Opinion
No. CV09 4027183
September 14, 2009
MEMORANDUM OF DECISION MOTIONS TO DISMISS APPEAL (#101, #106)
The defendants, Ethics Commission of the Town of Fairfield ("Ethics Commission") and the Town of Fairfield ("Fairfield") have each moved to dismiss the appeal filed by the plaintiffs from a finding of "no probable cause" by the Commission, as it relates to certain ethics violations alleged against Fairfield First Selectman Kenneth Flatto, Fairfield Town Attorney Richard Saxl and individual members of the Fairfield Conservation Commission ("Conservation Commission"). The Ethics Commission and Fairfield argue that the court lacks subject matter jurisdiction for two reasons: (1) there is no statutory authorization for an appeal from the finding of the Ethics Commission; and (2) the plaintiffs lack standing to bring such an appeal. For the reasons set forth, herein, the court agrees and dismisses the appeal.
I Standard of Law: Motion to Dismiss
Before proceeding further, the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 (1997) [ 18 Conn. L. Rptr. 409]; Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). "In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990). Where the court's jurisdiction has been placed in question, plaintiffs bear the burden of proving that subject matter jurisdiction exists. Fink v. Golenbock, 238 Conn. 183, 199 n. 13 (1996).
II Factual Background
A review of the plaintiffs' appeal reveals that the plaintiffs are eight "concerned citizens and residents of the Town of Fairfield, who are appealing the finding of the Ethics Commission that sworn complaints filed by the plaintiffs did not demonstrate probable cause to believe that the parties named in the complaints violated the Standards of Conduct ("Standards"), as well as, other provisions of the Fairfield Town Charter ("Charter") "that contributed to their violations of the Standards."
The named plaintiffs are Edward Bateson, Alexis Harrison, Jeanne Konecny, Philip Meiman, Pamela Ritter, Les Schaffer, Jocelyn Shaw and Jane Talamini.
On June 13, 2008, the plaintiffs filed an ethics complaint with the Fairfield Town Clerk. The complaint was subsequently amended on June 23, 2008. The plaintiffs alleged that First Selectman Flatto, Town Attorney Saxl and various members of the Conservation Commission violated the Town Charter when they acted to remove environmental compliance oversight over the Fairfield Metro Center construction project from Conservation Director Thomas Steinke and his staff and place an independent consultant, Redniss Mead, Inc., in charge of that task. The plaintiffs contended that by doing so, Flatto, Saxl and members of the Conservation Commission violated the Standards of Conduct contained in the Charter by giving special treatment to the Black Rock Realty, LLC, the developer for the Metro Center project. The plaintiffs also claimed that Flatto and Saxl failed to exercise independent judgment and acted under a conflict of interest, in violation of the Charter, and Saxl failed to render the required legal advice to Director Steinke.
On November 4, 2008, the Ethics Commission adopted an opinion in which it concluded that there was no probable cause to believe that Flatto, Saxl or members of the Conservation Commission had violated the Standards of Conduct. Thereafter, the plaintiffs moved for reconsideration, and the plaintiffs' counsel presented additional argument at a December 10, 2008 meeting of the Ethics Commission. Following this meeting, the Ethics Commission unanimously voted to reconsider its opinion of "no probable cause." Upon reconsideration, the Ethics Commission again concluded that there was no probable cause to find that Flatto, Saxl or any members of the Conservation Commission had violated the Standards of Conduct.
The plaintiffs have now filed the subject appeal, dated December 16, 2008, arguing that the Ethics Commission "acted arbitrarily and in abuse of the discretion vested in it." The plaintiffs request that the court conduct a de novo hearing on probable cause or reverse the Ethics Commission's findings of no probable cause and remand the matter to said Commission, with instructions to proceed to a full hearing.
III Discussion A. Right to Appeal
The plaintiffs, in opposing the motion to dismiss, allege they are persons entitled to prosecute this appeal pursuant to Section 10.15.C(1)(f) of the Charter which provides:
An individual involved or directly affected by the action taken as a result of the Ethics Commission's findings or recommendations may seek judicial review of such action and of the Ethics Commission's findings or recommendations unless the action taken was a referral of the matter to proper authorities for criminal prosecution.
The plaintiffs contend that the Fairfield Town Charter was established in 1947 by Special Act No. 527, Vol. 25, Part 1 of the 1947 Special Acts, which allows the town "to make all lawful regulations, ordinances, resolutions or orders in furtherance of or necessary or proper to carry into execution any of the forgoing powers or any other powers provided for in this act, and all other powers which may be hereafter vested in the town . . ." (Emphasis added.) Therefore, this language permits the later creation of an ethics commission by Charter amendment when authorized by General Statutes § 7-148h(a) and the appeal therefrom, as authorized by Charter § 10.15C(1)(f).
