Opinion
No. CV06-4009639S
August 8, 2007
MEMORANDUM OF DECISION
I: STATEMENT OF APPEAL
The plaintiff, Clay Johnson, appeals from the final decision of the defendants, the city of Waterbury (city), and the city of Waterbury retirement board (board), awarding him an annual disability pension in the amount of $34,828.28. The plaintiff appeals pursuant to § 35.20 of title three of the final amended ordinance regarding the pension and retirement system of the city of Waterbury.
Section 32.50 provides in relevant part: "[A]ny person aggrieved by any decision of the Retirement Board may, within thirty (30) days from the date when such decision was rendered, take an appeal to the Superior Court for the Judicial District of Waterbury in New Haven county . . . The Court, upon such appeal, and after a hearing thereon, may reverse or affirm, wholly or partly, may modify or revise the decision appealed from, or may remand the matter to the Retirement Board for further proceedings . . ."
II: FACTUAL BACKGROUND
The material facts giving rise to this administrative appeal are undisputed. The plaintiff was hired by the city as a police officer on August 13, 1984. (Return of Record [ROR,] Exhibit 1a, p. 1.) Throughout his employment, the plaintiff was a member of the Waterbury police union, Local 1237, Council 15, American Federation of State County and Municipal Employees, AFL-CIO (Local 1237). (ROR, Exhibit 1b.) A collective bargaining agreement between the city and Local 1237 set the terms and conditions of the plaintiff's employment. (ROR, Exhibit 4.) On or about June 2, 2005, after nearly twenty-one years of employment, the plaintiff applied for disability retirement. (ROR, Exhibit 1a.)
The plaintiff identified back and neck injuries as well as a 2003 diagnosis of hypertension as a basis for disability. (ROR, Exhibit 1a, p. 4.) As part of the process f or applying for disability retirement, the plaintiff underwent four medical examinations to determine the level of his disability. An independent medical exam report authored by Dr. Richard Dyer recommended "disability retirement as a police officer," but also recommended that the plaintiff "seek less demanding employment, such as his current employment as a judicial marshal." (ROR, Exhibit 1c, p. 2.) A second independent medical exam report authored by Drs. James Hill and Peter Rabinowitz recommended that the plaintiff "is unable to perform the full duties of his job as a police officer," but suggested "that after successful rehabilitation of his right knee injury and further evaluation and treatment of his hypertension, Mr. Johnson may be able to return to some type of gainful employment that requires physical activity." (ROR, Exhibit 1d, p. 2.) A third independent medical exam report authored by Dr. James Flint indicated that the plaintiff was totally and permanently disabled from his current occupation, but would not be totally and permanently disabled from other work. (ROR, Exhibit 1e, p. 4.) A final independent medical exam report authored by Dr. Peter Schluman also found that "at the present time" the plaintiff "should not be employed as an active police officer on patrol unless his blood pressure were better controlled." (ROR, Exhibit 1f, p. 3.)
On or about February 9, 2006, the board approved the plaintiff's disability application in the amount of $34,828.28, effective July 1, 2005. (ROR, Exhibit 2a, p. 2; ROR, Exhibit 2b, p. 1.) On or about February 21, 2006, the board mailed to the plaintiff a letter confirming the approval of the plaintiff's application for a disability pension. (ROR, Exhibit 3a.) The plaintiff commenced this administrative appeal through a complaint filed in Superior Court for the judicial district of Waterbury on March 1, 2006, thereafter amended by an amended complaint filed on March 1, 2007. On May 17, 2007, the parties presented their arguments to this court concerning the issues in dispute.
III. JURISDICTION A: Aggrievement
The first threshold issue necessary to determination of the present appeal is whether the plaintiff is aggrieved. "[I]n order to have standing to bring an administrative appeal, a person or entity must be aggrieved . . . Aggrievement is a question of fact for the trial court and the plaintiff has the burden of proving that fact . . . Pleading and proof of facts that constitute aggrievement are essential prerequisites to the trial court's subject matter jurisdiction over an administrative appeal . . . In the absence of aggrievement, an administrative appeal must be dismissed for lack of subject matter jurisdiction . . . The test for determining aggrievement is a two part inquiry: [F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . . To satisfy the aggrievement requirement of [§ ]4-183(a) . . . the [plaintiff] must allege a legally protected interest that is concrete and actual, not one that is merely hypothetical." (Citations omitted; internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 823-24, 826 A.2d 1077 (2003).
