Opinion
No. CV10-6002367 S
June 15, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff, Anthony Gaeta, initiated this mandamus action against the Town of Ridgefield and the Board of Selectman (board) and the Board of Fire Commissioners of the Town of Ridgefield (town, collectively town defendants) seeking reinstatement to the position of assistant fire chief and money damages. The town defendants have filed a motion to strike the amended complaint in its entirety, asserting that the plaintiff has failed to allege facts sufficient to state a claim for a mandamus.
The facts of this case are gleaned from the plaintiff's amended complaint, dated September 29, 2010, and the decision of the Connecticut Supreme Court involving a freedom of information appeal between the same parties and stemming from the same incident involved in this case. Board of Selectman of the Town of Ridgefield v. Freedom of Information Commission, 294 Conn. 438, 984 A.2d 748 (2010). The Supreme Court's decision was attached to the amended complaint as an exhibit, and describes the following facts as "undisputed."
In January 2006, the fire chief for the town of Ridgefield (town) announced his retirement, prompting a search for a new fire chief. At that time, Gaeta was the assistant fire chief and had served with the town's fire department for approximately thirty-six years. Gaeta initially had been considered as a candidate for the position, but, on March 27, 2006, he was informed that he was no longer being considered.
On March 29, 2006, Gaeta was involved in a verbal altercation with the town's public works director regarding Gaeta's elimination as a candidate for the fire chief position. The next day, the town's human resources director informed Rudy Marconi, the town's first selectperson, about the altercation. Marconi and Gaeta had been lifelong friends. Marconi asked the human resources director to "draw up" a stipend to offer to Gaeta for staying on as "acting fire chief" until a permanent replacement could be hired.
On Friday, March 31, Marconi went to Gaeta's office and gave him a memorandum describing the stipend and confirming that Gaeta would become acting fire chief as of the close of business that day . . . During the course of their meeting, both men became angry and used vulgar language. Gaeta threw papers at Marconi, moved toward Marconi and threatened to kill him. In response, Marconi told Gaeta that he was going to call a meeting of the board for 9 a.m. the next morning, that Gaeta should attend, and that Gaeta was "going to have to answer to the [board]." Nonetheless, before Marconi left Gaeta's office, he asked Gaeta "will you take the job as acting chief or not," to which Gaeta responded affirmatively . . .
Immediately after the meeting with Gaeta, Marconi called the second selectperson, Barbara Manners, and described his encounter with Gaeta. Marconi and Manners decided to call an emergency board meeting for 9 a.m. the next morning, April 1, 2006, to "review [Gaeta's] conduct during the past week and during the entire interview process." That evening, an administrative assistant called the other board members and informed them of the emergency meeting, without notifying the press or the public. The board convened at 9 a.m. the next morning, without Gaeta present, and commenced an executive session . . . At approximately 11 a.m., the board ended the executive session, voted to ask Gaeta for his resignation and recessed the meeting.
Gaeta then was summoned to the town hall to meet with the board. When he arrived, he was led to a room where Manners was waiting. She informed him that the board was asking for his resignation and that, if he chose not to resign, he would be placed on administrative leave pending an investigation into his conduct. Gaeta responded that neither option was acceptable to him and that instead, he would retire. The board recommenced the meeting and voted to "accept [Gaeta's] resignation."
(Internal quotation marks omitted.) Board of Selectman of the Town of Ridgefield v. Freedom of Information Commission, supra, 294 Conn. 442-44.
The plaintiff was appointed to the position of assistant fire chief by the first selectman, with the approval of the board. Section 8-4 of the town's charter provides that appointees of the first selectman serve until removed by the first selectman.
The town's employee policy handbook requires that all voluntary resignations be in writing to the department supervisor and copied to the town's human resources department. The plaintiff did not submit this paper work and instead, on April 5, 2006, wrote a letter to the board which stated that he "had not resigned and that he did not intend to resign." The town, however, maintained that the plaintiff had resigned and stopped paying his salary. According to the plaintiff's original complaint, the plaintiff "was effectively forced by threat of the loss of his medical insurance and financial circumstances to accept retirement benefits."
On May 3, 2006, the plaintiff filed a complaint with the Freedom of Information Commission (FOIC) claiming that the board violated the notice provisions of the Freedom of Information Act (FOIA) by improperly conducting the April 1, 2009 special meeting under circumstances not constituting an emergency. The FOIC sustained the appeal, and declared the board's action of accepting the plaintiff's resignation "null and void."
