Opinion
No. CV 04 0093159S
August 17, 2004
MEMORANDUM OF DECISION
This is an application for a temporary injunction in connection with the plaintiff's suit against the defendant, New Milford Ethics Commission ("the Commission"), contesting a finding by the Commission that there is probable cause that the plaintiff violated the Code of Ethics of the Town of New Milford ("the Code"). For the reasons given, the application is denied.
The plaintiff, John Spatola, is an elected member of the New Milford Board of Finance. The Code is a duly enacted ordinance of the Town of New Milford. The Commission was established by Section 6B-4 of the Code under the authority of C.G.S. Section 7-148h. On February 16, 2004, one John Kane filed with the Commission a complaint against the plaintiff alleging violations of the Code. The Commission conducted a confidential investigation and, by letter dated May 4, 2004, notified the plaintiff that: "[A]t the termination of the investigation into complaint 04-02 the Commission found probable cause of violations of Sections 6B-3(e) and 6B-3(h) of the Code."
Section 6B-4(a) of the Code states: "Pursuant to Section 7-148h of the Connecticut General Statutes, there is hereby created an Ethics Commission for the purposes of administration of this chapter."
C.G.S. Section 7-148h(a) states: "Any town, city district, as defined in section 7-324, or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any official, officer or employee of such town, city, district or borough. The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause. Any board, commission, council, committee or other agency established pursuant to this section may issue subpoenas or subpoenas duces tecum, enforceable upon application to the Superior Court, to compel the attendance of persons at hearings and the production of books, documents, records and papers."
The Commission's finding of probable cause has now been made public. The Commission wishes to proceed under the further provisions of the code to conduct a public hearing to make a determination of whether there have been violations of the Code. The plaintiff's suit challenges the procedures followed by the Commission, seeks to void the finding of probable cause, and seeks to prevent the Commission from holding a public hearing on this matter. The plaintiff also seeks a temporary injunction to prevent the public hearing until this case can be fully heard on the merits.
The standards for issuance of a temporary injunction are well known. "In general, a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted she will suffer irreparable harm for which there is no adequate remedy at law. In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction." (Citations and internal quotation marks omitted) Moore v. Ganim, 233 Conn. 557, 616, footnote 25 (1995). "The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Citations and internal quotation marks omitted.) Clinton v. Middlesex Mutual Assurance Co., 37 Conn.App. 269, 270 (1995). "It is not the court's function at this stage of the litigation to fully try the facts. That will be the function of the ultimate trial. The task of the court here is simply to determine whether the facts exist which make the issuance of a temporary injunction appropriate." New England Eyecare v. New England Eyecare, Superior Court, Judicial District of Waterbury, Docket No. 099465 (Jan. 18, 1991) (Blue, J.) ( 3 Conn. L. Rptr. 724).
The plaintiff's first argument in support of his motion for temporary injunction is that Section 7-148h does not authorize the Commission to conduct public hearings. The plaintiff relies primarily upon Simons v. Canty, 195 Conn. 524 (1985). In that case the Supreme Court considered a charter provision of the Town of Watertown which provided a right of recall of elected officials. The Town Clerk refused to certify a petition for recall on the ground that the town had no statutory authority to adopt procedures for recall of municipal officials. The Court agreed with the Town Clerk and affirmed the denial of a writ of mandamus. The court first considered the sources of municipal power. "The sources of municipal authority are well defined. Municipalities, because they are creations of the state, have no inherent legislative authority. They can wield only those powers expressly granted to them by the legislature; or necessary to the exercise of an expressly delegated power. The constitutional provision cited by the plaintiffs merely restates the basic rule: The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions. In sum, the sole font of municipal authority is legislative delegation in the form of a general statute or a special act adopted prior to the effective date of article tenth. The rules that determine whether a power has been delegated to a municipality are also well established. The legislature has been very specific in enumerating those powers it grants to municipalities. An enumeration of powers in a statute is uniformly held to forbid the things not enumerated. Delegation of authority to municipalities is therefore narrowly construed. In determining whether a municipality has the authority to adopt a challenged charter provision, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment." (Citations and internal quotation marks omitted.) Id. at 529.
The Court rejected arguments that the power of recall can be implied from the duty to promote good government or from various other municipal powers. "A fortiori, if the legislature had intended to confer the recall power on municipalities it would have done so explicitly. We have consistently rejected claims that municipalities may exercise important functions based solely on their power to promote good government; and we decline to imply recall as a necessary, though unstated, municipal power." Id., at 532.
