Opinion
No. LLI CV 07 4005617S
September 26, 2007
MEMORANDUM OF DECISION
The defendant, Town of New Milford, has filed this motion to strike (#120) the second and sixth counts of the plaintiff's complaint. For the reasons that follow, the motion must be denied.
The plaintiff, John Spatola, alleges that in 2004 he was an elected member of the New Milford Board of Finance. On February 16, 2004 a man named John Kane filed a complaint with the New Milford Ethics Commission against the plaintiff alleging that he engaged in malicious, wanton or willful acts while acting in discharge of his duties as a member of the Board of Finance. On February 27, 2004 the plaintiff hired counsel to defend himself against the claims made by Mr. Kane. The plaintiff incurred legal expenses of $152,747.20 in defending himself against Mr. Kane's complaint which was dismissed on September 29, 2006. The plaintiff further alleges that "on or about November 21, 2005, demand was made upon the defendant for reimbursement for the legal fees and costs incurred in defending" against Mr. Kane's complaint. The defendant has refused to reimburse the plaintiff. On February 8, 2007 the plaintiff commenced this action to recover his fees and expenses. The operative complaint for purposes of this motion to strike is the revised amended complaint dated May 29, 2007 in six counts. The defendant has moved to strike counts one, two and six. The plaintiff has withdrawn count one.
Count two seeks reimbursement pursuant to C.G.S, § 7-101a(b). The defendant moves to strike this count on the grounds that 1) the plaintiff fails to allege that he was the target of a "claim, demand or suit" as those terms are used in the statute, and that 2) the plaintiff fails to allege that the plaintiff filed a written notice with the Town Clerk in accordance with the terms of the statute.
C.G.S. Section 7-101a(b) provides; "In addition to the protection provided under subsection (a) of this section, each municipality shall protect and save harmless any such municipal officer or municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or willful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties. In the event such officer or employee has a judgment entered against him for a malicious, wanton or willful act in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense and shall not be held liable to such officer and employee for any financial loss or expense resulting from such act." (Emphases added.)
With respect to the first argument, the defendant asserts that the words "claim, demand or suit" do not include an ethics complaint which does not expose the plaintiff to liability for monetary damages. The defendant cites the legislative history of § 7-101a and several cases from which it asks the court to draw an inference that only the defense of claims which could subject the municipal officer to the payment of damages may be presented for reimbursement under § 7-101a. The defendant also cites the New Milford Code of Ethics for the proposition that no monetary damages or penalty may be awarded under it. Therefore, argues the defendant, the plaintiff is not entitled to reimbursement for legal fees incurred in defending an ethics complaint.
The plaintiff counters this argument in two ways. First, he argues that an ethics complaint is a "claim" or "demand" as those words are usually defined. Second, he argues that the plaintiff was subject to a financial penalty under the version of the New Milford Code of Ethics which was in effect at the time of the complaint against the plaintiff. Only the first argument will be considered. In connection with this motion to strike, the court does not have sufficient information to determine which version of the code was in effect. Therefore, it is impossible to determine whether the plaintiff was at risk for a financial penalty. However, this impossibility is not important in light of the resolution of the first issue.
With respect to the first issue, the plaintiff is correct that the plain meaning of the words "claim" or "demand" could encompass an ethics complaint. The first definition of "claim" in Webster's Third New International Dictionary is "an authoritative or challenging request." The first definition of "demand" is "the act of demanding or asking especially with authority; a peremptory request." A complaint to a local ethics commission falls within both definitions. There is nothing in either definition which would imply that the complaint must seek monetary relief. My review of the cases and legislative history cited by the defendant does not lead to the conclusion that the legislature intended different definitions of these words.
The defendant's second argument is that the plaintiff failed to plead that the plaintiff filed timely notice of demand with the town clerk as required by subsection (c) of § 7-101a. In count two the plaintiff alleges that: "On February 21, 2007, the plaintiff filed written notice of his intent to commence this action and of the time and place where the damages were incurred with the Town Clerk of the Town of New Milford, Connecticut." This is a sufficient allegation of notice.
C.G.S. section 7-101a(c) provides: "No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefore arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued."
The defendant also argues that the plaintiff's notice was late. He claims that the cause of action accrued on February 27, 2004 when the plaintiff retained counsel. Notice was given on February 21, 2007, far beyond the six-month limitation period. However, the plaintiff argues that the cause of action did not accrue until the ethics complaint was dismissed on September 29, 2006. I agree with the plaintiff.
Accrual of a cause of action is measured from the point in time when the plaintiff first could have successfully maintained an action. Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 609 (2001). The Supreme Court has stated that C.G.S. § 7-101a establishes a right to indemnification, not a right to a defense. Orticelli v. Powers, 197 Conn. 9, 11 (1985); Vibert v. Board of Education, 260 Conn. 167, 173-74 (2002). The defendant town is not required to provide a defense to an employee against whom a claim is made for wanton, wilful or malicious conduct. Vibert, supra, 260 Conn. at 175. The town's obligation is to reimburse the employee for his or her expenses if he is successful. The plaintiff's cause of action would not have accrued against the defendant town until the complaint was dismissed because it is not until then that plaintiff would have had been able to successfully bring an action for reimbursement. Therefore, the plaintiff gave notice in a timely fashion. The motion to strike is denied.