The board appealed the FOIC's decision to the trial court, which affirmed it. On January 5, 2010, the Connecticut Supreme Court affirmed the trial court's and FOIC's decisions finding that the April 1, 2006 meeting of the board violated the FOIA and declaring the board's actions "null and void." The Supreme Court noted that its "analysis focus[ed] solely on whether the April 1, 2006 meeting was procedurally proper, and we are not called on to review any substantive element of the employment decision made by the board during the meeting." (Emphasis in original.) Board of Selectman of the Town of Ridgefield v. Freedom of Information Commission, supra, 294 Conn. 445 n. 6.
On January 12, 2010, the plaintiff's attorney wrote to the town's attorney stating his view that based on the Supreme Court's decision, the plaintiff was entitled to return to work as the assistant fire chief, and asking when and where the plaintiff should report to work. The town's attorney responded on January 22, 2010, stating that it was the town's view that the Supreme Court's decision did not address the plaintiff's employment status with the town and that the plaintiff was not an employee of the town and had no rights to any position in the town.
The plaintiff initiated this mandamus action in February 2010. He asserts that he has a property interest in continued paid employment by the town and is legally entitled to be reinstated to the position of assistant fire chief because he was not properly terminated under the town's charter, he never voluntarily resigned or retired from service, and the town's acceptance of his resignation has been declared null and void by the FOIC and affirmed by the Supreme Court. He seeks an order requiring the town to reinstate him to the position of assistant fire chief as well as damages for lost wages, holiday, vacation and overtime pay, reimbursement for costs of healthcare benefits, and out-of-pocket expenses and interest.
On April 30, 2010, the town defendants moved to strike the action in its entirety asserting that the plaintiff had failed to state a claim for a mandamus. That motion was granted, without opinion, by the court (Marano, J.) on September 14, 2010. On September 29, 2010, the plaintiff filed an amended complaint. Thereafter, on October 10, 2010, the town defendants moved to strike the amended complaint asserting that the new allegations did not cure the legal deficiencies of the original complaint. The plaintiff objected to the motion to strike. The court heard arguments on the motion May 16, 2011.
It is well established that "a party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); Vertex v. Waterbury, supra, 278 Conn. 564. "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007); Hollister v. Thomas, 110 Conn.App. 692, 698, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004). However, "a complaint includes all exhibits attached thereto." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
Although a motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
The town defendants claim that the amended complaint fails to sufficiently allege a claim for a mandamus and therefore must be stricken in its entirety. In particular, the town defendants assert that the plaintiff has failed to allege that the town is under a mandatory duty, imposed by law, to reinstate the plaintiff to the position of assistant fire chief or that the plaintiff has a clear legal right to be reinstated. The town defendants also claim that the plaintiff has failed to allege the unavailability of an adequate remedy at law or equity, failed to avail himself of other available remedies, and cannot obtain money damages in this mandamus action.
The plaintiff claims that he has a clear right to the position of assistant fire chief because the Supreme Court affirmed the FOIC's decision finding the April 1, 2006 meeting illegal and declaring the board's actions of accepting the plaintiff's resignation "null and void." He asserts that the legal effect of that decision was to place him in the position he was in prior to the April 1, 2006 meeting — to return to the position of assistant fire chief. On the issue of adequate remedy, the plaintiff asserts in his brief that he has none, and appears to rely again on the Supreme Court's decision, apparently arguing that that case controls this matter. As to his claim for money damages, the plaintiff claims that even if he had an adequate remedy for damages, he had none as to reinstatement.
"An action for a writ of mandamus . . . is available only in limited circumstances and to achieve limited purposes." Beccia v. City of Waterbury, 185 Conn. 445, 453, 441 A.2d 131 (1981); Lahiff v. St. Joseph's Total Abstinence Society, 76 Conn. 648, 651, 57 A.692 (1904); McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984). It has been repeatedly stated that the writ of mandamus is an "`extraordinary remedy to be applied only under exceptional conditions . . .'" Milford Education Assn v. Board of Education, 167 Conn 513, 518, 356 A.2d 109 (1975), quoting Lahiff v. St. Joseph's, supra, 76 Conn. 651; Light v. Board of Education of the Town of Lebanon, 170 Conn. 35, 37, 364 A.2d 229 (1975); McAllister v. Nichols, supra, 193 Conn. 171. "`Mandamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right . . .'" William Hennessey v. City of Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990), quoting State ex rel. Comstock v. Hempstead, 83 Conn. 554, 561, 78 A. 442 (1910); Boyko v. Weiss, 147 Conn. 183, 186, 158 A.2d 253 (1960).
