Opinion
No. CV 04-0834669
March 24, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This is an action by Larry Meade, father of Starseyah Meade, a former student at Noah Webster Elementary School in Hartford, seeking damages for defendants' alleged negligence in allowing Starseyah to be sexually assaulted, harassed and bullied during the 2000-01 school year.
The named defendants, City of Hartford, Hartford Board of Education, State Board of Trustees for the Hartford Public Schools, Anthony Amato, school superintendent and Freeman Burr, school principal, on July 28, 2004 moved to dismiss the revised complaint dated July 19, 2004 for (1) insufficiency of service on the individual defendants and (2) the sovereign immunity encasing the state board of trustees and the individual defendants.
I.
In considering the sufficiency of service on Amato and Burr, the return of service dated May 26, 2004 indicates in separate paragraphs that Amato was served by leaving a copy of the writ, summons, complaint, and required financial statements "in the hands of Lydia Cora, Deputy City Clerk . . . duly authorized to accept service on behalf of the within named defendant Anthony Amato."
The return of service was similar for Burr except that he was identified as "principal, Noah Webster Elementary School."
Those individuals claim that since they were not served in hand or at their individual abode as required by Conn. Gen. Stat. § 52-57(a), service on them was not effective.
Plaintiff claims that valid service was made under Conn. Gen. Stat. § 52-57(b) which provides in relevant part "Process in civil actions against the following — described claims of defendants shall be served as follows:
(7) against an employee of a town, city or borough in a cause of action arising from the employee's duties or employment, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the employee.
Defendants claim in the case of Amato, that on May 26, 2004 when the complaint was served that Amato was no longer employed as superintendent after November 2002 and that Conn. Gen. Stat. § 52-57(b) does not apply to a former employee.
Burr claims that Conn. Gen. Stat. § 52-57(c) does not apply to him because he is not an employee of the City of Hartford, but of the board of education, which is a separate agency not covered by the statute.
Both the questions of sufficiency of service and the applicability of the sovereign immunity defenses must be considered in the context of the unique situation of the Hartford school system during the period in which this cause of action arose.
On July 1, 1997 Special Act 97-4 ( S.A. 97-4) became effective. S.A. 97-4 recognized that the Hartford Public Schools were in a state of crisis and created the State Board to replace the Hartford Board of Education on an interim basis. The seven voting members of the State Board were appointed jointly by the governor, the minority leader of the house of representatives, the president pro tempore of the Senate, the majority leader of the Senate and the minority leader of the Senate. The Mayor of Hartford had the power to appoint one ex-officio non-voting member of the State Board. The State Board was required to submit quarterly reports to the governor regarding the status of the Hartford Public Schools. Additionally, S.A. 97-4 provided that the City of Hartford was to remain responsible for financial obligations and liabilities.
S.A. 97-4, § 3 provides in pertinent part, "There is established a State Board of Trustees for the Hartford Public Schools consisting of (1) up to seven members appointed jointly by the Governor, the speaker of the House of Representatives, the majority leader of the House of Representatives, the minority leader of the House of Representatives, the president pro tempore of the Senate, the majority leader of the Senate and the minority leader of the Senate, and (2) the Mayor of the city of Hartford who shall be an ex-officio nonvoting member." Internal quotation marks omitted.)
S.A. 97-4, § 9 provides, "On or before October 1, 1997, the Commissioner of Education and the State Board of Education shall report to the Governor, and the joint standing committee of the General Assembly having cognizance of matters relating to education on the operation of the Hartford school district and progress made under the management of the State Board of Trustees for the Hartford Public Schools. Such a report shall be made on a quarterly basis until the management of the Hartford school district is returned to the control of the Hartford Board of Education pursuant to section 2 of this act." (Internal quotation marks omitted.)
S.A. 97-4, § 4(d) provides, "The city of Hartford shall remain financially responsible for any liabilities or obligations, including contingent liabilities and obligations, incurred by the city council or the Hartford Board of Education prior to June 1, 1997." (Internal quotation marks omitted.)
The State Board was disbanded on December 2, 2002 and replaced by the Hartford Board of Education effective December 3, 2002. The Hartford Board of Education consisted of seven members; four members, which were jointly appointed by the Mayor of Hartford and the Hartford City Council, and three other members, who were publically elected.
On May 26, 2004, the plaintiff served the State Board pursuant to Conn. Gen. Stat. § 52-57 by leaving a copy of the writ, summons and complaint having a return date of June 29, 2004 with the Attorney General. On the same date, the plaintiff served the City of Hartford, Hartford Board of Education, Amato and Burr pursuant to Conn. Gen. Stat. § 52-57(b)(7) by leaving a copy of the writ, summons and complaint with the Hartford Deputy City Clerk. The complaint was filed in court on June 2, 2004 and on June 29, 2004, the defendants' counsel filed an appearance in the case.
This court heard oral argument regarding the pending motion to dismiss on November 29, 2004.
