Opinion
CV176063165S
05-10-2017
Stratford Board of Education et al. v. Bridgeport Board of Education
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (MOTION NO. 103.00)
Barbara N. Bellis, J.
On March 21, 2017, the plaintiffs, the Stratford Board of Education, the Trumbull Board of Education, and James Feehan, commenced this action against the defendants, the Connecticut State Board of Education (state board), the commissioner of education (commissioner), Bridgeport Board of Education (Bridgeport board), the city of Bridgeport (city), the mayor of Bridgeport (mayor), and the interim superintendent of Bridgeport public schools (superintendent). By order of the court, the Monroe Board of Education was added as an additional plaintiff to the action on April 24, 2017. This action arises out of the commissioner's alleged approval of the superintendent's request to charge other school districts tuition for each nonresident student enrolled in two interdistrict magnet schools located in the Bridgeport public school district, namely, Fairchild Wheeler Interdistrict Magnet School and Interdistrict Discovery Magnet Elementary School (the magnet schools).
The plaintiffs allege that the former superintendent requested to charge tuition for nonresident students enrolled in the magnet schools. Nevertheless, the court refers to the former superintendent as the superintendent for ease of discussion.
The plaintiffs allege the following facts in their verified complaint. The Bridgeport board, the city, and the superintendent operate the magnet schools, which began operating in 2013. Pursuant to General Statutes § 10-220d, the plaintiffs must permit operators of interdistrict magnet schools to recruit students from their public school districts (districts) to attend magnet schools in other districts. Hundreds of students from the plaintiffs' districts are enrolled in the magnet schools.
General Statutes § 10-220d provides in relevant part that " [e]ach local and regional board of education shall provide full access to technical high schools, regional agricultural science and technology education centers, interdistrict magnet schools, charter schools and interdistrict student attendance programs for the recruitment of students attending the schools under the board's jurisdiction, provided such recruitment is not for the purpose of interscholastic athletic competition."
Heretofore, the magnet schools have been operated exclusively with state funds. During the 2016-2017 school year, the parties learned that the state would reduce its grants to the magnet schools by approximately $500,000. On June 30, 2016, the superintendent wrote a letter to the commissioner requesting permission to bill neighboring districts $3000 for each nonresident student who attends the magnet schools. The commissioner granted this request by letter on August 31, 2016. The commissioner's approval of the superintendent's request to charge will result in approximately $1,818,000 worth of revenue to the Bridgeport public school system. Consequently, the defendants will receive $1,215,000 from the plaintiffs alone, which is $715,000 more than is required to replenish the $500,000 reduction in state grants.
The Bridgeport board commingles its operating accounts with the city's general municipal operating accounts. The commingling of interdistrict magnet school, Bridgeport public school, and municipal operating accounts permits the Bridgeport public school district and the city to convert or misappropriate the monies supplied by the plaintiffs for the purpose of interdistrict magnet school operation to pay for nonmagnet school and noneducational expenses, such as municipal operations expenses.
Accordingly, the plaintiffs assert the following six claims: (1) the commissioner did not apply the criteria set forth in General Statutes § 10-264 l (m)(2); (2) § 10-264 l (m)(2) violates due process as set forth in article first, § § 1, 2, 8, 10, 11, 18, and 20, of the Connecticut Constitution; (3) § 10-264 l (m)(2) exceeds the powers implicitly and explicitly granted to the General Assembly in article eighth, § 1, of the Connecticut Constitution; (4) § 10-264 l (m)(2) violates the plaintiffs' right to home rule in violation of article tenth, § 1, of the Connecticut Constitution; (5) unjust enrichment; and (6) civil theft as to the Bridgeport board, the city, the mayor, and the superintendent (Bridgeport defendants) only.