The writ of mandamus cannot be used to enforce a ministerial duty and requires certain essential elements to be alleged and established by the plaintiff: "(1) that the party against whom the writ is sought must be under an obligation imposed by law to perform some such duty, that is, a duty in respect to the performance of which he may not exercise any discretion; (2) that the party applying for the writ has a clear legal right to have the duty performed; and (3) that there is no other sufficient remedy." (Citations omitted; internal quotation marks omitted.) Milford Education Association v. Board of Education, supra, 167 Conn. 518; Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984); Miles v. Foley, 54 Conn.App. 645, 653, 736 A.2d 180 (1999).
Mandamus is the proper remedy to compel a public official to perform a public duty, including reinstating a public officer to a position from which he has been wrongfully ousted. William Hennessey v. City of Bridgeport, supra, 213 Conn. 658; Beccia v. City of Waterbury, supra, 185 Conn. 453; Venditto v. Auletta, 31 Conn.Sup. 145, 148, 325 A.2d 458 (1974); State ex Rel. Comstock v. Hempstead, supra 83 Conn. 557. The "writ of mandamus will not lie to direct performance of an act requiring the exercise of a public officer's judgment or discretion . . . nor will it lie to review a discretionary action of a public officer or board and compel a different course of action . . ." Light v. Board of Education of the Town of Lebanon, 170 Conn. 35, 37, 364 A.2d 229 (1975).
The plaintiff does not allege whether the position of assistant fire chief has been filled or is presently occupied. Although not raised by the town defendants, there is an issue as to whether this mandamus action is premature or may lie if the position of assistant fire chief is filled and is presently occupied. If the position is presently occupied, a quo warranto action may be necessary. Carleton v. Civil Service Commission of the City of Bridgeport, 10 Conn.App. 209, 215, 522 A.2d. 825 (1987); State ex rel. Comstock v. Hempstead, supra, 83 Conn. 557; Beccia v. City of Waterbury, supra, 185 Conn. 445.
The court agrees that the amended complaint is insufficient to allege a cause of action for mandamus and, in particular, that the plaintiff has been deprived of a clear legal right that the town defendants are legally bound to remedy. The plaintiff's primary claim is that he has a clear legal right to the position of assistant fire chief because the board's actions at the April 1, 2006 meeting accepting the plaintiff's resignation have been declared "null and void" by the FOIC and the Supreme Court. The plaintiff overstates the legal effect of those decisions.
The Supreme Court expressly held that it did not intend to address the substance of the town's employment decision to accept the plaintiff's resignation as assistant fire chief. Board of Selectman of the Town of Ridgefield v. Freedom of Information Commission, supra, 294 Conn. 435 n. 6. Thus, while the Supreme Court affirmed the FOIC's decision declaring the actions of the board null and void, it did not order, or otherwise address, the plaintiff's employment status with the town.
The FOIC is an administrative agency of the state with limited powers as prescribed by statute. Phelps Dodge Cooper Products Co. v. Groppo, 204 Conn. 122, 128, 527 A.2d 672 (1987); Dept. of Public Safety v. Freedom of Information Commission, 103 Conn.App. 571, 577, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). The remedy imposed by the FOIC in this case and relied upon by the plaintiff here — declaring the actions of the board at the April 1, 2006 meeting null and void — can have no greater legal effect than that prescribed by law. The FOIC's order in this case was issued pursuant to General Statutes § 1-206(b)(2). That section of the FOIA authorizes the FOIC to order relief necessary to " rectify the denial of any right conferred by the freedom of information act. The commission may declare null and void any action taken at any meeting which a person was denied the right to attend . . ." (Emphasis added.)
The only rights that could possibly be conferred by the FOIA stem from its authority to issue orders related to access to public records and meetings of public agencies. See generally, General Statutes Chapter 14; Lucarelli v. Freedom of Information Commission, judicial district of New Britain, Docket No. CV105015001S (March 10, 2011, Cohn, J.). In the plaintiff's FOI appeal, he challenged the legality of the April 1, 2006 meeting of the board, arguing the circumstances leading to the meeting did not constitute an emergency and therefore the meeting had not been properly noticed. Under the FOIA, the plaintiff (and the public) had a right to proper notice of that meeting and to attend it. See Conn. Gen. Stat. §§ 1-206, 1-225. Thus, the right conferred by the FOIA in this case, and upheld by the Supreme Court, was the plaintiff's and the public's right to adequate notice of the public meeting of the board held on April 1, 2006. Neither § 1-206(b)(2) of the FOIA, nor any other section of the FOIA, confers any rights related to public employment. Thus, an order of the FOIC under § 1-206(b)(2) declaring that the acts of the board — in holding a public meeting without proper notice — null and void, does not, and could not, confer any right in the plaintiff to reinstatement to his former position. That decision could only confer a right under the FOIA — here the right to a valid and properly noticed meeting of the board. The Supreme Court has so held in a similar mandamus case and stated that the only right a plaintiff could possibly have by way of a mandamus action stemming from being denied a legal and proper hearing on his employment by a public agency would be to an order requiring the board "to hold a hearing in conformity with the statutes." Light v. Board of Education of the Town of Lebanon, supra, CT Page 13747 170 Conn. 35. Accordingly, the decisions of the FOIC and the Supreme Court did not, and were not intended to, create a clear legal right in the plaintiff to reinstatement as assistant fire chief.