II
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 necessarily implied from the allegations, construing them in a manner most favorable to the pleader. Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
Statutes proscribing the manner in which to serve a complaint are no exception to this well-established and accepted rule of statutory construction and, accordingly, the mandatory manner in which to serve a complaint must be followed to the letter regardless of any constructive notice of the complaint that the defendant received. Bridgeport v. Debek, supra, 210 Conn. 179-80 ('Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.'); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004).
In the past, this court has interpreted Conn. Gen. Stat. § 52-57 as requiring former town employees to be served at their usual place of abode or in hand, not upon the agent of the town where the employee formerly worked. Cross v. Nearine, Superior Court, judicial district of Hartford at New Britain, Docket No. CV 0538675 (February 17, 1995, Wagner, J.). In 2003, however, the legislature via Public Act No. 03-278 ( P.A. 03-278) amended Conn. Gen. Stat. § 52-57(b) to add the present subsection 7. As a consequence of Conn. Gen. Stat. § 52-57(b)(7), a plaintiff now has two available options by which to obtain personal jurisdiction over the defendant who is an employee of a town: Where it is alleged that an employee of a town is liable for misconduct arising out of his duties as a town employee, the plaintiff can serve the town clerk under Conn. Gen. Stat. § 52-57(b)(7) or the plaintiff can simply serve the employee in hand or abode pursuant to Conn. Gen. Stat. § 52-57(a).
III.
The defendant argues that the action against Burr should be dismissed because Burr should have been served pursuant to Conn. Gen. Stat. § 52-57(a) as an individual and not under Conn. Gen. Stat. § 52-57(b)(7). The defendants alternatively argue that Burr was an employee of the State Board and not the City of Hartford at the time of service so that any service under Conn. Gen. Stat. § 52-57(b)(7) as an employee of the City of Hartford was ineffective. Regarding Amato, the defendant also argues that the action against Amato should be dismissed because Amato was not employed as the Superintendent of the Hartford Schools after November of 2002 so that, even if Amato is considered an employee of either the Town of Hartford or the State Board at some point in time, service was ineffective because Amato was not an employee of either entity on the date of service. The plaintiff counters that the complaint was properly served pursuant to Conn. Gen. Stat. § 52-57(b)(7) because Burr was employed by the City of Hartford and the action arises out of Burr's conduct as an employee of the Town of Hartford. The plaintiff relies chiefly on the fact that local boards are dichotomously treated as agents of the state for some purposes while being agents for the municipality in which they reside for other purposes. The only evidence however, that the plaintiff offers evidencing Burr's and Amato's employment by the City of Hartford are contained in his allegation that the City of Hartford compensated Burr and Amato.
The parties have not cited any authority interpreting Conn. Gen. Stat. § 52-57(b)(7). Moreover, no case interpreting Conn. Gen. Stat. § 52-57(b)(7) has been called to the court's attention. The OLR Bill Analysis with respect to this statute sheds no light as to whether this section was meant to be applied to a former employee. The problem with service here, however, is caused by the dual roles which local boards play in Connecticut, complicated by the arrangements under which the schools were being operated under S.A. 97-4. Considering all the circumstances it is concluded that service as to Burr could be effectuated under Conn. Gen. Stat. § 52-57(b)(7) because he was basically an employee of the City of Hartford. He was in a position of authority as the school principal of the Noah Webster School and responsible for supervising the students at the school. Additionally, although the plaintiff does not offer affidavits or other evidence, the plaintiff asserts, without contradiction, that Burr was compensated by the City of Hartford.
IV.
On the other hand, it is concluded that Amato was not validly served under Conn. Gen. Stat. § 52-57(b)(7). Although, the statute does not define the term employee, the term employee commonly refers to one who is presently employed in an agency relationship, and furthermore, analyzing subsection b(7) of § 52-57 in relation to the rest of the other subsections of Conn. Gen. Stat. § 52-57 and other statutes in chapter 52, clearly indicate that Conn. Gen. Stat. § 52-57(b)(7) is designed to alert both a town and an employee of a pending lawsuit. Any other conclusion would permit any former employee no matter how far back he was employed to be served under this statute. Because the statute is designed to provide notice, Conn. Gen. Stat. § 52-57(b)(7) would seem to apply to present employees for several logical reasons. First, an employer is more likely to have contact with or know where a current employee resides since the agency relationship still exists and employer is still responsible for supervising the employee's actions. Hence, when dealing with a current employee, the employer can better carry out its obligation of forwarding a copy of the writ, summons and complaint to the employee. Second, in many instances the town will actually be the one defending the suit or indemnifying the employee where the alleged harm occurred within the scope of the employer/employee agency relationship. On the other hand, an employer in many circumstances will not have frequent contact with a former employee and is no longer responsible for keeping tabs of where the employee resides. This lack of contact makes forwarding a complaint, writ and summons to a former employee more difficult. Moreover it appears, that Amato was not employed by the City of Hartford on the date of service of May 26, 2004 because he was employed in Louisiana on the date of service.
The motion to dismiss by Amato for insufficiency of service is granted; the motion by Burr is denied.
V.