The defendants argue that "[a]ppeals to the courts from administrative offices or boards exist only under statutory authority and unless a statute provides for such appeals courts are without jurisdiction to entertain them." Tazza v. Planning Zoning Comm'n, 164 Conn. 187, 190 (1972); see also, Danziger v. Demolition Board, 18 Conn.App. 40, 44, 556 A.2d 625 (1989), cert denied, 211 Conn. 805, 559 A.2d 1139 (1989); McCarthy v. Town of Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, No. CV91 28 57 13 (Oct. 19, 1993, Fuller, J.) [ 10 Conn. L. Rptr. 141] 8 CSCR 1153 ("The right to appeal from a decision of a municipal agency to the Superior Court is exclusively controlled by statute passed by the legislature"). In the present matter, the defendants argue that the plaintiffs cannot identify any statute passed by the legislature vesting jurisdiction in the Superior Court to consider a finding by the Fairfield Ethics Commission and instead, only rely upon the Charter. General Statutes § 7-148h provides a municipality with the authority to establish an ethics commission, but the statute does not provide the authority for the municipality, on its own, to create a right of appeal to the Superior Court.
Sec. 7-148h(a) reads as follows:
(a) 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 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. 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.
Likewise, the defendants argue that General Statutes § 7-188 which authorizes municipalities to "adopt and amend a charter" and to "amend a home rule ordinance" do not confer on municipalities the authority to expand the scope of the Superior Court's jurisdiction. The defendants state that § 7-188, which was part of the "Home Rule Act" is a procedural section which provides municipalities the authority to enact charter provisions and ordinances, but not to expand the scope of their authority to areas reserved to the legislature. "It is generally held that the express enumeration of powers granted to a municipalities constitutes an exclusion of all other powers not expressly delegated to them." New Haven Comm'n on Equal Opportunities v. Yale University, 183 Conn. 495, 500 (1981).
Sec. 7-188. Initiation of action for adoption, amendment or repeal of charter or home rule ordinance reads in relevant parts:
(a) Any municipality, in addition to such powers as it has under the provisions of the general statutes or any special act, shall have the power to (1) adopt and amend a charter which shall be its organic law and shall supersede any existing charter, including amendments thereto, and all special acts inconsistent with such charter or amendments, which charter or amended charter may include the provisions of any special act concerning the municipality but which shall not otherwise be inconsistent with the Constitution or general statutes, provided nothing in this section shall be construed to provide that any special act relative to any municipality is repealed solely because such special act is not included in the charter or amended charter; (2) amend a home rule ordinance which has been adopted prior to October 1, 1982, which revised home rule ordinance shall not be inconsistent with the Constitution or the general statutes; and (3) repeal any such home rule ordinance by adopting a charter, provided the rights or benefits granted to any individual under any municipal retirement or pension system shall not be diminished or eliminated . . .
(d) After a resolution has been so adopted by the appointing authority or a petition has been so certified as sufficient, as the case may be, the appointing authority shall not adopt any resolution initiating such action and the clerk shall not accept any petition for the initiation of such action until such time as the commission appointed pursuant to such original resolution or petition has been terminated.
Lastly, General Statutes § 51-197b(a) also does not create a right of appeal from the findings of the Ethics Commission. Section 51-197b(a) states that "all appeals that may be taken from administrative decisions of officers, boards, commissions or agencies of the state or any political subdivision thereof shall be taken to the Superior Court." (Emphasis added.) § 51-197b(a). Section 51-197b(a) "merely provides that `[e]xcept as provided in § 31-301b, all appeals that may be taken from administrative decisions of officers, boards, commissions of the state or any political subdivision thereof shall be taken to the Superior Court.' Put simply, § 51-197b(a) does not create any right of appeal." Lewis v. Slack, 110 Conn.App. 641, 645 (2008). Section 51-197b(a) does not in itself create an appeal from the findings of the Ethics Commission, as section 7-148h(a) does not provide for an appeal to the Superior Court.
The court agrees with the defendant's position that the Section 10.15.C(1)(f) Fairfield Town Charter does not provide the necessary authority for an appeal of an Ethics Commission finding to the superior court.
