Opinion
No. TTD CV 05-4002448-S
December 10, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In this case, the plaintiff, Elizabeth Tucker, alleges that she was wrongfully terminated from her employment as a full-time clerk of the defendant, Eighth Utilities District of Manchester, Connecticut, on December 6, 2002, by an official who had been unlawfully delegated the authority to make such employment decisions. Following an earlier decision by the court resolving some issues on a Motion for Summary Judgment filed by the defendant, both parties have now filed new Cross Motions for Summary Judgment on the only remaining liability issue, i.e., whether the authority to terminate the plaintiff in this case was delegable or non-delegable and, therefore, whether that termination was lawful or not. For the following reasons, the court rules that the authority was non-delegable, and, therefore, plaintiff's termination was unlawful. Accordingly, summary judgment is rendered for the plaintiff on the issue of liability. The issue of damages will be decided by the jury.
I
In this matter, the complaint was brought in four counts alleging (1) Wrongful Discharge, (2) Breach of Contract, (3) Breach of Implied Covenant of Good Faith, and (4) Interference with Contract. Defendants filed a Motion for Summary Judgment dated December 29, 2006. On April 23, 2007, the court rendered summary judgment in favor of the defendants on the fourth count, but left the remainder for resolution by the jury because the material facts necessary for resolution of those issues were in dispute. After that decision, the only remaining defendant is the Eighth Utilities District. The parties then completed discovery, and the matter proceeded toward trial by jury. Shortly before trial, scheduled to start on December 11, 2007, the parties agreed that the material facts were not in dispute and that the dispositive issue on liability was whether the authority to terminate employment was delegable or non-delegable. The parties also agreed that this was an issue of law for the court, not the jury, and filed Cross Motions for Summary Judgment on December 4, 2007, and requested expedited disposition. An expedited schedule was necessary. Reply briefs were permitted, and filed, on December 7, 2007, and oral argument was conducted on December 10, 2007. The court agrees that the material facts are not in dispute, and that the dispositive issue on liability is a matter of law and appropriate for summary judgment disposition that can and should be resolved before trial.
II
"The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . .
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of facts. 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. 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." (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 227-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006); see also Vitale v. Kowal, 101 Conn.App. 691, 696, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 904 (2007). The court agrees with the parties that the material facts are no longer in dispute, and the dispositive issue is one of law for the court.
The fact that summary judgment was earlier denied on some issues due to disputed facts is not an obstacle. "It is within the trial court's discretion to consider a renewed motion for summary judgment that has previously been denied where . . . additional or new evidence has been submitted which was not before the court in ruling upon the earlier motion for summary judgment." (Internal quotation marks omitted.) CT Page 21210 Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 532-33, 906 A.2d 14 (2007). This case presents such new circumstances permitting consideration on summary judgment again.
III
The material facts are as follows: The Eighth Utilities District was created by Special Act of the Legislature in 1915. It is a body politic and corporate with the power, inter alia, to supply fire protection and sewer service to parts of Manchester, Connecticut. 17 Spec. Acts 316, No. 299, as amended. The enabling act generally empowers the President and Directors with "control of the affairs of said District." Id., § 6. Under § 27 of the enabling act, the District was empowered to adopt "by-laws and regulations for the control and management of its affairs and the conduct of its officers and agents."
On the subject of employment, the By-laws of the District provide, "The President shall appoint, remove, employ and discharge, fix the compensation of all servants, agents and employees of the District, subject to the approval of the Board of Directors." (Emphasis Added.) By-laws, Art. III, Sec. B(4). The By-laws further provide, "The President and the Board of Directors shall have the control and general management of the affairs of the District and in all cases shall act as a Board regularly convened by a majority vote of those present and voting." By-laws, Art. III, Sec. B(29).
On February 20, 2001, the plaintiff was hired as a full-time clerk by the District. At all times relevant to the case, Thomas Ferguson was President of the District. Consistent with longstanding practice in the District, Ferguson delegated to individual Directors the authority to run their respective departments, including the authority to hire and fire employees. The Board of Directors approved his delegation of hiring and firing authority to individual Directors. In 2002, Ferguson delegated to Director Alan Fletcher, the Administrative Commissioner, the authority to make personnel decisions, including the authority to hire and fire employees. The plaintiff reported to Fletcher. On December 6, 2002, Fletcher terminated plaintiff from employment. There is no evidence that the President ever terminated the plaintiff, nor did the Board vote on the particular employment action, nor is there evidence of any official act of ratification after the fact.
IV
Plaintiff's position is that her termination was unlawful because "[T]here is no authority in the By-laws for the President to delegate his power with respect to the employees to another officer or person. The President did not fire the plaintiff, the Administrative Commissioner did. The Board of Directors of the District can only act `at a regularly convened meeting and by majority vote of those present and voting.' The Board did not approve the plaintiff's termination at a meeting and by vote as required in the By-laws." Plaintiff's Brief, p. 9. Defendant argues that the By-laws set forth the powers and duties of the President and Board, not the procedures, and, "[a]ccordingly, the use of the phrase `shall' within Art. III, Sec. B (4) establishes a directory rather than a mandatory duty upon the District President with regard to the hiring and termination of employees. The District President, therefore, had the discretion to delegate the hiring and termination of employees to the department commissioners." Defendants' Brief, p. 9. Thus, the case hinges on whether the term "shall" in the By-laws is mandatory or directory.