The defendants assert that the individual defendant, Burr, as an employee of the State Board, and the State Board itself are both entitled to sovereign immunity because the State Board was created by the legislature and is thus an arm of the state. The plaintiff claims that the State Board cannot invoke sovereign immunity because it was not an entity of the State of Connecticut, but it was rather an entity of the City of Hartford and S.A. 94-7 did not explicitly grant it sovereign immunity. Moreover, the plaintiff sites other factors, which would indicate that the state has no pecuniary interests in this matter because the language of S.A. 94-7 expressly provides that the City of Hartford was responsible for financial obligations during the State Board's tenure and that the State Board functioned solely within the City of Hartford, which strongly suggest that the State Board was exclusively an entity of the City of Hartford.
Ordinarily under Connecticut law, "[e]ach town . . . [is] a school district . . . and . . . each town's board of education is merely the instrumentality through which the town maintain[s] the control of all the public schools within its limits." (Internal quotation marks omitted.) Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 542, 556 A.2d 572 (1929). "[L]ocal boards of education act as agencies of the state when they are fulfilling the statutory duties imposed upon them pursuant to the constitutional mandate of article eighth, § 1. Local boards of education are also agents of the municipality that they serve, however." Cheshire v. Mckenney, 182 Conn. 253, 258, 182 Conn. 253 (1980). Thus, "our jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others." Heigl v. Board of Education, 218 Conn. 1, 3-4, 587 A.2d 423 (1991). Moreover, "[e]ach school district [is] a body corporate and [has the] power to sue and be sued . . ." General Statutes § 10-241. However, S.A. 97-4 provides, in pertinent part, "[t]he State of Board of Trustees for the Hartford Public Schools shall be the board of education, as such term is used in chapter 170 of the general statutes, for the Hartford school district with the duties, rights and responsibilities of such board of education as established in any provision of law, except as provided in this act."
Connecticut courts apply a multi-faceted test to determine if an entity is actually an arm of the state with right to invoke an immunity defense. In Dolnack v. Metro-North Commuter Railroad Co., 33 Conn.App. 832, 836-37, 639 A.2d 530 (1994) our Appellate Court articulated the test for determining whether an entity is an arm of the state as follows:
[s]everal factors for consideration have evolved in determining whether a given entity is an "arm" of the government entitled to be clothed in the tort immunity of the state. These inquiries include whether the entity was created by the state and to whose control the entity is subject, an analysis of the issues involved and the relief sought, whether the state itself has a pecuniary interest or a substantive right in need of protection, whether the governmental body functions statewide, does the state's work, was created by the state legislature and is subject to local control, and to what extent the entity depends financially on state coffers, and whether the instrumentality was created as a state agency and empowered to accomplish a public purpose. Some other considerations are the character of power delegated to the governmental body by a legislative enactment, the relation of the entity to the state, whether the entity is a public corporation separate from the state, and whether the instrumentality uses state owned land or owns the land independently. The fact that an entity was created by a state statute does not alone establish that it is an am of the state. Indeed, all of the above characteristics must be examined before a trial court can conclude that a governmental body is entitled to sovereign immunity.
See also Gordon v. H.N.S. Management Co., 272 Conn. 81, 102-04, 861 A.2d 1160 (2004) (holding that the trial court, after first conducting a trial-like hearing, improperly determined that a private-public was not an entity of the state where key employees testified at the hearing to such matters that the entity was entirely financially dependant upon the state, the entity's bus service was subject to control and oversight by the state and the entity's budget was closely monitored by the state); See also CT Page 5370 Humfire v. O'Connor, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 94 55806 (May 7, 1997, Klaczak, J.) in which the court considered the plaintiff's affidavits that he was solely employed and paid by the state of Connecticut and also his prior judicial admissions that the entity in question was a division of a state organization.
There are considerations which weigh on each side in making a determination under this motion as to whether the State Board is an arm of Connecticut which can invoke a sovereign immunity for itself and Burr. Under the Dolnack test, there are factors indicating that the State Board was an arm of Connecticut because the state created the State Board and that the State Board conducted an important public function of ensuring that state's students would be educated in a time of crisis. Furthermore, the ability of the Connecticut government to elect all the voting members of the State Board and the State Board's obligation to submit quarterly reports to the governor for review suggest that Connecticut controlled and managed the State Board's conduct. Moreover, when the State Board disbanded on December 2, 2002, the members of the then newly created Hartford Board of Education were elected by Hartford City officials and the Hartford Board of Education was not required to report to the Connecticut Governor.
On the other hand, there may be reasons to conclude that the State Board is not an arm of the state. The State Board operated exclusively within the City of Hartford on land which was not owned by the state. Additionally, the text of S.A. 97-4 as amended by S.A. 01-7 provided that City of Hartford, not the state, remains financially responsible for all obligations.
There is simply insufficient evidence submitted in the affidavits which would shed light on the presence or lack of management and control by the state and detailed information from individuals involved in the financial, supervisory and managerial operations of the State would be required to reach a reasoned conclusion as to whether sovereign immunity should apply to the defendants in this case. However, the defendants bear the burden of proving their sovereign immunity.
Accordingly, the motion to dismiss on the ground of sovereign immunity is denied.
Wagner, JTR