Opinion
No. CV 02-0282973-S
January 25, 2005
MEMORANDUM OF DECISION
This action arises out of a dispute involving the calculation of pension benefits for retired police department employees in the city of Meriden. The plaintiffs are Robert Kosienski, George Caffrey and Amos Matteucci, former chiefs of police; Nelson Cosette, a former deputy chief of police; and Theresa Magruder and Lillian Custy, widows of former chiefs of police for the city of Meriden.
FACTS
On December 12, 2002, the plaintiffs filed an eighteen-count complaint against the city of Meriden (the city) and the Meriden Municipal Pension Board (the board) which manages the city's pension and retirement system, alleging that the city, acting through the board, refused to increase the pension benefits to which the plaintiffs are entitled. The plaintiffs participate in a pension plan established by 25 Spec. Acts 977, No. 229, § 2 (1949), as amended by 26 Spec. Acts 947, No. 340 (1953). The plaintiffs claim they are entitled to an increase in their respective pensions based upon 25 Spec. Acts 977, No. 229, § 2 (1949), as amended by 26 Spec. Acts 947, No. 340 (1953), which provides in relevant part: "The rate of pension of any retired fireman or policeman shall be one-half of the prevailing rate of pay for the rank he has attained and holds at the time of retirement. Prevailing rate of pay means the annual pay as fixed from time to time by the board of public safety, and in addition thereto shall include such cost-of-living bonus or other emolument as may be granted to the active members of the fire and police departments by the board of apportionment and taxation."
Prior to the enactment of home rule legislation, the legislature had sole authority to amend the city of Meriden municipal charter. In 1949, pursuant to this authority, the legislature passed 25 Spec. Acts 977, No. 229, § 2 (1949), which established a pension plan for members of the city of Meriden Police Department. In 1953, this act was amended by 26 Spec. Acts 947, No. 340 (1953). These acts were incorporated into the Meriden city code existing at that time as § 85B. On September 15, 1980, after the adoption of the Home Rule Act, General Statutes § 7-187 et seq., the city adopted a new charter. The charter provides that the pension rights of employees whose employment commenced prior to the charter's effective date were not altered or affected by adoption of the charter. Meriden City Charter, c. IX, § 9-6, effective 1979.
In their complaint, each plaintiff sets forth three theories of liability. First, the plaintiffs claim that they are entitled to a writ of mandamus ordering the city to pay increased pension benefits in accordance with the special acts. Second, the plaintiffs contend that the city breached its contract with the plaintiffs when it refused to increase the plaintiffs' pension benefits. Third, the plaintiffs allege that the city has been unjustly enriched as a result of its failure to pay the plaintiffs the increased pension benefits to which they claim entitlement. In addition, the plaintiffs request money damages and payment of interest pursuant to General Statutes § 37-3a, as well as such other relief as the court deems fair and equitable.
The parties tried this case before the court on July 27, 2004. Following the trial, the parties submitted post-trial briefs in support of their respective positions. After considering the documentary and testimonial evidence presented by the parties, as well as their admissions, including those contained in their pleadings and briefs, I find following facts, most of which are undisputed: The plaintiff, Robert Kosienski, retired from his position as police chief for the city on June 30, 2001 after forty years of service. At the time of his retirement, Kosienski was earning a base annual salary of approximately $75,058 plus an additional sum of approximately $3,464.16 for holiday pay. Subsequent to his retirement, the city provided Kosienski with a monthly pension comprised of one-half of the base monthly salary he had been earning, plus an additional monthly sum for holiday pay and life and health insurance benefits.
One day after the retirement of Kosienski, on July 1, 2001, William Abbatematteo commenced work as the new chief of police for the city, earning a base annual salary of. $85,000 including holiday pay. Abbatematteo had accepted the city's offer of employment at a staffing salary of $85,000 on May 22, 2001. The pension benefits of retired chiefs of police Kosienski, Caffrey and Matteucci, and of the widows of former chiefs of police, Magruder and Custy, were not increased to reflect the higher starting salary of Abbatematteo.
Beginning with chief Abbatematteo, the city changed its salary structure with respect to police department employees. Chief Abbatematteo's base annual salary of $85,000 includes holiday pay. Former chief Kosienski's base annual salary of $75,058 did not include holiday pay. Rather, Kosienski was paid an additional $3464.16 for twelve holidays.