"`There is no absolute right of appeal to the courts from a decision of an administrative agency.' Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993); accord Fairfield v. Connecticut Siting Council, 238 Conn. 361, 368, 679 A.2d 354 (1996). `Appeals to the courts from administrative [agencies] exist only under statutory authority . . .' Tazza v. Planning Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); accord Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995); Charles Holdings, Ltd. v. Planning Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). `Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.' (Internal quotation marks omitted.) Charles Holdings, Ltd. v. Planning Zoning Board of Appeals, supra, 479; see also Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 498, 659 A.2d 714 (1995) (`The right of appeal [from the decision of an administrative agency] is purely statutory. It is accorded only if the conditions fixed by . . . statute are met.' [Internal quotation marks omitted.])." Brookridge Dist. Assn. v. Planning Zoning Commission, 259 Conn. 607, 611-12,793 A.2d 215 (2002).
In Re Thomas J., 77 Conn.App. 1, 7 n. 9, 822 A.2d 323 (2003).
There is no case law to support an argument that there is any inherent right to appeal adverse administrative rulings. Unless a statute provides for an appeal, the courts are without jurisdiction to decide them. Tazza v. Planning Zoning Commission, supra, 164 Conn. 187, 190. McCarthy v. Town of Fairfield, supra, Superior Court, judicial district of Fairfield at Bridgeport.
The lack of any provision to appeal the findings of the Ethics Commission, in addition, does not violate any constitutional rights of the plaintiffs.
To be constitutional, a statute authorizing municipal administrative boards to make decisions need not provide for appeals. State v. Vachon, 140 Conn. 478, 485, 101 A.2d 509 (1953); Diaz v. Board of Directors, 2 Conn.App. 43, 48, 476 A.2d 146 (1984). The absence of an express appeal provision does not foreclose other forms of judicial relief where appropriate. If any person claims to be harmed by an order of an administrative board, his constitutional right to due process is protected by his privilege to apply to a court for relief. For example, a person claiming to be harmed could seek a plenary action for relief. This means that the aggrieved person may bring a plenary action, rather than an administrative appeal, against the appropriate officials or municipality in order to obtain judicial review of their actions. Danziger v. Demolition Board, 18 Conn.App. 40, 46, 556 A.2d 625 (1989), cert denied, 211 Conn. 805, 559 A.2d 1139 (1989).
October Twenty-four, Inc. v. Planning Zoning Comm., CT Page 15263 35 Conn.App. 599, 608-09, 646 A.2d 926 (1994).
"There is no provision in 7-148, which defines the scope of municipal powers, or any other statute which gives a municipality the authority to pass an ordinance or charter provision creating the power to appeal from a municipal board or agency to the Superior Court." 190. McCarthy v. Town of Fairfield, supra, Superior Court, judicial district of Fairfield at Bridgeport. This appeal is not authorized by § 7-148h of the General Statutes or any other statutory provision.
The court agrees with the defendants that the Connecticut Uniform Administrative Procedures Act ("UAPA") is inapplicable, as well. It only applies to state agencies, boards and commissions. See General Statutes § 4-166(1) (defines "agency" as "each state board, commission, department or officer . . .;" see also, Danziger v. Demolition Board, supra, 18 Conn.App. 45.
B. Standing and Aggrievement
As an alternative grounds for dismissal for a lack of subject matter jurisdiction, the defendants argue that even if Section 10.15C(1)(f) of the Fairfield Charter was valid in permitting an appeal to the Superior Court, it does not provide a right of appeal to the present plaintiffs. Therefore, the defendants maintain the plaintiffs lack standing.
"Standing is the legal right to set judicial machinery in motion . . . If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." City of Middletown v. P G Enterprises Ltd Part., 45 Conn.Sup. 435, 437 (1998) [ 22 Conn. L. Rptr. 381]. "One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . ." When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . (Citations omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 393-95, 941 A.2d 868 (2008). "Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved . . . [Statutory] [s]tanding concerns the question [of] whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question . . ." Id. "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Because standing implicates the court's subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing . . ." Id.
The defendants argue that the plaintiffs, while initiating the ethics complaint, were not parties to the Ethics Commission investigation and cannot be said to be directly involved in or affected by, the Ethics Commission's finding of no probable cause. Additionally, the defendants argue that the Ethics Commission established pursuant to General Statutes § 7-148h(a) is required to abide by the confidentiality provisions contained in General Statutes § 1-82a
Sec. 1-82a. Confidentiality of complaints, evaluations of possible violations and investigations. Publication of findings.