In the present case, the plaintiff has alleged that the board erred in determining the amount of his disability pension award, and the defendants have not contested aggrievement. This court finds that the plaintiff has a specific, personal and legal interest in the subject matter of the defendants' decision. The court further finds that the plaintiff's interests were specially and injuriously affected by the defendants' decision. Thus, the plaintiff has satisfied the test for aggrievement. See, e.g., O'Connor v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 4000065 (December 14, 2006, Brown, J.) (aggrievement test satisfied where plaintiff appealed the amount of his disability pension award).
B: Timeliness and Service of Process
This appeal is filed pursuant to § 35.20 of title three of the final amended ordinance regarding the pension and retirement system of the city of Waterbury. The court notes that a final decision regarding the plaintiff's disability pension award was rendered on February 9, 2006, (ROR, Exhibit 2b, p. 1), and that the plaintiff commenced this appeal by service of process on the defendants on February 22, 2006. The plaintiff filed his complaint in Superior Court for the judicial district of Waterbury on March 1, 2006. Consequently, the plaintiff has timely appealed the final decision by filing this administrative appeal within the thirty-day limit imposed by § 35.20, and this is the court of proper jurisdiction. Accordingly, this court finds that service of process was timely and proper.
IV: SCOPE OF REVIEW
The court begins by setting forth the well established standard of review which will govern the analysis of the issues in the present appeal. "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to try the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
"Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . [Constrained by a narrow scope of review] [n]either [the Appellate Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 859-60, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). See also Alexander v. Retirement Board, 57 Conn.App. 751, 757-58, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000).
"The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183(j)(5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection, 253 Conn. 661, 676-77, 757 A.2d 1, cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).
V: DISCUSSION
The plaintiff appeals the final decision on the following grounds as advanced in his March 1, 2007 amended complaint, and as argued in his memorandum of law dated November 27, 2006: That the method for determining the plaintiff's disability pension award is ambiguous and the award did not reflect the intent of the parties; that the board unlawfully applied a 2003 ordinance in determining the amount of the plaintiff's disability pension award; and that the board should have awarded the plaintiff a higher disability pension based on a long-standing practice and is estopped from awarding the plaintiff a disability pension under seventy-six percent. The court will address these contentions in turn.
The plaintiff has alleged the following facts in his complaint, but has not briefed these issues in his memorandum of law and has not provided an evidentiary basis for these contentions: That the board discriminated against the plaintiff and treated him differently than other police officers with similar disabilities who were granted pensions; that the board failed to explain its method for determining the amount of the disability pension on the record; that the board was unlawfully influenced by political and social pressures; that the board breached its fiduciary duty to the plaintiff as established in title three of the Waterbury code of ordinances; and that the board's decision violated the plaintiff's due process rights. "[The court is] not required to review issues that have been improperly presented . . . through an inadequate brief. Analysis, rather than mere abstract assertion, is required to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Kelib v. Connecticut Housing Finance Authority, 100 Conn.App. 351, 353, 918 A.2d 288 (2007). Consequently, because these issues have not been briefed with any analysis, this court holds that these issues have been abandoned. See id.
The board made a legal determination that the plaintiff was entitled to receive a disability pension, and a factual determination concerning the amount of the pension the plaintiff should receive based on the extent of his disability. There are several provisions and statutes which provide guidance to the board when evaluating a retirement application. It is undisputed that the 2000-2005 collective bargaining agreement (ROR, Exhibit 4) contains the terms and conditions governing the retirement and pension benefits to which the plaintiff was entitled. Article twenty-three, section three of the collective bargaining agreement provides in relevant part: "Any police participant who has served as a member of the Police Department for at least fifteen (15) years, who has completed twenty (20) years of service, regardless of age, as a full-time employee of the City of Waterbury shall, at his option, be eligible for retirement, and upon his written request to the Retirement Board of the City of Waterbury shall be permanently retired." Article twenty-three, section four provides in relevant part: "Any police participant who satisfies the eligibility requirements of Section 3 hereof . . . shall be entitled to an annual pension for life in an amount equal to one-half of the amount of compensation . . . received by him, at the permanent rank or grade held by him at the time of his retirement, payable monthly. In the case of any police participant, eligible for his retirement at his option, who shall continue in the service of the Police Department after the said date of eligibility for retirement, there shall be added to such pension, at the time of his permanent retirement, a sum equal to two and one-half (2.5%) percent of his said compensation, for each additional completed year he continues in said service until the date of his permanent retirement. The parties agree that the maximum amount of the service pension prescribed by this Section shall be 100% of base pay and that the maximum number of years of service, for retirement purposes, for the purposes of this section, shall be thirty (30) years of service with the City."