As widows of former police chiefs they are entitled to receive one-half of the pension benefits to which their spouses would have been entitled if they were living.
One year later, on July 1, 2002, Abbatematteo received a five percent pay raise. At that time, the city increased the pensions of Kosienski, Caffrey and Matteucci by five percent and the pensions of Magruder and Custy were similarly adjusted. On July 1, 2003, Abbatematteo received an additional pay raise of five and one-half percent. The city thereafter increased the pensions of the retired police chiefs and the widows by five and one-half percent.
On July 1, 2001, the plaintiff, Nelson Cosette, retired from his position as deputy police chief for the city of Meriden. Prior to his retirement, Nelson Cosette earned a base annual salary of approximately $70,000 plus an additional sum for holiday pay. Subsequent to his retirement, the city provided Nelson Cosette with a monthly pension comprised of one-half of the base monthly salary he had been earning, plus an additional monthly sum for holiday pay and life and health insurance benefits. On April 1, 2002, the city appointed Jeffrey Cosette to the position of deputy police chief for the city of Meriden. When he commenced work, the new deputy chief, Jeffrey Cosette, earned a base annual salary of $76,000, including holiday pay. The pension of retired deputy police chief, Nelson Cosette, was not increased to reflect the new deputy chief's higher starting salary. On April 1, 2003, deputy chief Jeffrey Cosette received a three percent raise. At that time, the city increased the pension of former deputy chief Nelson Cosette by three percent of his base salary.
In short, with the exception of the initial jumps in the starting salaries of Abbatematteo as the new chief of police and Jeffrey Cosette as the new deputy chief of police, whenever the chief and deputy chief received pay increases, the plaintiffs received increases in their respective pensions in the same proportion or percentages. Other pertinent facts will be referred to in the ensuing discussion.
Plaintiffs Kosienski, Caffrey, Matteucci, Magruder and Custy claim that, in addition to the increases in their pension benefits received as a result of the pay raises received by chief of police Abbatematteo in 2002 and 2003, they are entitled to an increase in their pension benefits based on the new chief's higher starting salary in June 2001. Similarly, Nelson Cosette contends that he is entitled to an increase in his pension benefits as a result of the new deputy chief's higher starting salary in April 2002. These claims form the crux of the plaintiffs' complaint.
DISCUSSION
The plaintiffs contend that each is entitled to a higher monthly pension benefit pursuant to 25 Spec. Acts 977, No. 229, § 2 (1949), as amended by 26 Spec. Acts 947, No. 340 (1953), and incorporated into the former Meriden city code as § 85B (collectively, the statute). Specifically, the plaintiffs claim that in addition to increases in their pension benefits associated with the percentage cost-of-living raises granted to the successor chief or deputy chief of police, the statute requires the city to increase their pension benefits based on the higher starting salaries enjoyed by the successor chief and deputy chief of police. In support of their claim, the plaintiffs point to the language of the statute, its legislative history and the past practice of the city in calculating pension benefits. In opposition to the plaintiffs' claim, the city argues that the statute requires that the pension of a retiree be based on the salary earned by the retiree at the time he retired. The city maintains that the statute provides that pensions be increased in accordance with cost-of-living bonuses or other emoluments granted to current, active members of the department, but does not require pension increases based upon increases in the starting salary for successor chiefs or deputy chiefs of police.
Statutory Interpretation
As a preliminary matter, the court notes that the parties do not dispute the applicability of 25 Spec. Acts 977, No. 229, § 2 (1949), as amended by 26 Spec. Acts 947, No. 340 (1953). Accordingly, the present case hinges on statutory interpretation. "The question of whether a particular statute . . . applies to a given state of facts is a question of statutory interpretation. . . . Statutory interpretation presents a question of law for the court." (Internal quotation marks omitted.) Biller Associates v. Rte. 156 Realty Co., 52 Conn.App. 18, 26, 725 A.2d 398 (1999), aff'd, 252 Conn. 400, 746 A.2d 785 (2000). "It is well settled that one of the primary guides for interpreting a statute, indeed the first guide to be consulted, is the language of the statute itself." Garrison v. Planning Board, 66 Conn.App. 317, 321, 784 A.2d 951, cert. denied, 258 Conn. 944, 786 A.2d 429 (2001).
