Opinion
No. CV 07 501195 S
February 24, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
A.
In this case the plaintiff has brought an action under § 53-39a of the general statutes for legal fees, back wages, and other forms of compensation. The city has filed a motion to dismiss for lack of subject matter jurisdiction. On February 25, 2003 the plaintiff was arrested on several charges in connection with use of his firearm in a January 2003 incident.
On February 25, 2003 the Chief of Police forwarded a letter to the plaintiff, who was a member of the city police force and union. The letter begins by referencing the date of the arrest and the criminal charges against the plaintiff. In the second paragraph the chief says the following:
The conduct that led to your arrest causes me grave concern about your ability to perform your job and reflects negatively on the Hartford Police Department. I am suspending you without pay pending the outcome of this matter through administrative procedures.
At the time of the incident a collective bargaining agreement existed between the city and the police union. A disciplinary hearing was held and the plaintiff was terminated from the department on November 16, 2004. The union grieved this action of suspending then terminating the plaintiff, the grievance is pending with four hearing dates set down in July and August of this year. In the grievance the union seeks reinstatement, back pay and restoration of benefits from the date of the suspension on February 25, 2003.
A trial was held on the criminal charges in October 2006 and the plaintiff was acquitted on all charges. In the criminal proceedings the plaintiff was represented by Attorneys Hugh Keefe and Michael Georgetti.
As indicated the plaintiff has now brought suit under § 53-39a which is the subject of this motion to dismiss. That statute in relevant part reads as follows:
Whenever in any prosecution of an officer of . . . a local police department for a crime allegedly committed by such officer in the course of his (her) duty as such, the charges dismissed or the officer found not guilty, such officer shall be indemnified by his (her) employing governmental unit for economic loss sustained by him (her) as a result of such prosecution, including the payment of any legal fees necessarily incurred. Such officer may bring an action in Superior Court against such employing governmental unit to enforce the provisions of this section.
B. (1)
As indicated the city has filed a motion to dismiss, claiming the court has no subject matter jurisdiction to grant relief under § 53-39a apart from legal fees.
The court will try to set forth the city's jurisdictional argument. Basically the city, to advance its jurisdictional argument, must take the position that apart from legal fees the damage claims advanced in this litigation can be argued for under the grievance procedure of the collective bargaining agreement (agreement). Given that premise reference can be made to Sobczak v. Board of Education, 88 Conn.App. 99, 103 (2005), where the court said:
It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs' union. Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction. The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.
It does appear that in this litigation the plaintiff seeks relief which he could also pursue in the grievance that he has filed in the sense that he could make the same damage claim.
(ii)
An analysis of the problem can proceed in separate stages. First § 53-39a must be analyzed to determine whether if anything beyond legal fees are recoverable thereunder. No appellate court in our state has decided this issue. Two trial judges have written decisions which appear to recognize that under the statute awards for back pay, overtime, etc. can be awarded as indemnification. See Smith v. Hartford, CV02-0815432 (O'Neill, J., 2003), cf Hartford v. Hartford Police Union, CV02-0818912 (Rittenbrand, JTR, 2003). In the latter case Judge Rittenbrand also noted that in considering an award for back pay etc. the grievance panel, whose award was being appealed, the union contract provided that an officer can enjoy all the legal rights provided by statute. The court held this incorporates by reference § 53-39a so that back pay can be awarded from the time of suspension. Both collective bargaining agreements in this case have the same language in Appendix A which is entitled "Employee Rights."
Judge Rittenbrand then was of the opinion that in arbitration, the Panel deciding the grievance can and should take into account § 53a-39 and the relief it provides and given paragraph 5 of Appendix A he was of course correct.
Returning to the issue as to the ambit of relief under § 53-39a the court would also note the language of the court in Santana v. Hartford, 94 Conn.App. 445, 450 (2006), where the court said: "Specifically the plaintiff argues that he was entitled to economic indemnification under § 53-39a because the charged crimes allegedly were committed in the course of his employment as a police officer (f3). The referenced footnote 3 states that "the parties agreed the plaintiff was entitled to indemnification" which in addition to attorneys fees included back pay, reimbursement for holidays, etc. The court obviously was referring to a damage claim provided by § 53-39a. The court never decided the issue of whether the statute provided anything beyond attorneys fees; it did not have to because it held the charged crimes were not committed in the course of employment — a statutory requirement. But it is interesting to note that a trial court like an appellate court can enforce a lack of subject jurisdiction at any time and do so sua sponte, Webster Bank v. Zak, 259 Conn. 274, 276 (2002). The court chose to not raise the issue, it did not have to in light of its decision on the non-applicability of the statute but it is interesting to note its lack of comment.