The court notes at the outset that the return of record failed to provide a complete copy of the collective bargaining agreement. (ROR, Exhibit 4.) Nonetheless, the court takes judicial notice of the relevant language of the agreement based upon other Waterbury retirement board administrative appeals applying and analyzing the same collective bargaining agreement provisions at issue in this case. See, e.g., O'Connor v. Waterbury, supra, Superior Court, Docket No. CV 4000065. The court also notes that both parties quote identically from relevant portions of the agreement, and at no time have the parties disagreed concerning the text or content of the agreement.
Section twelve of article twenty-three addresses disability pensions and sets the minimum amount of a disability pension to which the plaintiff was entitled. This section provides in relevant part: "Any police participant totally and permanently disabled during the performance of essential duties pertaining to his employment by the City of Waterbury, irrespective of duration of his employment, shall upon application in a form prescribed by the Retirement Board, be retired for disability, provided proof of total disability is submitted to the Retirement Board substantiated by reports of examinations to be made by at least two (2) impartial competent medical examiners appointed by the Retirement Board . . . The City of Waterbury guarantees that effective upon the signing of this contract no pension payable to a police participant employed by the Police Department on account of total and permanent disability sustained during the performance of essential duties pertaining to employment by the City of Waterbury as provided herein, shall be less than one-half (1/2) the annual rate of regular compensation, plus longevity of the disabled employee at the time of retirement." Section fourteen of article twenty-three states in relevant part: "Policemen who become totally disabled due to heart disease or hypertension, if the Retirement Board determines that they are so disabled, shall receive a disability pension in accordance with Connecticut State Statutes and Retirement Board regulations." It is undisputed that there were no retirement board regulations in effect at the time of the plaintiff's retirement, and the parties agree that the ordinances promulgated in November of 2003 are not applicable in the present case.
General Statutes § 7-433c(a), concerning benefits for disabled policemen, also controls the issues concerning municipal police department disability retirement, and provides: "[I]n the event a . . . regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his temporary or permanent, total or partial disability . . . he . . . shall receive from the municipal or state retirement system under which he is covered . . . the same retirement . . . benefits which would be paid under said system if such . . . disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment . . . The benefits provided by this section shall be in lieu of any other benefits which such policeman . . . may be entitled to receive from his municipal employer under the provisions of . . . the municipal or state retirement system under which he is covered . . . as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his temporary or permanent, total or partial disability."
The workings of the Waterbury police retirement system, the collective bargaining agreement, and the interplay with General Statutes § 4-733c have been analyzed in prior Waterbury retirement board administrative appeals. "An employee with [twenty] years of service who suffers from a permanent and total disability may, at their own option, apply for a service pension or a disability pension. In regards to the service pension, the employee is entitled to receive compensation equal to 1/2 of the employee's annual rate of regular compensation based upon completion of their twentieth year of service. In addition, that employee is entitled to receive an additional 2.5% of the annual rate of compensation at the time of retirement for each additional year they worked for the Police Department beyond their twentieth year of service. If, however, the employee chooses to file for a disability pension, as in the case of the Plaintiff, the employee is entitled, pursuant to Article 23, § 4 of the (collective bargaining agreement], to receive a minimum of 1/2 the employee's annual rate of regular compensation, plus longevity, at the time of retirement. In fact, § 14 of the contract states that a policeman who becomes totally disabled due to heart or hypertension shall receive a disability pension in accordance with state statute and Retirement Board regulations." O'Connor v. Waterbury, supra, Superior Court, Docket No. 4000065.
"Section 7-433c states that the police officer retiring on the basis of a heart or hypertension disability is to be treated the same as if he had received an injury in the line of duty. The case law is very clear that the special nature of the heart and hypertension benefits under § 7-433c is not that the applicant is entitled to a special bonus or lump sum of compensation because of the heart/hypertension determination. The special nature or special circumstances arise from the fact that the applicant need not prove that his/her condition arises out of or is caused by their employment . . . It is still within the defendant Board's discretion to determine what amount of compensation, over and above the minimum amount expressed in Article 2.3, § 4, if any, will be awarded. Section 7-433c also states that the benefits provided by this section shall be in lieu of any other benefits which some policemen may be entitled to receive from his municipal employer under the provisions of the municipal or state retirement system. Thus . . . as in this case . . . the employee is entitled only to a disability pension in lieu of any other benefits under either the collective bargaining agreement or § 7-433c. The only other benefits he would be entitled to would be a service pension, if he had opted to apply for such a pension. The agreement does not contain a provision which allows the retiring employee the right to obtain both a service pension and a disability pension at the same time." (Citation omitted; emphasis added.) O'Connor v. Waterbury, supra, Superior Court, Docket No. 4000065. Consequently, pursuant to case law, statutory authority and the collective bargaining agreement, the board is obligated to award an officer retiring with a disability a pension equaling at least half that officer's rate of compensation, plus longevity, plus a discretionary amount to be determined by the board.