The first sentence of the statute states: "The rate of pension of any retired fireman or policeman shall be one-half of the prevailing rate of pay for the rank he has attained and holds at the time of retirement." The city argues that "the plain meaning of this language is that the pension rate of a retiring officer is initially set at the time of the retirement of the retiring officer, not at the time of the hiring of that officer's replacement, and is based on the rate of pay of the retiring officer, not that of the officer's replacement." The city contends that the "the rate of pension of a retiree can only be based upon his rate of pay at the time of his retirement" and that the statute "mandates that the pension be computed based upon the salary of the retiring officer at the time of the retirement." (Emphasis in original.) Under the construction of the statute urged by the city, the phrase "at the time of retirement" must modify "the prevailing rate of pay." There is another possible construction of the statute. The phrase "at the time of retirement" may alternatively modify "the rank he has attained and holds." This distinction, although technical, causes the text to be susceptible of more than one plausible meaning. "[The court has] defined the term ambiguous to mean that the text is susceptible of more than one plausible meaning." (Internal quotation marks omitted.) As such, the court finds the statute is ambiguous. See Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 151, 848 A.2d 451 (2004) (Borden, J., concurring). Therefore, the court may properly consider in its analysis sources of meaning in addition to the text of the statute. See Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532, 839 A.2d 1250 (2004).
"The interpretation of [statutory] language often has led our Supreme Court to choose between the interpretations of a statute contended for by the parties on the basis of rules of English grammar." Garrison v. Planning Board, supra, 66 Conn.App. 321; see also Gonsalves v. West Haven, 232 Conn. 17, 22, 653 A.2d 156 (1995) (statutory definition must be read in light of "ordinary rules of English grammar and sentence structure"); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993) (reading statute "in the light of ordinary rules of English grammar and sentence structure"). Thus, the court may seek guidance from the traditional rules of English grammar. Principles of grammar "indicate that a modifier is presumed to modify the term immediately preceding it." State v. Burns, 236 Conn. 18, 24, 670 A.2d 851 (1996). Applying the ordinary rules of English grammar and sentence structure to the statute, the phrase "at the time of retirement" properly modifies "the rank he has attained and holds," which immediately precedes it. Under this construction, the pension of a retired chief of police is calculated based on the rate of pay for the rank that he held and attained at the time of retirement, rather than the precise salary he earned at the time of retirement.
Moreover, the construction of the statute urged by the city would render the phrase "rank he has attained and holds" superfluous. The city argues: "The special act mandates that the pension be computed based upon the salary of the retiring officer at the time of retirement. Thereafter, the percentage of each raise awarded to the incumbent is awarded to each pensioner." In effect, the city would read the statute as setting the pension rate at "the prevailing rate of pay at the time of retirement," ignoring the intervening phrase "rank he has attained and holds." The rules of statutory construction require that "[e]ach word used by the legislature should be given effect and, as far as possible, the entire enactment is to be harmonized." (Internal quotation marks omitted.) Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). Therefore, the phrase "rank he has attained and holds" is presumed to have meaning and significance.
The second sentence of the statute defines the term "prevailing rate of pay" used in the first sentence. "Prevailing rate of pay means the annual pay as fixed from time to time by the board of public safety, and in addition thereto shall include such cost-of-living bonus or other emolument as may be granted to the active members of the fire and police departments by the board of apportionment and taxation." In its argument, the city contends that the "prevailing rate of pay" is the "annual pay as fixed from time to time by the board of public safety," and, therefore, when the "board computes a pension it refers to a retiree's `annual pay' at the time of retirement in determining the `prevailing rate of pay . . . at the time of retirement.'" In short, the city contends that the "annual pay as fixed from time to time by the board of public safety" refers to the precise salary that a particular police chief received when he retired. Notwithstanding the city's argument, by substituting "annual pay as fixed from time to time by the board of public safety" for "prevailing rate of pay" in the first sentence, we are left with the following: "The rate of pension of any retired fireman or policeman shall be one-half of the annual pay as fixed from time to time by the board of public safety for the rank he has attained and holds at the time of retirement." As noted above, the phrase "at the time of retirement" modifies the rank an individual has attained and held rather than the prevailing rate of pay of that individual. As a result, the "prevailing rate of pay" is determined by the annual salary as fixed from time to time by the board of public safety for the rank an individual attained and held when he retired and does not denote the precise salary he earned when he retired. Moreover, the interpretation pressed by the city would render the phrase "as fixed from time to time" superfluous and would abrogate the effect of the phrase that the "prevailing rate of pay" is mutable over time.