General Statutes § 10-264 l (m)(2) provides: " For the school year commencing July 1, 2015, and each school year thereafter, any interdistrict magnet school operator that is a local or regional board of education and did not charge tuition to a local or regional board of education for the school year commencing July 1, 2014, may not charge tuition to such board unless (A) such operator receives authorization from the Commissioner of Education to charge the proposed tuition, and (B) if such authorization is granted, such operator provides written notification on or before September first of the school year prior to the school year in which such tuition is to be charged to such board of the tuition to be charged to such board for each student that such board is otherwise responsible for educating and is enrolled at the interdistrict magnet school under such operator's control. In deciding whether to authorize an interdistrict magnet school operator to charge tuition under this subdivision, the commissioner shall consider (i) the average per pupil expenditure of such operator for each interdistrict magnet school under the control of such operator, and (ii) the amount of any per pupil state subsidy and any revenue from other sources received by such operator. The commissioner may conduct a comprehensive financial review of the operating budget of the magnet school of such operator to verify that the tuition is appropriate. The provisions of this subdivision shall not apply to any interdistrict magnet school operator that is a regional educational service center or assisting the state in meeting the goals of the 2008 stipulation and order for Milo Sheff et al. v. William A. O'Neill et al., as extended, or the goals of the 2013 stipulation and order for Milo Sheff et al. v. William A. O'Neill et al., as extended."
Along with their complaint, the plaintiffs submitted (1) a letter sent by the superintendent to the commissioner requesting permission to charge tuition at a rate of $3000 per nonresident student enrolled in the magnet schools, beginning in the 2017-2018 school year (request letter), and (2) a letter sent by the commissioner to the superintendent approving the superintendent's request to charge (approval letter).
The plaintiffs seek the following relief and damages: (1) a declaratory ruling that the defendants' request to charge is erroneous and unlawful pursuant to § 10-264 l (m)(2); (2) a declaratory ruling that § 10-264 l (m)(2) violates due process as set forth in article first, § § 1, 2, 8, 10, 11, 18, and 20, of the Connecticut Constitution; (3) a declaratory ruling that § 10-264 l (m)(2) exceeds the express and implied powers granted by the General Assembly in article eighth, § 1, of the Connecticut Constitution; (4) a declaratory ruling that § 10-264 l (m)(2) violates the home rule rights of the plaintiffs as provided for in article tenth, § 1, of the Connecticut Constitution; (5) injunctive relief preventing the defendants from charging the plaintiffs' districts tuition for magnet school students; (6) compensatory damages; (7) treble damages; and (8) any other relief the court deems fair and equitable.
On March 24, 2017, the state board and the commissioner (state defendants) filed a motion to dismiss counts one through five for lack of subject matter jurisdiction. The state defendants filed a memorandum of law in support of their motion. On April 17, 2017, the plaintiffs filed a memorandum of law in opposition. The plaintiffs also submitted (1) a copy of several e-mail messages between the plaintiffs and the commissioner, and (2) the plaintiffs' General Statutes § 4-176 petition to the commissioner for a declaratory ruling, dated April 11, 2017. On April 21, 2017, the state defendants filed reply memorandum of law. Thereafter, on April 24, 2017, the court heard oral argument regarding the motion to dismiss.
On April 12, 2017, the Bridgeport defendants filed a motion to dismiss the plaintiffs' complaint in its entirety on the ground that the court lacks subject matter jurisdiction over the plaintiffs' claims against them. The Bridgeport defendants filed a memorandum of law in support of their motion. On April 17, 2017, the plaintiffs filed a memorandum of law in opposition, and on April 21, 2017, the Bridgeport defendants filed a reply memorandum of law. On April 24, 2017, the court heard oral argument regarding both the state defendants' and the Bridgeport defendants' motion to dismiss. This decision addresses the state defendants' motion to dismiss only.