In the present case, the plaintiff argues that the method for determining a disability pension award is ambiguous and that the board's decision was contrary to the intent of the parties. These arguments lack merit. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract." (Internal quotation marks omitted.) Bentz v. Halsey, 54 Conn.App. 609, 616, 736 A.2d 931 (1999). In the present case, after having reviewed the relevant contractual provisions and the applicable statutory and case authority, this court holds that the collective bargaining agreement was very clear on the issue of when the plaintiff was entitled to retire, whether the retirement would be categorized as a service or disability retirement, and the minimum amount of a pension award to which the employee would be entitled. There is no ambiguity present in the terms of the contract, and the method for determining a disability pension is neither arbitrary nor subject to abuse. To the contrary, the collective bargaining agreement imposes strict requirements and guidelines for determining whether an employee is eligible for retirement, whether an employee is disabled, whether the disability makes him eligible for a disability pension, and how to calculate the minimum amount of a disability pension.
Given the statutory guidelines and the rules and regulations imposed by the collective bargaining agreement, this court turns its attention to the disability pension award the plaintiff received. The plaintiff was a city employee for nearly twenty-one years. (ROR, Exhibit 1a, p. 1.) Pursuant to article twenty-three, section three of the collective bargaining agreement, the plaintiff had served for a sufficient time to qualify for retirement. Pursuant to article twenty-three, section twelve of the collective bargaining agreement, the plaintiff was entitled to a disability pension, as he successfully obtained medical examination reports so as to comply with the mandates of this section.
At the time he retired, the plaintiff's annual pay was $55,536 and his longevity pay was $650, which totaled $56,186. (ROR, Exhibit 1b.) Pursuant to agreement which both parties agree was in effect at the time of the plaintiff's application for retirement, the plaintiff was entitled to receive a minimum disability pension award of $28,093, calculated as one-half of the plaintiff's annual pay plus longevity. Based on the plaintiff's years of service, however, he would have been entitled to a pension of $33,833.28, which represents 57.5 percent of his annual pay. (ROR, Exhibit 1b, p. 1.) In exercising its discretion as an administrative agency, however, the board awarded to the plaintiff a disability pension in the amount of $34,828.28, representing 60.5 percent of his annual pay. (ROR, Exhibit 3a.) There is simply no support in the record to support the proposition that, by awarding the plaintiff a disability pension award three percent higher than what was contractually required, the board acted in a manner that was contrary to the parties' intent under the collective bargaining agreement.
B: The board acted within its discretion in determining the plaintiff's disability pension award under article twenty-three, section twelve of the collective bargaining agreement, and there is no evidence in the record to suggest that the board unlawfully applied a 2003 ordinance to the plaintiff's disability pension application.The plaintiff's next contention on appeal is that the board's application of a November 10, 2003 ordinance to the plaintiff's case is illegal and invalid. There is, however, no support in the record for the proposition that the board applied a 2003 ordinance to the plaintiff's case. At the retirement board meeting where the board approved the plaintiff's application for a disability pension, it was resolved: "Motion made to approve the disability pension application of Clay Johnson, based on the terms of the relevant collective bargaining agreement, the retirement system ordinance or charter, as applicable, and on the medical evidence presented, including the opinions of Doctors who performed independent medical exams and the evidence presented by the claimant as to the opinion of his treating physician . . ." (Emphasis added.) (ROR, Exhibit 2b, p. 1.) It is clear that the board is given discretion when determining the amount of a disability pension award. O'Connor v. Waterbury, supra, Superior Court, Docket No. 4000065. Under the terms of the collective bargaining agreement in place, section twelve provides that after a finding of permanent disability as a result of performance of job duties, the employee is entitled to a disability pension not less than "one half the annual rate of regular compensation, plus longevity of the disabled employee at the time of retirement." (ROR, Exhibit 4a.)