The city next argues that construing the statute as requiring the city to increase the plaintiffs' pension whenever a new chief earns a higher starting salary would render the clause "and in addition thereto shall include such cost-of-living bonus" superfluous. The city contends that "if a retiree's pension is automatically increased to the annual pay of his successor, then it would not be necessary to include the [cost-of-living bonus] language" in the statute because "the cost-of-living bonus would already have been passed on to the retiree if his pension were automatically increased to the annual pay at any time in the future." This argument conflates the meanings of "cost-of-living bonus" and "annual pay." Generally, "[t]o ascertain the commonly approved usage of a word [or phrase], it is appropriate to look to the dictionary definition of the term." (Internal quotation marks omitted.) State v. Ramos, 271 Conn. 785, 797 n. 10, 860 A.2d 249 (2004). Black's Law Dictionary defines "cost-of-living clause" as "[a] provision . . . that gives an automatic wage, rent, or benefit increase tied in some way to cost-of living raises in the economy." Black's Law Dictionary (7th Edition, 1999). A cost-of-living bonus is typically a salary adjustment applied to regular fixed compensation for the purpose of keeping step with inflation, or the cost-of-living. The higher starting salary of Abbatematteo does not fall within the meaning of a cost-of-living bonus. Rather, it constitutes a newly fixed annual pay for the position of chief of police. As the city concedes, Abbatematteo's higher starting salary was based on considerations such as his experience, training, qualifications and abilities. An "annual salary" is different in kind from a simple "cost-of-living bonus." The cost-of-living bonus therefore adds another dimension or component to the meaning of "prevailing rate of pay" and is not superfluous. As the statute states, "Prevailing rate of pay means the annual pay . . . and in addition thereto shall include cost-of-living bonus . . ." (Emphasis added.)
Moreover, the statute's legislative history supports this construction. Where a statute is not "plain and unambiguous," the court may "look to other factors relevant to our inquiry into its meaning, including the legislative history of the statute, the circumstances surrounding its enactment and its purpose"; Ames v. Commissioner of Motor Vehicles, supra, 267 Conn. 532; "the legislative policy it was designed to implement, and . . . its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Kirk R., 271 Conn. 499, 510, 857 A.2d 908 (2004).
In analyzing the legislative history of 25 Spec. Acts 977, No. 229, § 2 (1949), as amended by 26 Spec. Acts 947, No. 340 (1953), the discussions from the legislative hearings and debate are instructive with respect to the intent and purpose of the statute. In 1949, commenting on the adoption of the statutory language, Attorney Francis R. Danaher described the statute in relevant part as follows. "Due to the fact during the years of the depression, 1932, 3, 4, and 5 pay cuts in the city of Meriden when men retired subject to pay cuts received much less than men retired before them on pension. As a result, the men on the pension list during those years and former years and their Widows received much less than is considered a fair pension. The Captains, Lieutenants and the one chief receive less than our regular members, the purpose of this bill is to bring those pensions up to a parity with those that are retired today." Conn. Joint Standing Committee Hearings, Cities and Boroughs, 1949 Sess., p. 88. The city contends that this statement reflects an intent to remedy a specific disparity in pension benefits resulting from salary cuts during the depression and gives no indication that the pension board is to "constantly update the `prevailing rate of pay' of a retiree to the `annual pay' of any successor at any time in the future." Although Danaher's statement does not indicate that the pension board is to "constantly update the `prevailing rate of pay' of a retiree to the `annual pay' of any successor at any time in the future," neither his statement nor the statutory language indicate any intent to limit the statute to depression era retirees or to preclude updates in the future.
Furthermore, in 1953, when the statute was amended, Representative Woodworth declared that "This bill provides pensioners of the fire and police departments of the City of Meriden one-half of the prevailing rate of pay for the rank they attained and held at the time of retirement, and that said the prevailing rate of pay includes all income either by wage, bonus or other means currently being paid to active members of the departments." 17 H.R. Proc., Pt. 6, 1953 Sess., p. 2085. Woodworth's description of prevailing rate of pay as including "all income either by wage, bonus or other means currently being paid to active members of the departments" suggests that rate of pension of any retired fireman or policeman is pegged to the wage, or salary, of active members of the department holding the same rank and include other bonuses, such as cost-of-living adjustments. In addition, during the legislative proceedings, Representative William B. Comiskey indicated that "it is obvious that the intent of this act was to increase pensions as active members got more money — the pensioners got more money." Conn. Joint Standing Committee Hearings, Cities and Boroughs, 1953 Sess., p. 128. The legislative history therefore supports the plaintiffs' claim that they are entitled to all salary increases received by active department members, including increases in starting salaries of the chief and deputy chief of police.