(a) Unless a judge trial referee makes a finding of probable cause, a complaint alleging a violation of this part or section 1-101nn shall be confidential except upon the request of the respondent. An evaluation of a possible violation of this part or section 1-101nn by the Office of State Ethics prior to the filing of a complaint shall be confidential except upon the request of the subject of the evaluation. If the evaluation is confidential, any information supplied to or received from the Office of State Ethics shall not be disclosed to any third party by a subject of the evaluation, a person contacted for the purpose of obtaining information or by the ethics enforcement officer or staff of the Office of State Ethics. No provision of this subsection shall prevent the Office of State Ethics from reporting the possible commission of a crime to the Chief State's Attorney or other prosecutorial authority.
(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the Office of State Ethics shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or board or staff member of the Office of State Ethics.
(c) Not later than three business days after the termination of the investigation, the Office of State Ethics shall inform the complainant and the respondent of its finding and provide them a summary of its reasons for making that finding. The Office of State Ethics shall publish its finding upon the respondent's request and may also publish a summary of its reasons for making such finding.
(d) If a judge trial referee makes a finding of no probable cause, the complaint and the record of the Office of State Ethics' investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings. No complainant, respondent, witness, designated party, or board or staff member of the Office of State Ethics shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known. If such a disclosure is made, the judge trial referee may, after consultation with the respondent if the respondent is not the source of the disclosure, publish the judge trial referee's finding and a summary of the judge trial referee's reasons therefor.
(e) The judge trial referee shall make public a finding of probable cause not later than five business days after any such finding. At such time the entire record of the investigation shall become public, except that the Office of State Ethics may postpone examination or release of such public records for a period not to exceed fourteen days for the purpose of reaching a stipulation agreement pursuant to subsection (c) of section 4-177. Any such stipulation agreement or settlement shall be approved by a majority of those members present and voting.
Connecticut General Statutes 1-82a imposes a confidentiality requirement on ethical complaints until there has been a determination of probable cause. The act is applicable to the State of Connecticut Ethics Commission but Connecticut General Statutes 7-148h incorporates its confidentiality requirements into Municipal Ethics Commission requirements . . . Connecticut General Statutes 7-148h authorizes towns to establish Ethics Commissions; and if they choose to do so, such Ethics Commissions have subpoena powers and are subject to the confidentiality provisions of General Statutes 1-82a . . . It is also worth noting that the law with respect to the discretion of agencies such as the defendant's Ethic Commission is that they have absolute discretion in the selection of which complaints to prosecute. Hickley v. Chaney, 470 U.S. 821, 831 (1985); U.S. v. Nixon, 418 U.S. 683, 693 (1974); Vaca v. Sipes, 386 U.S. 171, 182 (1967).
Emerick v. Glastonbury, Superior Court, judicial district of Hartford at Hartford, No. CV 06-4027248-S (Apr. 18, 2008, McWeeney, J.)
The plaintiffs argue that they do have standing to appeal the finding of no probable cause by the Ethics Commission. They contend that when an issue touches the community generally, and the risk of a deluge of lawsuits is small, anyone can challenge a public act. They liken their position to one similarly faced by members of a community who are aggrieved by acts damaging the environment, where every citizen is a private attorney general authorized to protect the air, water and other natural resources of the state. See. General Statutes § 22a-19; Connecticut Water Co. v. Beausoleil, 240 Conn. 38, 44; Red Hill Coalition, Inc. v Conservation Commission of the Town of Glastonbury, 212 Conn. 710, 715 (1989). The plaintiffs also argue any member of the community having an interest in seeing that community affairs are properly administered can bring a quo warranto action. Dumais v. Underwood, 47 Conn.App. 783, 788 (1998). The court agrees with the defendants that the plaintiffs are not "directly involved or directly affected by" the action of the Ethics Commission's finding of no probable cause. See Section 10.15C(1)(f) Fairfield Town Charter.
The plaintiffs' interest in environmental compliance is too attenuated to be considered "directly involved" or "directly affected" by the Commission's action. The Connecticut Environmental Protection Act explicitly authorizes "any person" to intervene as a party . . ." General Statutes § 22a-19(a). In this matter there is no similar statutory provision.
To be "aggrieved" a person must have a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all members of the community as a whole and that interest must be specifically and injuriously affected by the decision. ABC, LLC v. State Ethics Commission, 264 Conn. 812 (2003). The plaintiffs have demonstrated nothing more than a generalized interest in ethical conduct and conservation issues, similar to that possessed by the public at large. They do not possess a specific, personal interest in the prosecution or not, of an ethics complaint. Their interest is the same as other citizens of Fairfield.
The plaintiffs have failed to establish statutory or classical aggrievement. They lack the requisite standing to bring this appeal.
Orders
For the reasons stated herein the defendants' motions to dismiss the appeal are hereby granted.