Clearly, however, there is no appellate authority that supports the plaintiff's claim that a litigant under § 53-39a is entitled to anything more than legal fees. So the court will itself examine the statute. The statute explicably talks of indemnification "for economic loss sustained by him (her) as a result of such prosecution, including the payment of legal fees necessarily incurred." The statute could have simply provided indemnification for legal fees. It did not. It used a generic term like "economic loss" and said "legal fees" are included in what under ordinary English usage would be a larger universe. "Legal fees" are part of the concept of economic loss — what else could be included in a claim against the subject "employing governmental unit." It would have to be back wages, lost vacation time, etc.
The court concludes then that § 53a-39 encompasses more than legal fees as a recovery for an officer acquitted of a crime. The court should note that it had the legislative history of this 1973 act researched and no reference was made to the issue at hand.
In any event having reached the foregoing conclusion the court must now address the lack of subject matter jurisdiction argument for failure to exhaust administrative remedies.
The last sentence of the statute does state that an officer can bring an action in Superior Court against the employing governmental unit "to enforce the provisions of this section." Is that mere verbiage? Was the legislature contemplating a "governmental unit" in our state that had no collective bargaining unit with no grievance procedure for back pay, etc. upon a finding suspension or termination was not justified under the agreement? The legislature certainly has the inherent power to explicitly provide a statutory remedy even where a collective bargaining agreement provides for the relief requested upon adjudication. That is the implication of Shortt v. New Milford Police Department, 212 Conn. 294, 304 (1989), Triglia v. Hartford, 217 Conn. 490, 494 et seq. (1991). Where the legislature does not explicitly so state these cases merely state one must look to the intent of the legislature as expressed in the statutory language.
Where there is no explicit grant in the statute of a right to bring an action independent of the collective bargaining agreement, and that is a fair conclusion here, Shortt v. New Milford Police Department, 212 Conn. 294, and Trigila v. Hartford, 217 Conn. 490 (1991), formulate the test to be used in such cases. The court in Trigila said . . ."the legislature can confer upon an employee a substantive statutory right independent of existing labor relations statutes and administrative procedures associated therewith . . . the test is whether the legislature intended, on the one hand to provide a substantive right independent of collective bargaining or, on the other hand, to provide an enhanced remedy ancillary to and conjointly with rights established as a matter of collective bargaining," 217 Conn. at page 495.
The court referring to Shortt said there it held that a statutory claim for unpaid wages "furnished only an additional remedy and thus required exhaustion of applicable grievance and arbitration procedures," Id. In Trigila itself the court said it would examine the collective bargaining agreement "to determine whether its provisions manifest the parties' intention to include statutory claims about the validity of an unpaid leave within the agreements designated grievance procedures." Id., p. 496. The court held the plaintiff had no right to pursue an independent statutory remedy.
The court has previously referenced Judge Rittenbrand's decision to the effect that arbitrators under the Hartford Union Contract must give deference to the provision in the contract that officers enjoy all legal rights guaranteed by state statutes which would of course include § 53-39a.
This has been a difficult issue for the court. The problem here is that the issue here does not easily fall within the Shortt-Trigila test. The rights under the statute accrue here not under the auspices of the collective bargaining agreement but from something outside and independent of it — the fact that an independent state agency, the state's attorney, has chosen to prosecute a case which results in the plaintiff's acquittal. The accrual of any damages to determine "economic loss" does not turn on dates of suspension or termination which then might raise questions of retroactivity under the contract.
This view is further supported by § 31-51bb of the general statutes which gives employees blanket rights to pursue litigation despite the existence of collective bargaining agreements:
No employee shall be denied the right to pursue, in court of competent jurisdiction, a cause of action arising under the state or federal constitution or under a state statute sought solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for a breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.
The first sentence explicitly allows an employee to proceed under a state statute. The only limitation on this right is that the employee cannot go to court to make a claim of a "breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement."
No claim is being made for breach of the agreement. The officer who receives an acquittal after the prosecution of a criminal case is suing under the statute for simply economic loss — there is no reference in the agreement nor can there logically be any right to grieve for a failed prosecution by an outside state agency. How on earth can that be a subject of a grievance against the city? The timelines of any damage claim against the city are not governed by the provisions of the agreement but are determined by the date of the initiation of the prosecution and its termination which of necessity terminates upon the acquittal. In that light it is difficult to say that the claim is dependent upon the provisions of the collective bargaining agreement." The last sentence is just a variation of the preceding one. The agreement here would just be referenced to determine the amount, if any, of an award.
The court denies the motion to dismiss but would note that any damage claim apart from legal fees should not extend beyond the date of the acquittal. The plaintiff's suspension and termination beyond that date rest on the city's assertion of a right to so act apart from any persecution and resulting acquittal, apart from what might now originally prompted it to act. The standard for criminal convictions is much higher than that placed on police departments in deciding whether to suspend and terminate for conduct on becoming an officer or other violation of the collective bargaining agreement.
Also it is clear that to prove a claim under the statute the plaintiff must prove that the economic loss, apart from legal fees, was the result of the initiation of the prosecution. If any of the foregoing two prerequisites are not enforced, in the court's opinion issues of subject matter jurisdiction would be raised based on application of the doctrine of failure to exhaust administrative remedies.