General Statutes § 4-176 provides:
(a) Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency. (b) Each agency shall adopt regulations, in accordance with the provisions of this chapter, that provide for (1) the form and content of petitions for declaratory rulings, (2) the filing procedure for such petitions, and (3) the procedural rights of persons with respect to the petitions. (c) Within thirty days after receipt of a petition for a declaratory ruling, an agency shall give notice of the petition to all persons to whom notice is required by any provision of law and to all persons who have requested notice of declaratory ruling petitions on the subject matter of the petition. (d) If the agency finds that a timely petition to become a party or to intervene has been filed according to the regulations adopted under subsection (b) of this section, the agency: (1) May grant a person status as a party if the agency finds that the petition states facts demonstrating that the petitioner's legal rights, duties or privileges shall be specifically affected by the agency proceeding; and (2) may grant a person status as an intervenor if the agency finds that the petition states facts demonstrating that the petitioner's participation is in the interests of justice and will not impair the orderly conduct of the proceedings. The agency may define an intervenor's participation in the manner set forth in subsection (d) of section 4-177a. (e) Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances, (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date, (4) decide not to issue a declaratory ruling and initiate regulation-making proceedings, under section 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reasons for its action. (f) A copy of all rulings issued and any actions taken under subsection (e) of this section shall be promptly delivered to the petitioner and other parties personally or by United States mail, certified or registered, postage prepaid, return receipt requested. (g) If the agency conducts a hearing in a proceeding for a declaratory ruling, the provisions of subsection (b) of section 4-177c, section 4-178 and section 4-179 shall apply to the hearing. (h) A declaratory ruling shall be effective when personally delivered or mailed or on such later date specified by the agency in the ruling, shall have the same status and binding effect as an order issued in a contested case and shall be a final decision for purposes of appeal in accordance with the provisions of section 4-183. A declaratory ruling shall contain the names of all parties to the proceeding, the particular facts on which it is based and the reasons for its conclusion. (i) If an agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefore, or within such longer period as may be agreed by the parties, the agency shall be deemed to have decided not to issue such ruling. (j) The agency shall keep a record of the proceeding as provided in section 4-177.
DISCUSSION
" A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a). " Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book § 10-30](a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; [Practice Book § 10-30](a); other types of undisputed evidence; see, e.g., Kozlowski v. Commissioner of Transportation, [274 Conn. 497, 504 n.7, 876 A.2d 1148 (2005)] (photographs and deposition testimony); Ferreira v. Pringle, 255 Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement); Shay v. Rossi, [253 Conn. 134, 139 n.7, 749 A.2d 1147 (2000)] (official records of department of children and families); and/or public records of which judicial notice may be taken; Cox v. Aiken, [278 Conn. 204, 217, 897 A.2d 71 (2006)] (state employees' collective bargaining agreement); the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . .
" If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits; see [Practice Book § 10-30](b); or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52.
In count one of the plaintiffs' complaint, the plaintiffs allege that the Bridgeport board and the superintendent did not submit data consistent with § 10-264 l (m)(2). The plaintiffs also allege that the commissioner considered data beyond the scope of § 10-264 l (m)(2) and that the commissioner's approval of the superintendent's request to charge neighboring districts $3,000 per nonresident student was improper under the statute.
The state defendants move to dismiss count one on the ground that the plaintiffs have failed to exhaust their administrative remedies, and, thus, the court lacks subject matter jurisdiction over the plaintiffs' claim. Specifically, the state defendants argue that the plaintiffs should have filed with the state board or the State Department of Education (department) a § 4-176 petition for a declaratory ruling prior to commencing the present action because the plaintiffs currently seek a declaratory ruling from the court.
" It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [W]here a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). The Supreme Court " repeatedly has held that when a plaintiff can obtain relief from an administrative agency by requesting a declaratory ruling pursuant to § 4-176, the failure to exhaust that remedy deprives the trial court of subject matter jurisdiction over an action challenging the legality of the agency's action." Republican Party of Connecticut v. Merrill, 307 Conn. 470, 478, 55 A.3d 251 (2012).
Section 4-176(a) provides that " [a]ny person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency." Section 4-176(b) provides that " [e]ach agency shall adopt regulations, in accordance with the provision of this chapter, that provide for (1) the form and content of petitions for declaratory rulings, (2) the filing procedure for such petitions and (3) the procedural rights of persons with respect to the petitions." The rules contained in § § 10-4-21 and 10-4-22 of the Regulations of Connecticut State Agencies set forth the process by which the state board shall consider petitions for declaratory rulings. Regs., Conn. State Agencies § 10-4-20.
