Opinion
No. CV06-40011963S
December 7, 2007
MEMORANDUM OF DECISION RE MOTION FOR PARTIAL SUMMARY JUDGMENT #114
FACTS
On November 28, 2006, the plaintiff, Virginia Stewart, filed a two-count complaint against the defendants, the town of Watertown (Watertown), Elaine Adams, Joseph Pawlak, Paul H. Rinaldi, Carl Mancini, Antonio Guerrera, Suzan Plowman, Jack Walton, Robert Kane, Raymond Primini, Charles Frigon and Shirley Dorazio. This action arises out of the defendants' allegedly unlawful termination of the plaintiff's salary on June 19, 2006, upon the plaintiff's failure to report to work beginning on February 22, 2006.
On July 2, 2007, the plaintiff filed an amended complaint pursuant to a request for leave to amend and a memorandum of law in support. In count one of the amended complaint, the plaintiff seeks a writ of mandamus ordering the defendants to resume payment of her salary and benefits from the date of termination of compensation until its restoration and for the remainder of her term as town clerk. Count two alleges a violation of constitutional rights by the defendants, Watertown, the town council and Frigon by depriving the plaintiff of her property rights without due process. Count three alleges the recovery of her lost salary from the date of termination of compensation until its restoration as to defendants, Watertown, the town council and Frigon.
Frigon, one of the defendants, is the duly-appointed town manager.
In response, the defendants filed an answer to the amended complaint on July 25, 2007, asserting two special defenses under 42 U.S.C. § 1983. The plaintiff filed a motion for partial summary judgment on July 30, 2007 as to counts one and three, which was denied by the court on August 21, 2007. This order was vacated, however, on October 1, 2007, upon the plaintiff's motion to reconsider and to allow argument on the motion for summary judgment, filed on September 7, 2007. The defendants also filed an objection to the plaintiff's motion for partial summary judgment and a memorandum in support on August 13, 2007. The motion for partial summary judgment was heard on the short calendar on October 15, 2007.
The defendants assert a special defense to count two, stating that the individual members of the Watertown town council are entitled to qualified immunity from liability. The defendants further claim that municipalities are immune from punitive damages under 42 U.S.C. § 1983.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). All exhibits attached to the plaintiff's motion for summary judgment are authenticated by the affidavits of Stewart and William T. Blake, Jr., and all exhibits attached to the defendants' objection are authenticated by the affidavit of Frigon. Notwithstanding, the failure by either party to object to any evidence submitted operates as a waiver.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id.
In its memorandum of law in support of the motion for partial summary judgment, the plaintiff argues that, as a public official, she is entitled to a salary incident to holding her office and not based upon the performance of services. Noting that the defendants have unsuccessfully taken advantage of the prescribed procedure for removal under General Statutes § 7-22, the plaintiff argues that the only means for termination of payment of compensation has been exhausted and therefore the defendants are under an obligation to pay the plaintiff the according compensation for her position as the town clerk.
The defendants counter that the law does not clearly state that a public official is entitled to compensation as a matter of law if she refuses to perform her duties, and that the plaintiff has received all compensation due her. Further, the defendants argue that a writ of mandamus is inappropriate for an action to recover compensation and that, moreover, summary judgment on counts one and three is inappropriate because there are material facts in dispute.
In determining the existence of a public office, the three essential characteristics are "(1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government." (Internal quotation marks omitted.) Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 637, 573 A.2d 724 (1990). Section 202 of the Charter of the town of Watertown (Watertown Charter) provides that a town clerk is an elected officer and § 2-81 of the Code of Ordinances of the town of Watertown (Watertown Ordinances) states that the town clerk shall be elected every four years. Further, General Statutes § 7-16 et seq. govern the rights and responsibilities of town clerks. Specifically, § 7-22 provides for the removal of town clerks and is the only statutory authority addressing a town clerk's failure to perform her duties.
"The town clerk shall, at the next succeeding regular election for such office and thereafter, be elected for a term of four years from the first Monday of January, succeeding his election." Watertown Charter § 2-81.
Section 7-22 provides in relevant part: "Whenever complaint in writing is made to the state's attorney for any judicial district that the town clerk of any town in such judicial district is guilty of misconduct, wilful and material neglect of duty or incompetence in the conduct of his office, such state's attorney shall make such investigation of the charges as he deems proper and shall, if he is of the opinion that the evidence obtained warrants such action, prepare a statement in writing of the charges against such town clerk, together with a citation in the name of the state, commanding such town clerk to appear before a judge of the Superior Court at a date named therein and show cause, if any, why he should not be removed from office as hereinafter provided . . . If, after a full hearing of all the evidence offered by the state's attorney and by and in behalf of the defendant, such judge is of the opinion that the evidence presented warrants the removal of such town clerk, he shall cause to be prepared a written order to that effect, which order shall be signed by him and lodged with the clerk of the superior court for the judicial district in which such defendant resides." (Emphasis added.)
