Opinion
No. CV02-0174905
July 13, 2004
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS #107
The plaintiffs, Waterbury Firefighters Association Local 1339 (union), filed an amended complaint against the defendants, the Waterbury Budget Advisory Council (council), Marc S. Ryan, Joseph Carlson II, Vincent S. Miceli and William Cochran (council members) on December 20, 2002. The council was created pursuant to Special Acts 1996, No. 96-3. Section three of the act provides: "(a) There is hereby established a Waterbury budget advisory council. The council shall consist of three members each with significant municipal, accounting, financial or governmental expertise and each of whom shall serve for a term of three years, or until their successors are appointed. The Governor and the Mayor shall each appoint one member and the president pro tempore of the Senate and the speaker of the House of Representatives shall jointly appoint the third member. On expiration of the original term, or if a vacancy on the budget advisory council occurs, a replacement shall be appointed in the same manner as the initial appointments. The city may consult with the budget advisory council in the development of its budget, and shall cause its budget, as approved by the board of aldermen pursuant to the city charter, to be delivered to the budget advisory council the day following adoption. The budget advisory council shall review the budget with respect to determining whether budgeted expenditures are reasonable and accurate estimates of the expected expenditures of the city, and whether budgeted revenues are reasonable and accurate estimates of expected revenues, and if so, whether budgeted revenues are at least equal to budgeted expenditures. (b) The members of the council may be compensated in the manner and amount determined by the Secretary of the Office of Policy and Management. The council shall adopt procedures for the conduct of its meetings and exercise of the powers, duties and functions conferred upon it by this act and shall not be subject to the provisions of chapter 54 of the general statutes. All decisions of the council shall be by affirmative vote of a majority of its members. All expenses of the council shall be paid by the city and may be paid from the proceeds of any deficit funding bonds issued pursuant to this act. (c) The budget advisory council shall have the following powers, duties and functions: (1) It shall review and approve or disapprove the city's annual budget, commencing with the annual budget for the first full fiscal year next succeeding the establishment of the council, regardless of whether any such budget has previously been approved in accordance with the city charter. If the budget advisory council disapproves or fails to approve any annual budget within ten business days after submission by board of aldermen of a budget approved by the board of aldermen, the board of aldermen may by majority vote of its members establish such budget as an interim budget and a tax rate may be established based thereon. Such interim budget shall take effect as of the commencement of the fiscal year and shall remain in effect until the city submits and the budget advisory council approves a modified budget. The city and any of its administrative units shall supply the budget advisory council with such financial reports, data, audits, statements and any other records or documentation as the budget advisory council may require to exercise its powers and to perform its duties and functions. (2) It shall review and approve or disapprove each financial plan prepared by the city in connection with the proposed issuance of deficit funding bonds, which financial plan shall be for a period of not less than three years, which financial plan shall be submitted on an annual basis, and all subsequent modifications on the financial plans submitted by the city. Such modifications shall be submitted at such times as the council shall designate. (3) It shall, after the initial approval of a financial plan and an annual budget, regularly reexamine such plan and budget in consultation with the city and may require the city to provide a modified financial plan or modified annual budget, or both, within such reasonable time period as the council may require, not to exceed sixty days. For purpose of this review, the city shall submit, on a monthly or quarterly basis as requested by the council, reports of its current flow cash revenues and expenditures. If the city fails to make acceptable modifications to the financial plan or annual or interim budget within such time period, the council shall make such modifications as it deems appropriate to such plan or budget. (4) It shall review and approve or disapprove the proposed terms of any deficit funding bonds or interim funding obligations issued in anticipation of deficit funding bonds to be issued pursuant to this act. (d) The budget advisory council shall remain in existence and exercise the powers, duties and functions granted to it by this act only until such time as the operating funds of the city shall have been in balance or with a surplus for three consecutive fiscal years in accordance with audits conducted on a generally accepted accounting principles basis, consistently applied."
The nine-count amended complaint alleges that: (1) the council and the council members (defendants) were negligent (first count); (2) the defendants acted wantonly and recklessly in performing their duties (second count); (3) the defendants breached the duties and responsibilities imposed by the act that created the council and its members (third count); (4) the council members acted negligently (fourth count); (5) the counsel members acted wantonly and recklessly (fifth count); (6) the council members breached the duties imposed on them by the act (sixth count); (7) the defendants' negligent conduct caused a loss of tax revenue (seventh count); (8) the defendants acted wantonly causing a loss of tax revenue (eight count); (9) the defendants breached their duties and responsibilities imposed on them by the act causing a loss of tax revenue (ninth count). The plaintiffs' prayer for relief seeks reimbursement of any and all money paid to the individual defendants as compensation, reimbursement of all monies removed from the plaintiffs' pension fund, interest on all monies loaned to the city of Waterbury, payment to the pension fund and such other relief as the court deems appropriate.