Section 10-4-21 of the Regulations of Connecticut State Agencies provides:
(a) Who May File . Any interested person(s) (hereinafter petitioner) may petition the agency, as appropriate, to issue a declaratory ruling regarding the validity of any regulation or the applicability to specified circumstances of any statute, regulation or order enforced, administered or promulgated by the agency. (b) Petition Requirements . (1) A petition for a declaratory ruling shall meet the following requirements: (A) The petition shall be in writing; (B) The petition shall identify the particular statute, regulation or order and the particular aspect of it to which the petition is addressed; (C) The petition shall clearly state the issue or issues upon which a declaratory ruling is requested as well as appropriate factual background; (D) The petition shall be signed by the petitioner and state the petitioner's name and address. If the petitioner represents an organization, the name and address of the organization shall be included. Where applicable, the petition shall contain the name and address of the petitioner's counsel, agent or representative; and (E) The petition shall be filed, either by mail or hand delivery, during normal business hours, with the Office of the Commissioner, at 165 Capitol Avenue, Hartford, Connecticut 06106. (2) The petition may include argument in support of, or may be supplemented by a brief in support of the petitioner's position, with such legal citation as may be appropriate. (3) The petition shall send a copy of the petition by registered or certified mail to any person or organization that may be immediately affected by the request. (A) The petition shall include the names of the persons or organizations so notified. (B) If the petitioner is in doubt as to whom should be notified, he or she may apply to the agency for an order of notice."
Section 10-4-22 of the Regulations of Connecticut State Agencies provides:
Within thirty days following the receipt of the petition, the agency shall give notice to all persons who are required to be so notified and to all persons who have requested notice of declaratory ruling petitions on the subject matter of the petition. (a) The agency may give notice that a declaratory has been requested to any person or organization and may receive and consider date, facts, arguments or opinions from persons other than the petitioner. (b) The agency may demand such additional data, facts, arguments or opinions as may be relevant to the requested declaratory ruling. (c) Within sixty days following receipt of a petition for declaratory ruling, the agency shall determine whether to rule on the petition. (1) If ruling on the petition is denied, the agency shall send a written notice of the denial stating the reasons therefore to the petitioner and other interested persons or organizations. (2) If a ruling on the petition is granted, the agency shall: (A) Issue a declaratory ruling; (B) Order the matter set for specified proceeding; or (C) Agree to issue a declaratory ruling by a specified date. (3) If the agency deems a hearing necessary or helpful in determining any issue concerning the petition for declaratory ruling, the agency shall schedule such hearing and give such notice thereof as shall be appropriate. The agency may appoint a hearing agent to conduct and report on the hearing. (d) Within ninety (90) days following the close of evidence, or the filing of briefs, if appropriate, the agency shall render a written ruling and shall send it to the petitioner and other interested persons or organizations.
In the present case, the allegations of the complaint evidence that the plaintiffs seek in count one a declaratory ruling from the court that the defendants' request to charge is erroneous and unlawful under § 10-264 l (m)(2) because, inter alia, the commissioner failed to consider the data required by the statute. In other words, the plaintiffs seek a declaratory ruling as to the applicability of § 10-264 l (m)(2) to the alleged circumstances, which is precisely the relief that the relevant agency, namely, the state board, has the statutory authority to provide pursuant to § 4-176 and by way of the rules set forth in § § 10-4-21 and 10-4-22 of the state regulations. Moreover, the plaintiffs do not allege nor do the allegations in their complaint fairly imply that they sought a declaratory ruling from the state board or the department pursuant to § 4-176 prior to commencing the present action. Accordingly, unless the plaintiffs can show otherwise, the plaintiffs must and have failed to exhaust their administrative remedies pursuant to § 4-176 with respect to their claim in count one against the state defendants.
The plaintiffs assert three arguments in opposition. The court will address each in turn.
A
First, the plaintiffs argue that the available administrative remedies have been exhausted because the Bridgeport defendants satisfied the filing requirements of § 10-264 l (m)(2) when the superintendent sent the request letter, and the commissioner formally adjudicated the request as evidenced by the approval letter; therefore, the approval letter constitutes a final decision that is reviewable by the court. Citing Housing Authority v. Papandrea, 222 Conn. 414, 610 A.2d 637 (1992) (Papandrea ), the plaintiffs argue that the approval letter is distinct from an opinion letter stating an agency's position generally and, instead, constitutes an adjudication of specific facts regarding specific parties. In their reply memorandum, the state defendants argue that the approval letter was not a final decision, as defined by General Statutes § 4-166(4), because § 10-264 l (m)(2) does not require that a hearing be held prior to the issuance of the commissioner's determination.
