MEMORANDUM OF DECISION

ROBERT C. BRUNETTI, JUDGE.

The plaintiff, a Waterbury Fire Fighter, is appealing both the amount of, and the calculation of the disability pension granted him by the Retirement Board of the City of Waterbury. The parties agree and the court finds the following facts. The plaintiff was hired as a firefighter for the City of Waterbury on March 30, 1987. On October 10, 2003, the plaintiff submitted an application for a Disability Pension based on a Heart and Hypertension Disability. Independent medical reports from Drs. Morley and Dobkin on behalf of the plaintiff indicated the plaintiff to be totally and permanently disabled from his job as a firefighter but is capable of other work. (ROR, Item, 1c and 1d.) On February 11, 2004, the City, through the Retirement Board, approved the plaintiff's application and awarded him pension of fifty-two percent (52%) of his base pay, based on Article XXIII Section 11 of the Collective Bargaining Agreement (hereinafter CBA) in effect for the period of July 1, 1999 through June 30, 2004 between the Waterbury Fire Fighters Association, Local 1339 and the City of Waterbury. (ROR, 5a.) Article XXXIII section 11 of this agreement reads in part, "the employee shall be entitled to, and shall receive, the greater of (a) a service pension, or (b) fifty percent (50%) of the employee's final average Base Pay, in either case subject to an additional amount of up to five (5%), of the employee's final average base pay if awarded by the Retirement Board, but in any event not to exceed seventy-six percent (76%) of the employee's final average base pay." The plaintiff's challenge is that the Board used the wrong CBA to calculate his pension. The plaintiff's position is that the CBA in effect at the time he vested in the pension plan is the one his pension should be calculated on, and that CBA entitles him to a seventy-six (76%) pension. The plaintiff vested in the pension plan after ten years of service on March 30, 1997. Article XXXIII, Section 11 of the CBA in effect for the years 1995 through 1999 reads in part, "a person retiring with a heart and hypertension disability, shall be entitled to, and shall receive a maximum disability pension of seventy-six (76%) of his base pay." The defendant's position is that the CBA that was in effect on the date of his retirement controls his benefits.

The issue, thus as, when a person is a member of a Collective Bargaining Unit and receives a disability pension, which CBA agreement controls the amount of the pension, the one in effect on the date the person vests in the pension plan or the one in effect on the date of his retirement?

SCOPE OF REVIEW

The standard of review in appeals from the decisions of administrative agencies is well established. Judicial review of an agency decision is limited to determining, whether in view of all the evidence, "the agency acted unreasonably, arbitrarily or illegally or abused its discretion . . . [c]onclusions of law reached by an administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts and could reasonably and logically follow from such facts. " Alexander v. Retirement Board, 57 Conn.App. 751 (2000), quoting O'Callaghan v. Commissioner of Social Services, 53 Conn.App. 191, 203, (1999). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The court's function is limited to the examination of the record to determine whether the ultimate decision was factually and legally supported to ensure the board did not act illegally, arbitrarily or in an abuse of its discretion. Ferrier v. Personnel and Pension Board, 8 Conn.App. 165, 167 (1986). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).

FINDINGS

After review of the record and the evidence, the court finds no error in the Retirement Board's action. The plaintiff relies primarily on the Connecticut Supreme Court's decision in Poole v. City of Waterbury, 266 Conn. 68 (2003). In that case a group of retired Waterbury fire fighters and widows of fire fighters sought to invalidate the reduction of certain healthcare benefits by the City of Waterbury. In Poole, our Supreme court held that although the retirees had vested rights to lifetime health care benefits that survived the expiration of the collective bargaining agreement under which they retired, they did not have a vested right to the specific plan in effect at the time they retired. Poole, supra at 81. The defendant argues Poole is not applicable because the plaintiff's in Poole were already retired, whereas the plaintiff here was an active employee at the time of his application for retirement. The court agrees with the defendant. The court finds there are a significant difference between the rights of a retired employee and an active employee. The distinction between retires and active employees are important because as the court acknowledged in Poole, the retiree's benefits were no longer subject to change through collective bargaining, and were therefore, quantifiable. As the court said, there is an "important distinction to be made between retirees and existing City employees . . . To be sure, the benefits accorded existing City employees may vary from one collective bargaining agreement to another, and hence, during the term of their employment such employees may gain or lose certain benefits." Poole at 82, citing Myers v. Schenectady, 244 App.Div.2d. 845, 846-47 (1997), appeal denied, 91 N.Y.2d 812 (1998). The plaintiff was an active employee at the time of his application for his disability pension. As a member of a bargaining unit he thus, could have his benefits improved or reduced through collective bargaining until the time of his retirement, when they would become identifiable. This is the essence of collective bargaining, that the parties have the right to bargain for greater or fewer benefits in each agreement. Thus, the court finds the plaintiff's claim that the CBA in effect is at the time he vested on October 30, 1997 to be unavailing. That agreement expired on June 30, 1999. The court finds no evidence in the 1995 to 1999 CBA that indicates that any of its provisions survive once a successor agreement has been ratified by the parties. The court finds no magic in the vesting date. The vesting date is simply the date upon which the member of a bargaining unit becomes eligible to obtain benefits upon his termination of employment. The court finds that the CBA that is in effect at the time the employee retires or otherwise terminates employment is the one to be used to calculate an employee's retirement benefits. To find otherwise would cause an administrative nightmare. For example, suppose an employee who vested at ten years worked twenty-five more years and there were six separate CBA'S during that period. Under the plaintiff's argument, the employee could use the CBA most favorable to him to calculate his pension, which might have expired twenty-five years earlier, obviously that makes no sense.

The court finds the Retirement Board did not act unreasonably, arbitrarily, illegally or abuse its discretion in awarding the plaintiff a disability pension of fifty-two percent (52%) based on the CBA in effect upon the date of his retirement.

The court having found the CBA that was in effect at the time of his retirement to be controlling need not address the plaintiff's second contention that the 1995 to 1999 agreement mandates a seventy-six percent (76%) pension.

For the foregoing reasons, the action of the Retirement Board is Affirmed, the Plaintiff's Appeal is dismissed.

BRUNETTI, J.