Additionally, the plaintiff alleges in the amended complaint that he was hired by the first selectman and therefore, under the town charter, he can only be fired by the first selectman. He has not briefed this issue and thus, it could be considered abandoned. Hurley v. Heart Physicians, P.C., 298 Conn. 371, 378, 3 A.3d 892 (2010). Nevertheless, because this allegation is contained in the complaint, the court will address it and find that it is insufficient to establish that the plaintiff has a clear legal right to be reinstated as the assistant fire chief. The plaintiff has not alleged any facts to establish what remedy, if any, the charter imposes on the town when the town fails to comply with its charter provisions with respect to termination of an employee of the town. Nor does the plaintiff assert any other legal basis for reinstatement based on a violation of the town charter. Under such circumstances, the plaintiff has failed to allege a clear legal right to return to his former position. A mandamus cannot be applied to a doubtful right. Boyko v. Weiss, supra, 147 Conn. 186.
Additionally, even if the plaintiff could allege a clear legal right to reinstatement under the town charter, that right and duty would run to the first selectman and not the town defendants. "It is a fundamental principle that the peremptory writ should run singly [only] to the person whose duty it is to perform the act required. When the purpose is to secure the performance of an official duty by a public officer, the writ should be addressed to him in his official capacity . . . `The prerogative [of the] writ of mandamus is the direct intervention of the State to compel a person, natural or artificial, on whom the law imposes a public duty, to perform that duty . . . If the duty is imposed on an individual holding a public office and can only be performed by the individual, the writ runs against that individual . . .'" (Citations omitted.) Venditto v. Auletta, 31 Conn.Sup. 145, 149, 325 A.2d 458 (1974). The first selectman of the town is not a party to this action. Since a claim under this section of the charter can only be asserted against that officer, and the first selectman is not a party, the claim is legally insufficient.
The town defendants also allege that the amended complaint does not sufficiently allege facts to establish that the plaintiff has no other adequate remedy at law or equity, a necessary element of a mandamus action. The writ of mandamus is "justified only when necessary to supplement the deficiencies of ordinary legal process." Milford Education Association v. Board of Education, supra, 167 Conn. 519. An adequate remedy at law "means a remedy vested in the complainant to which he may at all times resort, at his own option, fully and freely without let or hindrance." Id. Although the plaintiff argues in his memorandum of law opposing the town defendants' motion to strike that he has no adequate legal remedy, the amended complaint contains no such allegations. Without any allegations in the complaint to establish the element of no adequate remedy, the amended complaint fails to state a legally sufficient claim for a mandamus.
The court disagrees with the town defendants' assertion that a mandamus does not apply to employment cases. The cases cited by the town defendants relate to breach of contract claims. There is no allegation in this case that a contract governs the plaintiff's employment and therefore, the cases cited are inapposite here.
Additionally, even if the plaintiff can amend his complaint to allege facts to support his claim that he has no other adequate remedy at law or equity as to reinstatement to the position of assistant fire chief, his prayers for relief for money damages cannot be sustained in this action. In addition to seeking an order of reinstatement, the amended complaint seeks money damages for lost wages, unpaid expenses and unpaid health premiums. Such claims for money damages cannot be pursued or enforced in a mandamus action. Chatfield Co. v. Reeves, 87 Conn. 63, 86 A. 750 (1913); Venditto v. Auletta, supra, 31 Conn.Sup. 151; Nappe v. Town of East Haven, judicial district of New Haven, Docket No. CV054008609S (May 31, 2006, Devlin, J.). Accordingly, the plaintiff's claims for money damages are stricken.
Connecticut General Statutes § 52-485 et seq. governs actions for mandamus. That section does not permit any money damages, except costs.
For the foregoing reasons, the motion to strike is granted.