The town, as "[a] municipality, being a creature of the state, can exercise no powers except those which are expressly granted to it or are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." Middletown v. PG Enterprises Ltd. Partnership, 45 Conn.Sup. 435, 439, 718 A.2d 90 (1998) [ 22 Conn. L. Rptr. 381]. Citing to Middletown, the court in Newington v. American Federation of State, County and Municipal Employees, Superior Court, judicial district of Hartford, Docket No. CV 98 0581296 (November 13, 1998, Fineberg, J.), concluded that had the legislature intended to legislate, it would have done so. "The [c]ourt cannot so legislate." Id. Further, "[a] statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way. An enumeration of powers in a statute is uniformly held to forbid the things not enumerated." State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957).
Statutory authority as well as the language of the Watertown Ordinances and Watertown Personnel Rules and Regulations indicate that a public official, specifically an elected official such as a town clerk, is not an employee. As to collective bargaining, General Statutes § 7-467 defines employee to mean "any employee of a municipal employer . . . except elected officials." Further, § 5-196 defines "employee" for the purposes of the State Personnel Act as "any person holding a position in state service subject to appointment by an appointing authority." Contrasting a public employee with a public official, § 2-302 of the code of ethics section of the Watertown Ordinances, defines "public employee" as a "person employed . . . by the municipality of a political subdivision thereof" and "public official" as "elected or appointed official, whether paid or unpaid or full or part-time." Moreover, the Watertown Personnel Rules and Regulations 1.c. define "employee" generally to mean "a person legally holding a position in the service of the Town." They also state, however, that "[e]xcept as otherwise specifically noted, employees covered by these rules and regulations shall be full time, appointed employees." (Emphasis added.) Neither this definition nor the remainder of the Watertown Personnel Rules and Regulations specifically include elected officials.
"The relation between an officer and the public is not the creature of contract, nor is the office itself a contract so [the public official's] right to compensation is not the creature of contract. It exists, if it exists at all, as the creation of the law, and, when it so exists, it belongs to [the public official] not by force of any contract, but because the law attaches it to the office . . . Unless . . . compensation is by law attached to the office, none can be recovered. Compensation to a public officer is a matter of statute and not of contract and it does not depend on the amount or value of the services performed but is incidental to the office." Sibley v. State, 89 Conn. 682, 685-86, 96 A.2d 161 (1915); see also Kinney v. State, 213 Conn. 54, 62, 566 A.2d 670 (1989), cert. denied 498 U.S. 898, 111 S.Ct. 251, 112 L.Ed.2d 209 (1990) (a public officer's right to compensation "belongs to him not by force of any contract, but because the law attaches it to the office" [internal quotation marks omitted]); see also McKeithen v. Stamford, 149 Conn. 619, 622, 183 A.2d 280 (1962) (the "salary provided by law for a public officer does not arise out of contract and is not dependent on the amount and value of the services rendered, but it belongs to him because the law attaches it to the office he holds" [internal quotation marks omitted]).
Although the distinction between an employee and a public official in Sibley arises from the workers' compensation context, several other jurisdictions have held this to be the law even outside of that context. See Fleming v. Anderson, 48 S.E.2d 269, 273 (Va. 1948) ("[c]ompensation for services performed by a public officer is an incident to the office and belongs to the de jure officer . . . The right to the salary follows the office, as shadow follows the substance" [internal quotation marks omitted]); see also Dalton v. Fabius River Drainage District, 184 S.W.2d 776, 782 (Mo.Ct.App. 1945) ("[t]he rule in most states . . . with respect to compensation for services performed by a public officer, is that such compensation is an incident to the office and belongs to the de jure officer").
The court in Sibley holds that public officials are not eligible for workers' compensation due to their status, because the statutory language requires a person to be a contractual employee to be eligible. Sibley v. State, supra, 89 Conn. 689. Under the current statute, elected and appointed public officials are specifically included to be eligible for workers' compensation. General Statutes § 31-275(9)(vi)
As to compensation of town clerks, General Statutes § 7-34b(b) provides that "[a]ny town may, by ordinance, provide that the town clerk shall receive a salary in lieu of all fees and other compensation provided for in the general statutes which salary shall be fixed by the legislative body of such town." Accordingly, Watertown Ordinances § 2-82(a) provides that "[t]he compensation of the town clerk shall be on an annual salary basis in lieu of the fees provided by the General Statutes of the state." Section 7-34b further states that "[u]pon the adoption of such ordinance the fees or compensation provided by the general statutes to be paid to the town clerk shall be collected by such town clerk and he shall deposit all such money collected by him in accordance with such provision of law as govern the deposit of moneys belonging to such town." With respect to an elected official, § 2 of article eleventh of the Connecticut Constitution defines "compensation" to mean "such official's salary, exclusive of reimbursement for necessary expenses or any other benefit to which his office would entitle him."