The city also argues that its position is supported by its past practice in calculating pensions which it contends has been consistent over the years. The city maintains that when each police chief retired, his pension was "based upon the annual salary being paid to him as Chief of Police `at the time of retirement'" and that each retired police chief's "pension has increased each time an incumbent successor Police Chief has received a `cost-of-living' bonus." The city states that it "has interpreted the phrase `cost-of-living' bonus to mean a salary increase to presently serving officers." (Emphasis added.) Evidence adduced at trial of the city's past practice undermines its position and, in fact, supports the plaintiffs' claim that they are entitled to increases in annual salary in addition to cost-of-living bonuses and other emoluments. For example, from 1985 to 1990, Kosienski, then serving as chief of police, received total raises and increases amounting to approximately sixty-four percent of his base salary. That is, over a period of approximately five years, his annual base salary increased from approximately $38,000 to $62,016. Kosienski testified that he understood that those pay raises were part of the Management Enhancement Plan, a program implemented by the city during the mid-1980s in order to achieve salary parity with surrounding communities. The purpose of the enhancement plan was to bring the salaries of Meriden employees in line with the salaries of persons employed in surrounding cities and communities of approximately the same size. Caroline Beitman, the Director of Personnel for the city, testified that she understood the raises implemented in an effort to keep up with other communities to be "something in addition to the cost of living increase." Based on the foregoing, I find that during this period the raises received by the police chief were other than and more than "cost-of-living" raises. For each raise Kosienski received from 1985 to 1990, the city granted corresponding increases to the pension benefits of the retired police chiefs. Thus, in practice, the pensions of retired police chiefs increased as a result of both salary increases in connection with reaching the city's objective of achieving parity with surrounding communities and "cost-of-living" bonuses.
In effect, the construction of the statute that the city urges would require the court to recognize a distinction between incumbent police chiefs and new police chiefs. The city's practice has been to increase the pensions of retirees whenever an incumbent police chief receives a raise, regardless of whether it is a cost-of-living increase, or an increase associated with achieving parity with other similar cities, and to deny increases in the pensions of retirees when a new police chief receives a raise in the form of a higher starting salary. The city, however, has neither articulated the purpose of such a distinction nor set forth any policy reasons which would support such a distinction.
Furthermore, with respect to the city's history of payment of pension benefits throughout the 1980s and 1990s, I find, based on the testimony of Barbara Homerston, the city's Pension Assistant for the past thirteen years, that the city increased the pension benefits of all retired police chiefs every time the current chief of police received a raise and that, as such, each retired police chief earned the same pension which, at all times, amounted to one-half of the current chief's salary. I further find that the city's practice changed when Kosienski retired from his position as chief of police in 2001. When Chief Abbatematteo was hired at an annual salary of eighty-five thousand dollars, the pensions of the retirees were not increased in accordance with the new chief's increased salary.
Rather, the retirees' pensions would increase only when a cost-of-living raise was awarded to the current chief of police. As a consequence of the city's new practice, the pensions of the retired police chiefs were no longer "one-half of the prevailing rate of pay" of the current police chief. For example, in 2003, when Abbatematteo received a salary increase of five percent, which amounted to $5000, the pensions of the retired police chiefs did not increase by $2500, or one-half of the $5000. Instead, as Homerston explained, the retired police chiefs "received a percentage, and it was the percentage that Abbatematteo had received . . . if chief Abbatematteo received a five percent increase, the retirees received a five percent increase on their base pay, and their holiday pay." Similarly, when Nelson Cosette's successor was hired at a starting salary which was $6,000 higher than his had been, his pension was not adjusted to reflect that increase. As a result of the city's new practice, the plaintiffs' pensions are no longer one-half of the salary of the successor in office. Instead, the plaintiff's pensions are merely increased by a percentage which corresponds to the percentage salary increase granted to the current chief or deputy chief. This directly contravenes the language of the statute which provides: "The rate of pension of any retired fireman or policeman shall be one-half of the prevailing rate of pay for the rank he has attained and holds at the time of retirement." (Emphasis added.)
