Opinion
No. CV 07-5008403-S, CV 07-5014021-S, CV 07-5008403-S
January 21, 2011
MEMORANDUM OF DECISION ON PARTIES' MOTION TO REARGUE THIS COURT'S DECISION OF SEPTEMBER 30, 2010
Plaintiffs move to reargue this court's decision of September 30, 2010 insofar as this court denied plaintiffs' counsel fees on the grounds that plaintiffs never sought to certify the action as a class action. The court grants plaintiffs' motion and, after reargument, determines it made a mistake as to that portion of its decision. Plaintiff did move to consolidate this action with Williams v. City of Hartford and also to certify the consolidated case as a class action. The court (Domnarski, J.) granted the motion. The reason this court did not see that order is that the plaintiffs' motion was listed on the computer as simply a motion to consolidate. This court corrects its decision of September 30, 2010 and will consider plaintiffs' counsel's claim for attorneys fees after the determination of an appeal of this case.
Defendant moves to reargue this court's decision on two grounds: (1) that the court's decision requiring Hartford to alter the calculation for plaintiffs' retirement pensions to stretch sick leave is unenforceable under General Statutes § 7-450(b); and (2) that the court's decision requiring Hartford to stretch accrued sick time for purposes of calculating retirement pensions did not specify that such stretching should not increase employees' years of service.
As to the first ground, this court thought its decision was essentially in favor of the defendant and so it did not have to consider the impact of Section 7-450a(b). The court was wrong. Defendant's motion indicates that the cost of stretching sick pay can amount to over $30,000 annually to the city just for the HMEA members and likely much more because the court has allowed this action to be a class action for all city employees.
Section 7-450a(b) provides:
No ordinance, resolution or other act altering the pension, retirement, or other postemployment health and life benefit system shall be enacted until the legislative body of the municipality has requested and received a qualified cost estimate from such enrolled actuary.
It is conceded that the City never requested nor obtained an estimate from an actuary for the costs of stretching accumulated sick time in calculating the employees' pension. On that basis defendant asserts that the provision of the collective bargaining agreement, which by the use of the term "gross earnings" requires stretching of sick leave, is unenforceable.
The relevant provision of the collective bargaining agreement provides:
Current bargaining unit employees as of December 1, 1998 shall be eligible for normal retirement upon completion of at least twenty (20) years of full time service regardless of his or her age. The normal retirement amount for such bargaining unit employee shall be based upon 2.5% of the employee's final average pay for each whole unit of service to a maximum of 70% of final average pay. The final average pay is defined as the highest two (2) of the last five (5) years of his or her gross earnings.
Defendant obtained a cost estimate for increasing the percentage of employees' final average pay from 2 percent to 2.5 percent in calculating normal retirement amounts and also for the twenty years and out provision, but it did not request or obtain a cost estimate for the impact of changing earnings to gross earnings in the above paragraph of the collective bargaining agreement. Defendants' excuse for this failure was a claimed "mistake" by its negotiator. But that paragraph, with "gross earnings," was sent repeatedly to many city officials including the city's corporation counsel, the city manager and members of the city council. These are not lay persons but officials familiar with the city charter and particularly with Section 3 (a) ii (5) B requiring the stretching of accumulated sick time when "gross earnings" is used in a contract. They cannot credibly claim mistake in approving the collective bargaining agreement.
Moreover, the agreement was renewed in 2005 with the phrase "gross earnings" in it. This second time there certainly was no excuse for the City not asking for a cost estimate of the consequence of gross earnings in the agreement.
Cost estimates do not fall out of the sky. They must be requested and the City was statutorily obligated to make that request.
Plaintiffs assert, with some justification, that there is something wrong about the City negotiating a collective bargaining agreement with its employees and then the City claiming a provision of the agreement is unenforceable because the City didn't request a cost estimate of that provision. But that is the law.
Section 7-450a(b) is cited in Fennell v. Hartford, 238 Conn. 809, 817, 681 A.2d 934 (1996) and in Sartor v. Town of Manchester, 312 F.Sup.2d 238, 245 (D.Conn. 2004) but in neither case are the facts similar to the instant case, nor the holding relevant to this case. However, in Sartor v. Town of Manchester, supra, the court noted, "The legislative history of [Section 7-450a] reveals that the main purpose behind mandating actuarial studies is to ensure that municipalities have adequate knowledge as to the future costs of their pension plans . . . Section 7-450a was a response to situations in cities `where serious deficits have suddenly cropped up and people haven't expected until they were all of a sudden confronting them and one of the major sources of these unprojected deficits was an inadequately analyzed actuarial plan for retirement plans.' [20 H.R. Proc., Pt. 10, 1977 Sess., p. 4238, remarks of Rep. Goodwin.]."
In Jack v. Torrant, 136 Conn. 414, 419, 71 A.2d 705 (1950), the town of Litchfield failed to comply with a state statute requiring a public hearing before a zoning regulation could be effective. Our Supreme Court stated, "The fundamental rule relating to municipal legislation is that an ordinance must be enacted in the manner provided by law . . . The rule applicable to corporate authorities of municipal bodies is that when the mode in which their power is to be exercised is prescribed . . . that mode must be followed."
To the same effect is First Church of Christ, Scientists v. Friendly Ice Cream, 161 Conn. 223, 226, 286 A.2d 320 (1971): "Compliance with the charter provision concerning notice and public hearing was a prerequisite to any valid and effective amendment of, or a change in, the zoning regulations."
Further, as stated in Bristol Resource Recovery Facility Operating Committee v. Bristol, Superior Court, judicial district of New Britain, Docket No. CV 92 0453461 (June 30, 1995, Parker, J.), "[T]he passage of an ordinance must follow the formal procedural steps specified by statute or charter."
Thus in the instant case, where the defendant failed to follow the statutory requirements of Section 450a(b) in altering the pension plan by stretching accumulated sick leave without requesting and receiving a qualified cost estimate from an actuary, that rendered that provision of the collective bargaining agreement unenforceable.
However, the plaintiffs may have a remedy. General Statutes § 7-474(b) provides that a bargaining representative of the municipality shall make a request for funds necessary to implement a collective bargaining agreement, and if the bargaining representative fails to make that request within a fourteen-day period after the date the agreement is reached, such failure "shall be considered to be a prohibited practice committed by the municipal employee." If a "prohibited practice" is deemed to be an unfair labor practice, then recourse may be had to the State Board of Labor Relations. General Statutes § 31-105 (10) and 31-107.
Since this court's decision is that the phrase "gross earnings" in the collective bargaining agreement, requiring the stretching of accumulated sick leave pay in calculating employees' pensions, is not enforceable by reason of General Statutes § 7-450a(b), the court need not consider defendants' second grounds for reargument, namely, that stretching accumulated sick leave cannot result in extending the service of employees.
One final note. The import of this decision is that if a city does not request a cost analysis for a change in the pension fund, the employee union should do so in order to assure the enforcement of the collective bargaining agreement.
Judgment may enter for defendant.