As to mandamus, it is well-established that it is "an extraordinary remedy, available in limited circumstances for limited purposes." Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). General Statutes § 52-485 provides that "[t]he Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law." "It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, supra, 253 Conn. 391. "An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). It is "one that enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance." Loda v. Seymour, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 72044 (December 10, 2002, Moran, J.).
"Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity . . . In the exercise of that discretion, special caution is warranted where the use of public funds is involved and a burden may be unlawfully placed on the taxpayers." (Citations omitted; internal quotation marks omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990). A "substantial and undeserved windfall would not . . . [comport] with principles of equity." Amresco New England II, L.P. v. Colossale, 63 Conn.App. 49, 55, 774 A.2d 1083 (2001).
"The plaintiff in an action for a writ of mandamus bears the burden of proving the deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy." (Internal quotation marks omitted.) Honan v. Greene, 37 Conn.App. 137, 143, 655 A.2d 174 (1995). "If a public official or public agency has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act." (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 249, 794 A.2d 1016 (2002). "The duty it compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary." Beccia v. Waterbury, 185 Conn. 445, 453, 441 A.2d 131 (1981) "[M]inisterial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628 (2000).
COUNT ONE CT Page 21065
As to count one in the present case, mandamus is warranted because the plaintiff has met the burden required for the issuance of mandamus. The town's duty to pay this salary is clear, because the plaintiff, still functioning as the current town clerk, is a public official and as such her salary is incident to her office and does not depend upon services performed by her. See Sibley v. State, supra, 89 Conn. 685-86.In their memorandum of law in opposition to the partial motion for summary judgment, the defendants raise the argument that "a municipal position, for certain purposes, may constitute a public office and, for others, mere employment; " Murach v. Planning Zoning Commission, 196 Conn. 192, 200, 491 A.2d 1058 (1985); see also State ex rel. Sloane v. Reidy, 152 Conn. 419, 426, 209 A.2d 674 (1965) (although policemen and firemen may be public officers for certain purposes, they are employees for municipal civil service purposes). The municipal positions addressed in Murach are policemen and firemen and thus appointed officials. The plaintiff, as a town clerk, however, is an elected official and thus falls outside of the parameters of the Murach holding. Because the plaintiff is a public official, she is not governed by the Watertown Personnel Rules and Regulations and their grievance procedures and the defendants were not legally authorized to treat her as an employee.
In considering principles of equity, the plaintiff would not receive an undeserved windfall if she were paid her full salary from the date of termination, June 19, 2006, until the present. When the defendants attempted to remove the plaintiff once litigation was pending against them, John A. Connelly, the state's attorney for the judicial district of Waterbury, did not go forward with removal proceedings, stating that the environmental working conditions at the town hall, which are the plaintiff's reason for her absence from work, constitute a separate dispute which must be resolved between the parties. Not having been removed from office, the plaintiff has a clear legal right to performance of the defendants' statutory duty to pay her salary, retroactive to June 19, 2006, when compensation was wrongfully terminated. A writ of mandamus is, therefore, the correct judicial vehicle to resolve this matter.
The fact that the state's attorney refers to the dispute between the parties as an "employer-employee" dispute is not legally significant as to the question whether the plaintiff is a public official or an employee.
COUNT THREE
As to count three in the present case, the plaintiff is entitled to recover unpaid salary until the payment of salary resumes. Because the town may only act within the scope of express grants; Middletown v. PG Enterprises Ltd. Partnership, supra, 45 Conn.Sup. 439; the defendants in the present case did not have the discretion to suspend or terminate the plaintiff's salary. Suspending or terminating salary falls outside of the scope of § 7-22, which is the only apparent legislative remedy available to the town in the event of the town clerk's failure to properly fulfill the duties incident to her position. The defendants, therefore, acted improperly in terminating the plaintiff's clear legal right to salary by treating her as a regular employee as opposed to an elected official and the plaintiff is entitled to payment of her salary.
CONCLUSION
Therefore, the plaintiff's motion for partial summary judgment as to counts one and three is granted.