area, and that it possesses authority for subordinate self-government through officers selected by it." Id.
The DOL claims that because the term "political subdivision" is not defined in the Occupational Safety and Health Act, the court should look to the state Freedom of Information Act, arguing that the definition of a "political subdivision" under § 31-367(d) is the functional equivalent of a "public agency" as defined in the Freedom of Information Act, General Statutes § 1-200(1)(A). Consequently, the DOL argues that the court should follow the four-part "functional equivalent test" used in Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553-54, 436 A.2d 266 (1980), wherein our Supreme Court found that Woodstock Academy, a "hybrid public/private entit[y]," was a "public agency" for the purposes of the Freedom of Information Act. In finding that the school was a public agency, the court employed the functional equivalent test, which consisted of four criteria: "(1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government." Id.
General Statutes § 1-200(1)(A) defines a "public agency" as: "Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions . . ." (Emphasis added.)
It is the DOL's position that under the four-part test, the VFC is indeed a "public agency," and as a result it should be considered a "political subdivision" subject to § 31-374(a). The court does not agree. The mere fact that the definition of a "public agency" in the Freedom of Information Act includes "political subdivisions" does not mean that the two terms are interchangeable. The terms "public agency" and "political subdivision" are not synonymous.
Had the legislature wished to broaden the scope of the definition of "employer" under OSHA to include any "political agency," it could easily have done so. Instead, in a statute passed some six years after both Dugas and Mitchell, the General Assembly chose to use the term "political subdivision."
In looking at the statutes that define "political subdivision," namely, §§ 7-195, 28-1 and 33-1002(16), it is apparent that the term refers to localized units of government such as counties, cities, towns, municipalities and boroughs. This interpretation is also consistent with the holdings of Mitchell and Dugas. It is also consistent with the constitution of Connecticut, article ten, § 1, which provides that "[t]he General Assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions." (Emphasis added.) This clause of our constitution validates the proposition that the term "political subdivision" refers to local units of government such as towns, cities or boroughs and not to mere public agencies.
The VFC does not fall within the meaning of "political subdivision," as the VFC is not such a unit of government, but rather is an organization separate and distinct from the town of Goshen. It is not state created and has no power to tax or bond. The VFC is an independent corporation which contracts its services to the town of Goshen.
As the VFC is not a political subdivision, it cannot be considered an "employer" for the purposes of § 31-367(d). As a consequence, the VFC is not within the scope of § 31-374(a), depriving this court of the subject matter jurisdiction required to issue a warrant of inspection under the statute. The motion to dismiss is granted.