" A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court . . ." General Statutes § 4-183(a). The term " final decision" means " (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176, or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . ." General Statutes § 4-166(5). The term " contested case" means " a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176, hearings referred to in section 4-168 or hearings conducted by the Department of Correction or the Board of Pardons and Paroles . . ." (Emphasis added.) General Statutes § 4-166(4).
" Not every matter or issue determined by an agency qualifies for contested case status . . . [E]ven in a case where a hearing is in fact held, in order to constitute a contested case, a party to that hearing must have enjoyed a statutory [or regulatory] right to have his legal rights, duties or privileges determined by that agency holding the hearing . . . In the instance where no party to a hearing enjoys such a right, the Superior Court is without jurisdiction over any appeal from that agency's determination . . . " A party seeking review of a state agency's action, therefore, must establish more than aggrievement (injury in fact); he must establish that the injury resulted from a final decision in a contested case . . . The test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily [or regulatorily] required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held." (Citations omitted; internal quotation marks omitted.) Ferguson Mech. Co. v. Dep't of Pub. Works, 282 Conn. 764, 771-72, 924 A.2d 846 (2007).
" A hearing is generally defined as a [p]roceeding of relative formality . . . generally public, with definite issues of fact and of law to be tried, in which . . . parties proceeded against have [a] right to be heard . . . In order for a proceeding to qualify as a hearing for the purposes of [§ 4-166(4)], the party must have a statutory or regulatory right to be heard by the agency." (Internal quotation marks omitted.) Id., 773.
In the present case, § 10-264 l (m)(2) does not require that an operator of an interdistrict magnet school must be given an opportunity for a hearing or that a hearing must be held prior to the issuance of the commissioner's determination on the operator's application to charge tuition. Moreover, the plaintiffs do not allege that the commissioner did in fact hold a hearing prior to granting the superintendent's request to charge. Thus, the approval letter does not constitute an agency determination in a contested case. Accordingly, the plaintiffs have not established that the approval letter constitutes a final decision by the commissioner.
Insofar as the plaintiffs argue that the approval letter is a declaratory ruling issued by an agency pursuant to § 4-176 and is, therefore, a final decision, the court does not agree. Similar to the circumstances in Papandrea, the allegations in the plaintiffs' complaint and the language of the approval letter do not demonstrate that the requirements of § 4-176(f) and (h) concerning the mailing and contents of a declaratory ruling were satisfied; Papandrea, supra, 222 Conn. 432 n.16 (concluding commissioner's letter did not constitute final decision for purposes of appeal pursuant to § 4-183 because letter did not comply with § 4-176(f) and (h) requirements); or that the Bridgeport defendants fulfilled the petition requirements of § 10-4-21 of the state regulations. Moreover, in their opposition memorandum, the plaintiffs claim that they have since filed a § 4-176 petition with the state board, which fairly implies the plaintiffs' recognition that the approval letter is not a declaratory ruling by the commissioner.
B
Second, the plaintiffs argue that the doctrine of futility excuses their failure to pursue a § 4-176 petition. According to the plaintiffs, further pursuit of administrative relief is futile because the commissioner already has decided the issue, the plaintiffs already made informal efforts to persuade the commissioner to reverse her decision, and the commissioner has a conflict of interest because the commissioner's approval of the superintendent's request to charge permits the state board to reduce its own liabilities by $500,000. The state defendants argue that the bases of the plaintiffs' claim of futility are not credible.
" The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions . . . [The courts] have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, supra, 263 Conn. 565. " It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings . . . The law does not require the doing of a useless thing." (Citations omitted; internal quotation marks omitted.) O& G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995).
As to the plaintiffs' first basis of futility, the commissioner's approval letter does not obviate the plaintiffs' obligation to exhaust their administrative remedies because, in doing so, the plaintiffs still may persuade the commissioner that her determination was improper under § 10-264 l (m)(2). See Papandrea, supra, 222 Conn. 432 (rejecting plaintiff's futility claim because fact that commissioner's letter indicated his intention not to restrict geographic area of state's section 8 program did not relieve plaintiff of obligation to exhaust administrative remedies in effort to persuade commissioner his position was legally incorrect).