According to the plaintiff, § 35.13 of the 2003 ordinance allegedly "caps" disability pension awards at an amount equal to service pensions, plus an award ranging between zero and five percent in recognition of any work-related disabilities. Therefore, the plaintiff argues, because he received essentially a service pension plus an additional amount representing three percent of his salary, the board must have applied the 2003 ordinance when determining his disability pension award.
The mere fact that the plaintiff was ultimately awarded three percent over the amount of his service pension does not demonstrate that the board applied a "cap" set forth in the 2003 pension ordinance. Because the board specifically noted that the plaintiff's disability pension award was based, in part, on the relevant collective bargaining agreement, and because there is no evidentiary basis to suggest that the board unlawfully took into account a 2003 ordinance, it is clear that the plaintiff's argument concerning the applicability of a 2003 ordinance to his case lacks merit.
The plaintiff relies on Downey v. Retirement Board, 66 Conn.App. 105, 783 A.2d 1218 (2001), for the proposition that "a disability pension must be based on the amount that the [plaintiff] would have received had he applied for a service pension and that the retirement board must decide what additional amount should be added to that base amount to compensate the [plaintiff] for his disability." Id., 112. While this is a correct statement under Downey, it is also true that our courts have consistently upheld board actions where such action was based on the medical records and was consistent with the terms of the collective bargaining agreement. See, e.g., Olivero v. Retirement Board of Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 98 0145448 (July 18, 2001, West, J.) (disability pension award of fifty-five percent upheld where board appropriately considered medical reports, collective bargaining agreement and the plaintiff's years of service); Innaimo v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 99 0146439 (August 24, 2000, D'Addabbo, J.) (disability pension award of fifty percent upheld where board considered "the contract, years of service, charter provisions, and other things we look at in making these determinations").
In the present case, as previously stated, the record indicates that the board reviewed and considered ample evidence, including the collective bargaining agreement and medical records. (ROR, Exhibit 2b, p. 1.) Unlike Downey, where the medical reports found the plaintiff to be totally and completely disabled from obtaining some other type of gainful employment, and where the plaintiff initially was denied any additional pension, it is important to note that none of the four medical reports in the present case indicate or suggest that the plaintiff would be unable to gain other employment. To the contrary, these reports suggest that the plaintiff's disability does not preclude him from seeking other employment. See, e.g. ROR, Exhibit 1c; ROR, Exhibit 1e. Consequently, this court holds that the board acted within its discretion under the collective bargaining agreement when determining the plaintiff's disability award, and there is no evidence to support the plaintiff's contention that the board applied a 2003 ordinance when determining the amount of such award.
"[Constrained by a narrow scope of review] [n]either [the Appellate Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 859-60, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). The board's review of the evidence relating the plaintiff's disability retirement application was not arbitrary, illegal or in abuse of its discretion, and there is simply no evidence that the board unlawfully applied an improper ordinance when making a determination concerning the plaintiff's disability pension award.
C: The board was neither obligated to nor estopped from awarding the plaintiff a disability pension award of at least seventy-six percent pursuant to article twenty-three, sections twelve and fourteen of the collective bargaining agreement.The plaintiff argues that the award of a disability pension equal to his service pension plus three percent did not adequately compensate the plaintiff, given the severity of the plaintiff's hypertension and work-related injuries, and a "long-settled practice" of awarding a seventy-six percent disability pension to police officers who retire with work-related disabilities. The board counters that the award was in accordance with section twenty-three of the collective bargaining agreement and was a proper exercise of the board's discretion in determining the amount of a disability pension. This court finds that the plaintiff's claim is without merit.
Section twelve of article twenty-three addresses disability pensions and controls, in part, the amount of a disability pension to which the plaintiff was entitled. This section, as previously stated, gives the board discretion when determining the amount of a pension award, provided that the award is not less than one-half the plaintiff's annual rate of compensation, plus longevity. There is absolutely no language in the collective bargaining agreement to suggest that the board is mandated or required to award police officers retiring with a disability based on heart disease or hypertension a pension representing seventy-six percent of their annual pay. Similarly, no such language can be found in General Statutes § 7-433c. Our case law gives the board the discretion to determine what amount of compensation — if any — above the minimum amount expressed in article twenty-three, section four of the collective bargaining agreement, will be awarded. See O'Connor v. Waterbury, supra, Superior Court, Docket No. CV 4000065.