The defendants filed a motion to dismiss all counts of the plaintiffs' complaint and present several arguments regarding the doctrine of sovereign immunity. The plaintiffs filed a timely objection to the motion to dismiss and present arguments to the contrary. The main issue in the present case is, however, whether the council is a state agency because if it is a state agency, sovereign immunity applies to the council and several counts of the plaintiffs' complaint seeking relief from the defendants in their official capacity would be subject to dismissal.
Practice Book § 10-31(a)(1) provides that a "motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. A determination regarding a trial court's subject matter jurisdiction is a question of law." (Citations omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736-37 (2004).
Special Acts (1996), No. 96-3 § (3)(b), provides in pertinent part that the council "shall not be subject to the provisions of chapter 54 of the general statutes." Chapter 54 of the General Statutes, § 4-166 et seq., is the Uniform Administrate Procedure Act. The act also provides in pertinent part: "There is hereby established a Waterbury budget advisory council. The council shall consist of three members each with significant municipal, accounting, financial or governmental expertise and each of whom shall serve for a term of three years, or until their successors are appointed. The Governor and the Mayor shall each appoint one member and the president pro tempore of the Senate and the speaker of the House of Representatives shall jointly appoint the third member." (Emphasis added.) Special Acts (1996) 96-3 § 3(a).
General Statutes § 4-1a provides: "Unless otherwise provided by law, any appointed official of the state, including any person appointed to a board, commission, council, authority, task force, committee or other body, shall serve at the pleasure of the person or body authorized to make the appointment but no longer than the term of office of such appointing authority or until such official's successor is appointed and qualified, whichever is longer." This statute is in Title 4 of the General Statutes entitled "Management of State Agencies" and Chapter 46 entitled "State Appointive Officers." The language of General Statutes § 4-1a leads this court to the conclusion that the council is and was a state agency. In Lewis v. Gaming Policy Board, 224 Conn. 693, 709, 620 A.2d 780 (1993), the court stated that "[a]lthough 4-166(2) excludes a large class of agency decision-making from contested case status, it nonetheless provides that the legislature, rather than the agencies, has the primary and continuing role in deciding which class of proceedings should enjoy the full panoply of procedural protections afforded by the UAPA to contested cases, including the right to appellate review by the judiciary. Deciding which class of cases qualify for contested case status reflects an important matter of public policy and the primary responsibility for formulating public policy must remain with the legislature. State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987); see Kellems v. Brown, 163 Conn. 478, 491, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1973)." Additionally, in Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 489 A.2d 363 (1985), the Supreme Court "concluded that the Superior Court lacked jurisdiction to hear appeals from the claims commissioner because General Statutes 4-164a expressly exempted the claims commissioner from the operation of General Statutes 4-183, the provision of the Uniform Administrative Procedure Act that permits an appeal to the Superior Court. Further, when the commissioner recommends payment of a claim against the state in excess of $7500, it is the legislature, not the court, that reviews the commissioner's decision. See General Statutes 4-159." Cannata v. Department of Environmental Protection, 215 Conn. 616, 625, 577 A.2d 1017 (1990).
In the present case, the plaintiffs seek monetary damages against the defendants in both their official and individual capacities.
In Lagssey v. State, supra, 268 Conn. 732, the court stated that "doctrine of sovereign immunity has been modified by statute and precedent, we have declined to permit monetary awards against the state or its officials in the absence of a statute granting such authority . . . When sovereign immunity has not been waived, the . . . commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165b. The . . . commissioner, if he deems it just and equitable, may sanction suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. General Statutes § 4-160(a). (Citation omitted; internal quotation marks omitted.) Lagssey v. State, supra, 268 Conn. 732. The plaintiffs in the present case did not bring a claim to the commissioner. In addition, "[p]ursuant to § 4-148(a), a claim presented under chapter 53 must be presented within one year after it accrues . . . In this regard, claims for personal injury are considered to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of. General Statutes § 4-148(a)." (Emphasis added.) Lagssey v. State, supra, 268 Conn. 732-33. In the present case, the plaintiff commenced the present action on December 4, 2002, well beyond three years from the acts or omissions of the council.
"The construction of a pleading is a question of law . . . The determination of whether the plaintiff's complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). In Spring, the plaintiff brought an action against the individual defendant, a public defender, in his individual capacity. The attorney general appeared on behalf of the defendant and asserted that sovereign immunity barred the action. The court agreed with the attorney general that `[t]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding.' (Internal quotation marks omitted.) Id. The court then set forth four criteria to determine whether an action is `in effect one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.' (Internal quotation marks omitted.) Id." Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003). The present action meets the four criteria set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975), and Miller v. Egan, supra. As a result, the action of the plaintiffs in all counts is barred by the doctrine of sovereign immunity.
For the forgoing reasons, the defendants' motion to dismiss all counts of the plaintiffs' complaint is granted.
Gallagher, J.