On this point, when it comes to interpreting municipal employment rules and regulations, the ordinary principles of statutory construction apply. (Citations omitted.) Mattera v. Civil Service Commission, 49 Conn.Supp. 224, 870 A.2d 483, aff'd 273 Conn. 235, 869 A.2d 637 (2005). In determining the meaning of statutes, first we look at the text. "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statues. 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." General Statues § 1-2z.
The word "shall" ordinarily connotes a mandatory, rather than a directory, requirement. Lostritto v. Community Action Agency of New Haven, 269 Conn. 10, 20, 848 A.2d 418 (2004). But, that is not invariably the outcome. In fact, as against the government, the word is often construed as "may," particularly when necessary to sustain an act or accomplish the purpose which was clearly intended. Daley v. Warden of State Prison, 20 Conn.Sup. 384, 390, 136 A.2d 504 (1957). The factors to be considered are well settled. "While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous . . . our past decisions have indicated that the use of the word shall, though significant, does not invariably create a mandatory duty . . . In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute's essential purpose . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . A statutory provision of this type directs what is to be done but does not invalidate any action taken for failure to comply . . . Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory." (Citations omitted; internal quotation marks omitted.) Kindal v. Dept. of Social Services, 69 Conn.App. 563, 568, 795 A.2d 622 (2002).
In the instant case, the legislative assignment of authority to run the District is in the President and Board of Directors, and the By-laws specifically provide that the authority to hire and fire is vested in the President and Board of Directors, and no others. The rule is more than a procedural rule to provide order, system and dispatch. It is a substantive assignment of responsibility. It is, therefore, a mandatory rule requiring action by certain named officers only. See Dan M. Creed, Inc. v. Tynan, 151 Conn. 677, 679, 202 A.2d 239 (1951) (specific assignment of quasi-judicial function not delegable). Thus, in a case where a Chief of Police suspended an officer for more than ten days under a charter which prohibited such action without notice, hearing and affirmative action by the commissioners of the department, the requirements were found to be mandatory, and the suspension was, therefore, invalid. McDermott v. New Haven, 107 Conn. 451, 453, 140 A. 826 (1928). On the other hand, where Commissioners voted on an arbitration award, but did not do so in executive session under a regulation that provided that "panel members will meet in an executive panel session to decide the matter submitted," the rule was deemed directory only. Metropolitan Dist. Comm'n v. Am. Federation of State, County and Mun. Employees, 237 Conn. 114, 122, 676 A.2d 825 (1996). In the instant case, the By-laws require action by certain officials. In this case, there was no action whatsoever taken by the responsible parties. It is not that they failed to follow a procedural rule. They failed to act at all.
Section 10:42 of McQuillin, The Law of Municipal Corporations, (3rd Ed., 2006), sets forth the law, generally accepted, on the delegation of municipal powers:
The legal conception early obtained that the powers possessed by public and municipal officers "must be viewed as public trusts, not conferred upon individual members for their own emolument, but for the benefit of the community over which they preside." Therefore, the principle is fundamental and of universal application that public powers conferred upon a municipal corporation and its officers and agents cannot be delegated to others, unless so authorized by the legislature or charter.
This general rule specifically pertains to matters involving the exercise of discretion by a public official:
If the legislature confers power on a municipal corporation, the exercise of discretion by the governing body of the municipality cannot be delegated to a municipal officer or other person or body, and the general rule is that, if from the nature of things to be done, a municipal officer is required to perform duties involving the exercise of discretion and judgment, that officer cannot in any manner delegate them.
McQuillin, The Law of Municipal Corporation, supra, § 10:43.
Moreover, where the issue is employment termination, as in the instant case, and where authority is vested in specific officials, it is generally recognized that delegation is not permitted absent specific legal authorization to delegate that function:
The agency upon whom the power of removal is conferred by law cannot delegate such power. Thus, power to remove vested in a council cannot be delegated to a committee; the power to discharge vested in a department head or a city manager cannot be exercised by the personnel director or the personnel board.
McQuillin, The Law of Municipal Corporation, supra, § 12.233.30
Accordingly, the rule is mandatory. The defendant failed to follow that mandatory rule in this case. The termination, therefore, was invalid.
V CT Page 21214
Alternatively, defendant argues that the employment action here was valid because even if Fletcher did not have actual authority to terminate the plaintiff, he had apparent authority. Defendant's Brief, p. 10 citing Norwalk v. Board of Labor Relations, 206 Conn. 449, 451, 538 A.2d 694 (1988). The doctrine of apparent authority applies, if at all, in cases where a plaintiff seeks to bind a defendant to his or her actions. In this case, the plaintiff seeks the opposite. The doctrine, therefore, is inapposite. Moreover, it does not apply to municipalities. Norwalk v. Board of Labor Relations, supra, 206 Conn. 453.VI
For all of the foregoing reasons, on the remaining issue of liability, the plaintiff's Motion for Summary Judgment is granted, the defendant's Motion for Summary Judgment is denied, and judgment as to liability only on Counts One, Two and Three are entered in favor of the plaintiff and against the defendant. It remains for the jury to decide the issue of damages.