Likewise, that the plaintiffs made informal efforts to persuade the commissioner to change her determination on the matter does not establish futility. Foremost, the plaintiffs' complaint does not contain any allegations with respect to their alleged informal efforts; even so, the opportunity remains for the plaintiffs to persuade the commissioner to change her position through the administrative process afforded by § 4-176 and § 10-4-21.
Lastly, the commissioner's alleged conflict of interest does not demonstrate that the plaintiffs' exhaustion of their administrative remedies would be futile. The language of the approval letter evidences the commissioner's reasoned decision in light of the requirements of § 10-264 l (m)(2), and, simply arguing that the commissioner is conflicted because the department allegedly will save $500,000 as a consequence of her decision to approve the superintendent's request to charge is insufficient; more is required. See Peruta v. Commissioner of Public Safety, 128 Conn.App. 777, 792, 20 A.3d 691 (2011) (concluding plaintiff's allegation that department routinely enforces adverse interpretation of statute before board does not render futile administrative remedy available to plaintiff); O&G Industries, Inc., v. Planning & Zoning Commission, supra, 232 Conn. 429 (determining plaintiff's belief that exhausting its administrative remedies would be futile because board members allegedly made hostile comments was purely speculative).
C
Third, the plaintiffs claim that they have filed a § 4-176 petition with the state board, and they request that the court stay the present action and expedite adjudication of the petition if the court finds the petition to be an appropriate jurisdictional prerequisite. In response, the state defendants argue that the plaintiffs should have filed a petition for a declaratory ruling with the state board and subsequently filed an appeal with the Superior Court in accordance with § 4-176; however, the state defendants argue, the plaintiffs' simultaneous proceedings before the state board and the Superior Court cannot and do not satisfy the condition precedent that the plaintiffs must first exhaust their administrative remedies.
" A primary purpose of the [exhaustion] doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of [g]overnment, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, supra, 263 Conn. 564-65; Pet v. Department of Health Servs., 207 Conn. 346, 351-52, 542 A.2d 672 (1988), quoting McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (" A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene." [Internal quotation marks omitted.])
In consideration of the important purposes served by the exhaustion doctrine, the court declines the plaintiffs' request to stay the action and expedite adjudication of the petition. See Emerick v. Connecticut Dept. of. Public Health, Superior Court, judicial district of Hartford, Docket No. CV-11-5035336-S, (October 27, 2011, Domnarski, J.) (granting motion to dismiss because plaintiff failed to exhaust administrative remedies even as plaintiff's § 4-176 petition was pending with department of public health).
Accordingly, the court grants the state defendants' motion to dismiss the first count of the plaintiffs' complaint on the ground that the plaintiffs have failed to exhaust their administrative remedies prior to commencing this action, and, therefore, the court lacks subject matter jurisdiction over the plaintiffs' claim.
II
Next, the court shall address the state defendants' motion to dismiss as to counts two, three, and four of the plaintiffs' complaint. In count two, the plaintiffs allege that § 10-264 l (m)(2) violates due process in multiple ways, for example, by not including a standard by which the commissioner shall assess the necessity of a tuition charge or by failing to provide supplying districts with an opportunity for notice or comment on the propriety or necessity of a tuition charge. In count three, the plaintiffs allege that § 10-264 l (m)(2) exceeds the powers granted to the General Assembly in article eighth, § 1, of the Connecticut Constitution insofar as it is not rationally, substantially, and verifiably related to the provision of a free, adequate public education or it represents a dereliction of the state's duty to educate as the statute transfers state funding liabilities in Bridgeport to adjacent municipal governments. In count four, the plaintiffs allege that § 10-264 l (m)(2) impermissibly burdens the plaintiff districts' right to home rule pursuant to article tenth, § 1, of the Connecticut constitution insofar as surpluses resulting from municipal taxation are matters of local control, and the funds at issue in the present case are such surpluses and are protected by the home rule. The plaintiffs also allege that the defendants lack the power to compel these funds to be transferred across district and municipal boundaries.