In exercising its discretion as an administrative agency, the board awarded to the plaintiff a disability pension in the amount of $34,828.28, representing 60.5 percent of his annual pay. (ROR, Exhibit 3a.) Thus, the plaintiff's disability pension represented an amount three percent above what was required based upon the collective bargaining agreement and the relevant statutory authority. Consequently, this court finds unavailing the plaintiff's argument that the board was obligated under the collective bargaining agreement to award the plaintiff a seventy-six percent disability pension.
The plaintiff's final contention on appeal is that the board is estopped from awarding the plaintiff a disability pension of less than seventy-six percent. The board counters that this argument is without merit, and this court agrees. The plaintiff essentially claims that the defendants have a history or practice of awarding a pension to police officers retiring with a disability based on heart disease or hypertension that is seventy-six percent of that officer's annual compensation. The plaintiff has not, however, submitted evidence to support this assertion.
No support for the plaintiff's contention can be found in either the collective bargaining agreement or General Statutes § 7-433c. Moreover, this precise estoppel argument was rejected by the court in O'Connor v. Waterbury, supra, Superior Court, Docket No. CV 4000065. "[A]ny claim of estoppel is predicated on proof of two essential elements: [T]he party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987). "[E]stoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency . . . It is the burden of the person claiming that estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Internal quotation marks omitted.) Id.
The first step in the analysis is to determine whether the defendants did or said anything calculated or intended to induce the plaintiff into believing that with a heart or hypertension disability he would receive a seventy-six percent pension. At the outset it is noted that there is no evidence that the board has a history or pattern of awarding seventy-six percent pensions to officers retiring with a heart disease or hypertension disability. Even assuming, arguendo, that the board has previously awarded a seventy-six percent pension to some officers retiring with heart disease or hypertension, there is no evidence before this court to suggest that the defendants awarded such pensions for the purpose of inducing the plaintiff, or others, into believing that because they suffered from hypertension or heart disease they were entitled to a seventy-six percent pension. Importantly, the plaintiff has not presented evidence or argued that he was induced by any previous board decisions which allegedly awarded seventy-six percent disability pensions. The plaintiff has failed to meet the first element of an estoppel claim.
The second step of the estoppel inquiry concerns whether the plaintiff changed his position in reliance on defendants' alleged statements or actions. In the present case, there is simply no evidence before this court to suggest that the plaintiff changed his position at all in reliance on the defendants' alleged practice of awarding a seventy-six percent pension to officers retiring with heart disease or hypertension disability, and the plaintiff has not argued that he changed his position in reliance on any alleged statements or actions. Consequently, the plaintiff has failed to meet the second element of an estoppel claim.
Finally, the plaintiff has not demonstrated that he acted with due diligence to determine whether there was any provision in the collective bargaining agreement or in Connecticut statutory authority that mandated a seventy-six percent pension for police officers retiring with heart disease or hypertension, or whether such a determination was discretionary. As in O'Connor, there has been no evidence offered to demonstrate that the plaintiff "lacked convenient means necessary to ascertain the full scope of his rights under the agreement." O'Connor v. Waterbury, supra, Superior Court, Docket No. CV 4000065. The plaintiff amassed over twenty years experience as a police officer working for the city, and was represented, at least during part of his employment, through the collective bargaining agreement at issue. He simply failed to exercise due diligence in determining whether a seventy-six percent pension was mandatory for officer with heart disease and hypertension, or was discretionary. Injuries sustained, whether physical from continuing to work, or financial from allegedly receiving an improper pension, cannot fairly be attributed to the statements or actions of the defendants in this case. This court agrees with the analysis of the estoppel issue articulated in O'Connor, and holds that the plaintiff's estoppel argument lacks merit and is not supported by any evidence in the record. In conclusion, the plaintiff has failed to establish that the defendants were either required to award a seventy-six percent disability pension award, or were estopped from awarding a disability pension award under seventy-six percent.
CONCLUSION
Based upon the evidence presented by memoranda, exhibits, and at oral argument, this court finds that the board's decision awarding the plaintiff a disability pension of $34,828.28, representing 60.5 percent of his salary, was neither arbitrary, clearly erroneous nor an abuse of discretion. The evidence demonstrates that the decision was consistent with the applicable collective bargaining agreement in effect at the time the plaintiff applied for disability retirement. Further, this decision was also consistent with the applicable statutory authority and case law, and was a proper exercise of the board's discretion. Accordingly, the plaintiff's appeal is dismissed.