Determining whether Section 7-148h authorizes the Commission to hold public hearings would seem to be an easy matter. But, in fact, the statute as it now exists is ambiguous. The language seems, upon initial reading, only to authorize the creation of municipal ethics commissions to conduct confidential investigations, in accordance with the procedural requirements of Section 1-82a(a) to (e), to determine if there is probable cause of unethical conduct. There is no explicit language authorizing public hearings. However, the last sentence of the section refers to hearings and to the power to issue subpoenas. This creates an ambiguity as to whether public hearings are authorized.
Because there is an ambiguity, it is unnecessary to consider the impact of Public Act 03-154. Instead, the court must apply the principles set forth in State v. Courchesne, 262 Conn. 537, 544 (2003). "The process of statutory interpretation involves a reasoned search for the intention of the legislature. In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citations omitted.) Id. at 544.
Public Act 03-154 states: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
In order to determine the meaning of Section 7-148h it is necessary to look at the legislative history of statute as it has been amended over the years. Section 7-148h was enacted as Public Act 79-618. At the time of enactment the statute read as follows:
"Any town, city or borough may, by charter provision or ordinance, establish a board, commission, council committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any municipal official, officer or employee. Any such board, commission, council, committee or other agency established pursuant to this section may issue subpoenas or subpoenas duces tecum, enforceable upon application to the superior court, to compel attendance of persons at hearings and the production of books, documents, records and papers."
The legislative history of Public Act 79-618 is extensive. It reveals a clear intent to create statutory authority for the creation of local ethics commissions to hold hearings on ethics complaints and to subpoena documents and people to those hearings. The history makes clear that many towns and cities had already created ethics commissions, without explicit statutory authority, and that these committees were without explicit statutory authority to issue subpoenas. The legislature intended to clarify this situation by providing specific statutory authority for the creation of ethics commissions with the power to issue subpoenas.
Clearly, the statute anticipated that a commission formed pursuant to this statute would hold hearings. Clearly, these hearings would be public hearings. C.G.S. Section 1-225. There was no ambiguity in Section 7-148h from 1979 until its amendment in 1989.
By virtue of Public Act 89-229, Section 7-148h was amended by the addition of the following language: "The provisions of subsections (a) to (e), inclusive of Section 1-82a shall apply to allegations before any such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause."
Within the legislative history of the 1989 amendment is the following statement by Representative Godfey, who moved the acceptance of favorable report of the joint Committee on Government Administrations and Elections, and passage of the bill containing the amendment:
"The second part of the bill extends to Municipal Ethic Commissions the confidentiality provisions for the probable cause investigation. When the general Assembly created the State Ethics Commission in 1977 the commission was given some broad investigative powers, including subpoena power and the use of State Police services. It sits, in effect, as a quasi-judicial body and makes determinations on complaints and listens to respondents who answer them. The decision to extend the kind of rights due in judicial proceedings was also made because of the quasi-judicial nature of this body.
It includes the need to find a probable cause on the complaint before proceeding with the full hearing and the decision making process. The probable cause investigation is kept confidential. This protects a respondent or potential respondent from meritless or frivolous claims and trial by press release. When the General Assembly extended to municipalities the power to create local Ethics Commissions, it did not include this important exception, however, and this bill serves to rectify this situation." (Emphasis added.)
Considering the purpose of the 1989 amendment it is apparent that the legislature merely added a second layer of protection to local ethics commission procedure. There is now a requirement that commissions conduct confidential probable cause investigations prior to proceeding with public proceedings in cases where probable cause is found. This protects individuals from public disclosure of frivolous complaints but does not alter the original statutory scheme to allow public hearings on those cases for which probable cause has been found.
For this reason, there is statutory authority for the Commission's plan to hold a public hearing on the plaintiff's case now that probable cause has been found in a confidential investigation. There is no reason to enjoin the public hearing.
The other reasons given by the plaintiff in support of his application for an injunction will not be discussed at length. The plaintiff has cited several ways in which he claims that the Commission failed to accord him a fundamental fairness in the determination of probable cause.
It is unlikely that the plaintiff will be successful in any of these arguments. The mandate of Section 7-148h is that the Commission conduct probable cause investigations in accordance with Section 1-82a. There was no evidence received that the Commission failed to abide by the provisions of Section 1-82a. The application for an injunction is denied.
BY THE COURT,
John W. Pickard