The state defendants move to dismiss the second, third, and fourth counts on the ground that the plaintiffs lack standing, and, therefore, the court lacks subject matter jurisdiction over their claims. The state defendants contend that the plaintiff's lack standing because controlling case law provides that boards of education do not have standing to challenge the constitutionality of legislation enacted by their creator, the state, though they may question the interpretation of such enactments. In opposition, the plaintiffs argue that counts two, three, and four are not facial constitutional challenges to the statute but are " as applied" constitutional claims. The plaintiffs also argue that plaintiff Feehan has taxpayer standing and, thus, the court has jurisdiction over his constitutional claims. In their reply memorandum, the state defendants argue that no reasonable reading of counts two, three, and four supports the plaintiffs' assertion that they are as applied constitutional claims and that, even if they are as applied constitutional claims, such claims are barred by the plaintiffs' failure to exhaust their administrative remedies. Additionally, the state defendants argue that Feehan does not have taxpayer standing and that, even if he does, the town of Stratford is the proper defendant, and his claims are barred by his failure to exhaust his administrative remedies.
" Boards of education, like towns, have no standing to challenge the constitutionality of legislation enacted by their creator, though they may question the interpretation of such enactments . . . Local boards of education act as agents of the state when they are fulfilling the statutory duties imposed upon them pursuant to article eighth, § 1 of the Connecticut constitution. They may also act as agents of municipalities in their function of maintaining control over public schools located within the municipalities' limits . . . Although the local boards may at times have divided loyalties, [i]t is an established principle that local charter powers must yield to the superior power of the state when the two enter a field of statewide concern." (Citations omitted; internal quotation marks omitted.) Connecticut Assn. of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 563, 499 A.2d 797 (1985).
Moreover, " [e]ven claims of constitutional violations . . . are not always an exception to the general requirement of exhaustion . . . Simply bringing a constitutional challenge to an agency's actions will not necessarily excuse a failure to follow an available statutory appeal process . . . [D]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore." (Citations omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, supra, 207 Conn. 354; see, e.g., Sullivan v. State, 189 Conn. 550, 559, 457 A.2d 304 (1983) (deciding plaintiff's failure to exhaust administrative remedies bars her constitutional claims where same relief sought in present action might have been obtained through alternative statutory procedure, specifically, by filing application for permission to sue with state claims commissioner).
At this time, the court need not decide whether the plaintiffs' claims in counts two, three, and four are facial or as applied constitutional claims nor does the court need to determine whether Feehan has taxpayer standing to sue because, assuming arguendo that the claims are as applied and that Feehan does have taxpayer standing, the obligation remains for the plaintiffs to exhaust their administrative remedies prior to bringing such claims against the state defendants in Superior Court. Therefore, the court grants the state defendants' motion to dismiss counts two, three, and four for lack of subject matter jurisdiction on the ground that the plaintiffs have failed to exhaust their administrative remedies.
III
Lastly, in count five, the plaintiffs allege that the city and Bridgeport public schools commingle their operating funds in the same account and that excess education funds are used to fund their operating budget. The plaintiffs allege that such actions unjustly enrich the city insofar as the tuition charges exceed the amount necessary to fund the plaintiffs' share, if any, of operating the magnet schools. The plaintiffs additionally allege that the Bridgeport defendants do not provide consideration to the plaintiffs for the excess funds that are included in the tuition charge and diverted to noneducational purposes.
The state defendants move to dismiss the fifth count on the ground that it is barred by the doctrine of sovereign immunity, and, thus, the court lacks subject matter jurisdiction over the plaintiffs' claim. At oral argument, counsel for the plaintiffs conceded that the plaintiffs' unjust enrichment claim against the state defendants is barred by the doctrine of sovereign immunity. Consequently, the court lacks subject matter jurisdiction over the plaintiffs' unjust enrichment claim against the state defendants. Thus, the state defendants' motion to dismiss the fifth count of the plaintiffs' complaint is granted.
CONCLUSION
The state defendants' motion to dismiss counts one through five of the plaintiffs' complaint as applied to the state defendants is granted.