The court finds that, in accordance with the language of the statute, the plaintiffs are entitled to increases in their pension benefits based on the higher starting salaries enjoyed by successor chiefs and deputy chiefs of police for the city of Meriden, as well as increases associated with cost-of-living raises and other emoluments granted to the successor chief or deputy chiefs of police.
The court now turns to the plaintiffs' specific claims of writ of mandamus, breach of contract and unjust enrichment.
Writ of Mandamus
The plaintiffs seek a writ of mandamus directing the city to increase their pension benefits pursuant to the statute based on the higher starting salaries of the successor chief and deputy chief of police. "[T]he writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions, and is not to be extended beyond its well-established limits." (Internal quotation marks omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990). "Mandamus neither gives nor defines rights which one does not already have. It commands the performance of a duty. It acts upon the request of one who has a complete and immediate legal right; it cannot and does not act upon a doubtful and contested right." (Internal quotation marks omitted.) Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533-34, 450 A.2d 369 (1982). A writ may properly issue only if the plaintiff demonstrates: "(1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to the performance of that duty; and, (3) that the plaintiff has no adequate remedy at law." (Internal quotation marks omitted.) Stratford v. State Board of Mediation Arbitration, 239 Conn. 32, 44, 681 A.2d 281 (1996); see also Smith v. Pension Retirement Board, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 02 0080150 (July 23, 2004, Lager, J.) ( 37 Conn. L. Rptr. 539) (issuing writ of mandamus where pension board refused to pay plaintiff pension benefits to which she was entitled under the provisions of the city's pension agreement). "The plaintiff in an action for a writ of mandamus bears the burden of proving the deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy." (Internal quotation marks omitted.) Honan v. Greene, 37 Conn.App. 137, 143, 655 A.2d 274 (1995).
The defendants admit in their responses to the plaintiffs' Requests for Admission that the plaintiffs "have no other adequate remedy at law to collect their respective correct pension amounts absent a Writ of Mandamus."
"Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted.) Hennessey v. Bridgeport, supra, 213 Conn. 659. As such, "If the right to the issuance of the writ is asserted contrary to the public interest, the court might refuse its aid in mandamus proceedings." (Internal quotation marks omitted.) Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967). "(S]pecial caution is warranted where the use of public funds is involved and a burden may be unlawfully placed on the taxpayers." (Internal quotation marks omitted.) Hennessey v. Bridgeport, supra, 213 Conn. 659-60.
Under § 35-2, subsection A of the Meriden code, the board is entrusted with the management of the city's pension and retirement system. The plaintiffs participate in a pension plan established by 25 Spec. Acts 977, No. 229, § 2 (1949), as amended by 26 Spec. Acts 947, No. 340 (1953) (the statute), for the firemen and policemen of the city of Meriden. The city does not dispute that pursuant to chapter IX, § 9-6, subsection 2 of the Meriden city charter and Meriden code § 35-2, the board manages the pension plan in which the plaintiffs participate. In its response to the plaintiffs' request for admissions, the city concedes that "the pre-charter pension plan as created by the special acts imposes a mandatory duty and obligation on the Defendant to pay its retired policemen one-half of the prevailing rate of pay he has attained and holds at the time of retirement." The statute provides that "the rate of pension for any retired fireman or policeman is one-half of the prevailing rate of pay for the rank he has attained and holds at the time of retirement plus the cost-of-living bonuses or other emoluments granted to the active members of the department." Pursuant to the special acts, the board has a duty to increase the pension benefits of retired department members in accordance with raises in annual salary which the city grants from time to time, including raises granted to new chiefs and deputy chiefs of police in the form of higher starting salaries.
Section 35-2 subsection B of the Meriden code provides that the board "shall determine the eligibility of an employee and his rights, and the rights of the city" with respect to the pension plan. The board, therefore, is the sole entity with authority to approve pension benefits and the plaintiffs have no other recourse but to obtain approval of the payments from the board. Accordingly, the plaintiffs are entitled to a writ of mandamus against the board and the board is directed forthwith to approve an increase in the plaintiffs' pension benefits in accordance with the statute.
