Opinion
No. CV 10 6006317
April 7, 2011
MEMORANDUM OF DECISION
Facts and Procedural History
The plaintiffs, eighteen teachers, filed a complaint against the defendants, the Norwich Teacher's League ("the League"), the Norwich Board of Education ("the Board"), and the Department of Education ("the Department"), that arises from the following. On July 6, 2010, the Connecticut Education Association filed a petition with the Department for unit clarification on behalf of the League. The petition sought unit clarification to determine whether certain teaching positions were within the bargaining unit for teachers employed by the Board.
A hearing officer was appointed on July 20, 2010. On August 9, 2010, the plaintiffs filed a petition to intervene, which sought to have the plaintiffs made parties to the petition for unit clarification. By its August 30, 2010 "Memorandum to the Parties Order," the Department's hearing officer denied the plaintiffs' petition to intervene. Thereafter, on October 13, 2010, the plaintiffs filed this complaint appealing the denial of their petition.
The Department filed its motion to dismiss and memorandum in support on October 21, 2010. The Board filed its motion to dismiss and memorandum in support on November 17, 2010. On the same date, the plaintiffs filed their memorandum in opposition to the Department's motion. Subsequently, on December 1, 2010, the League filed its motion to dismiss supporting the arguments made by the Department. Finally, on January 31, 2011, the plaintiffs filed their memorandum in opposition to the Board's motion to dismiss, which simply adopted the arguments made in their November 17, 2010 memorandum. Because all three defendants make the same argument in support of their motions for dismissal of the plaintiffs' action, all three will be addressed by this decision.
Discussion
"[A] motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31(a)." (Internal quotation marks omitted.) Wilcox v. Webster, 294 Conn. 206, 213, 982 A.2d 1053 (2009). The defendants argue they are entitled to dismissal of this action because the plaintiffs lack standing and have failed to show aggrievement and because their complaint fails to set forth a justiciable controversy.
The court will first address the defendants' argument that the plaintiff has failed to show aggrievement. "Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214-15.
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981).
General Statutes § 10-153c(b) states: "A local or regional board of education or the exclusive representative of a teachers' or administrators' unit may file a unit clarification petition with the Commissioner of Education in order to clarify questions concerning the appropriate composition of an existing unit if no question concerning representation is pending . . ."
Section 4-177a(b) of the Uniform Administrative Procedure Act, as adopted by Connecticut General Statutes, states: "The presiding officer may grant any person status as an intervenor in a contested case if that officer finds that: (1) Such person has submitted a written petition to the agency and mailed copies to all parties, at least five days before the date of hearing; and (2) the petition states facts that demonstrate that the petitioner's participation is in the interests of justice and will not impair the orderly conduct of the proceedings."
Section 4-166(5) of the Uniform Administrative Procedure Act, as adopted by Connecticut General Statutes, defines an "Intervenor" as "a person, other than a party, granted status as an intervenor by an agency in accordance with the provisions of subsection (d) of Section 4-176 or subsection (b) of Section 4-177a . . ."
In the present case, the presiding hearing officer denied the plaintiffs' petition to intervene. She stated: "The issue before the Hearing Officer in this case is not the bargaining rights of identified individuals. The issue is whether any of the enumerated positions belong within the teachers' bargaining unit. The issue is not the credentials or certifications of the specific individuals who currently hold the positions. The proper parties to this case are the bargaining unit and the board of education, not the individual employees. The League and the NBOE will be expected to offer detailed evidence as to the actual duties of the positions identified above. The Hearing Officer may question witnesses and order testimony from additional persons if necessary to come to a decision."
In Tomlinson v. Board of Education, 226 Conn. 704, 711, 629 A.2d 333 (1993), the plaintiff teacher, after receiving a layoff notice, requested a public hearing to determine if grounds existed for her discharge. A hearing officer, appointed pursuant to § 10-151(d), concluded the layoff was proper after which defendant school board discharged the teacher. See id., 711-12. The teacher appealed to the trial court, which affirmed the decision and dismissed the appeal. See id., 712. On appeal to the Supreme Court, the teacher argued, in part, that the hearing officer and the trial court should have found that her discharge was illegal because there were open teaching positions filled by less senior tutors in the English as a Second Language ("ESL") program when she was discharged. See id., 724. Specifically, she argued that because the tutor positions were in fact teacher positions, other positions were available to which she could have been appointed and the school board was obligated to consider transferring the plaintiff to an ESL tutor position before terminating her. See id., 725-26.
That section states, in pertinent part: ". . . Within twenty days after receipt of written notice by the superintendent that contract termination is under consideration, such teacher may file with the local or regional board of education a written request for a hearing. A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated . . ."
In affirming the trial court's decision, the court rejected this argument. The court stated: "[T]he hearing officer properly concluded that he lacked the authority . . . to transform tutor positions into teaching positions so as to create additional opportunities for the plaintiff's continued employment. He ruled that the decision as to whether a position is or is not within the bargaining unit properly rested with the state department of education, which has held hearings on this issue and has issued rules . . . General Statutes § 10-153c(b) provides that `[a] local or regional board of education or the exclusive representative of a teachers' or administrators' unit may file a unit clarification petition with the commissioner of education in order to clarify questions concerning the appropriate composition of an existing unit . . .' Thus, the hearing officer properly concluded that the plaintiff cannot seek clarification of the status of the tutor positions through her statutory termination hearing." (Citation omitted.) Id., 727-28.
Moreover, in Groton Board of Education v. Tirozzi, Superior Court, judicial district of New London, Docket No. 395748 (February 3, 1992, Maloney, J.) ( 6 Conn. L. Rptr. 20, 22), the court noted: "Section 10-153c(b) allows only boards of education and bargaining units to petition for additional positions to be included in a bargaining unit. Therefore, when individuals who would otherwise be included in the administrators' unit are excluded by contract, they are left outside the protection of the Act and without means of petitioning the Commissioner." (Emphasis added.). That decision addressed the Groton Board of Education's appeal from a decision of the Commissioner of Education, in which the Commissioner found that four specific administrative positions in the Groton public school system were properly included in the bargaining unit represented by the Association of Groton Administrators and that the collective bargaining agreement between the Board and the Association improperly excluded them. See id., 20-21.
This court agrees with the defendants that under the terms of § 10-153c(b), only a local or regional board of education or the exclusive representative of a teachers' or administrators' unit may file a unit clarification petition with the Department to clarify the appropriate composition of an existing unit. Pursuant to § 10-153c(b), individual teachers and administrators do not have a specific, personal and legal interest in a petition for unit clarification. As such, the plaintiffs lack standing to bring this appeal. In light of this finding, the court need not address the defendants' additional argument that the plaintiffs' complaint fails to set forth a justiciable controversy.
Conclusion
For all of the foregoing reasons, the defendants' motion to dismiss is hereby granted.