Breach of Contract and Unjust Enrichment
Next, the plaintiffs contend that the city breached its contract with the plaintiffs by not paying the increased pension benefits in accordance with the statute. In light of the court's finding in favor of the plaintiffs with respect to the writ of mandamus, an award of damages for breach of contract would amount to an impermissible double recovery. See Smith v. Pension Retirement Board, supra, Superior Court, Docket No. CV 02 0080150. For the same reason, the equitable remedy of unjust enrichment is not available to the plaintiffs.
Interest under General Statutes § 37-3a
Finally, the plaintiffs claim that an award of interest under General Statutes § 37-3a is warranted in the present case because the city wrongfully withheld the pension benefits to which the plaintiffs claim entitlement. As evidence that the city acted in bad faith, the plaintiffs point to the fact that the city denied the plaintiffs an increase in their pension benefits before seeking a legal opinion from the city's counsel. Section 37-3a provides in relevant part: "(a) Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909 . . . as damages for the detention of money after it becomes payable."
"The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted . . . An award of such interest is an equitable determination lying within the trier's sound discretion . . . The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . .
"A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated." (Citations omitted; internal quotation marks omitted.) Maloney v. PCRE, LLC, 68 Conn.App. 727, 754-55, 793 A.2d 1118 (2002). "A plaintiff's burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful." Id., 756. "The resolution of the issue is dependent on the circumstances in each case and is, consequently, inherently fact bound." Id.
Courts have awarded prejudgment interest under § 37-3a where a party had detained money to punish the party who rightly should have possessed it. See Aubin v. Miller, 64 Conn.App. 781, 798, 781 A.2d 396 (2001). "Other courts have upheld a trial court's refusal to award such damages where the trial court found that the party who had detained moneys had made good faith arguments in defense of its actions . . . or where the trial court found that the defendant improperly withheld moneys under a good faith belief, bolstered by the advice of counsel, that an agreement was enforceable." Maloney v. PCRE, LLC, supra, 68 Conn.App. 756.
As noted previously, the present case hinges on statutory interpretation. The statute at issue is ambiguous. The city sought the advice of counsel regarding its interpretation of the statute and the city's counsel endorsed its interpretation. In support of its construction of the statute, the city has set forth plausible arguments in its briefs. Even though the city detained monies payable to the plaintiffs based on the higher starting salaries of Abbatematteo and Jeffrey Cosette, there is no evidence that the city or any of its employees or officials acted in bad faith or with intent to punish the plaintiffs. Moreover, the city subsequently increased the plaintiffs' pension benefits to reflect cost-of-living increases awarded to the chief and deputy chief of police. As a result, an award of interest under § 37-3a is not warranted in this case.
CONCLUSION
The court finds in favor of the plaintiffs on their respective mandamus counts — one, four, seven, ten, thirteen and sixteen and against the plaintiffs on the remaining counts. In accordance with this opinion, the court hereby orders that the defendants:
1) Pay plaintiffs Kosienski, Caffrey and Matteucci increased pension benefits to reflect the higher starting salary of chief of police, Abbatematteo, such that those plaintiffs receive one-half of the prevailing rate of pay of the current chief of police;
The base annual salary of police chief Abbatematteo amounted to $85,000 and included holiday pay. The base annual salary of former chief of police, Kosienski, amounted to $75,058 and did not include holiday pay. Rather, Kosienski was paid an additional $3,464.16 for twelve holidays. For purposes of comparison and to prevent double recovery of holiday pay, the parties have agreed that if the plaintiffs prevail in this action, then in computing pension benefits due them under the statute, the defendants will deduct holiday pay from the starting salary. For example, pension benefit calculations for retired chiefs of police will be based upon the sum of $81,250, which represents Abbatematteo's starting salary of $85,000 minus twelve days of holiday pay.
2) Pay the plaintiff Nelson Cosette increased pension benefits to reflect the starting salary of deputy chief of police, Jeffrey Cosette, such that he receives one-half of the prevailing rate of pay of the current deputy chief of police;
3) Pay the plaintiffs Magruder and Custy increased pension benefits to reflect the higher starting salary of chief of police, Abbatematteo, such that those plaintiffs receive one-quarter of the prevailing rate of pay for the current chief of police;
The court will retain jurisdiction over this matter pending the defendants' computation and distribution of the plaintiffs' pension benefits in accordance with this opinion.
BY THE COURT
Tanzer, Judge