July 30, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On July 8, 2002, the plaintiff, John M. Thomas, filed a five-count revised complaint against the defendant, Andrew Ocif, alleging tortious interference, defamation, invasion of privacy by false light, intentional infliction of emotional distress and negligent infliction of emotional distress. (Revised Complaint.) At all times relevant to this action, the plaintiff and the defendant were both deputy sheriffs employed by the Litchfield County sheriff's department. ( Id.) Count one alleges that the defendant tortiously interfered with the plaintiff's employment. ( Id., p. 1, ¶ 3.) Specifically, count one alleges that "from late March of 1998 through late August of 1998, the defendant carried on a campaign of lies, deception and slander for the express purpose of causing the plaintiff to be fired from his position as a Captain in the Sheriff's Office for Litchfield County, Connecticut." ( Id.) Count two alleges that the defendant falsely and maliciously stated to several people "that the plaintiff committed sexually inappropriate conduct on more than one occasion while off duty in public locations." ( Id., p. 3, ¶ 3.) Count three incorporates the allegations of counts one and two and alleges invasion of privacy by false light. ( Id., p. 4.) Counts four and five incorporate the allegations of the prior counts and allege intentional and negligent infliction of emotional distress respectively. ( Id., pp. 4-5.)
Presently before the court is the defendant's motion for summary judgment. The defendant moves for summary judgment as to the entire complaint on the grounds that the plaintiff's claims are barred by the doctrine of sovereign immunity and/or by General Statutes § 4-165 which immunizes state officials from liability for damage or injury caused in the discharge of their duties or within the scope of their employment. (Defendant's Memorandum, pp. 6-14.) The defendant moves for summary judgment on counts two and three, the defamation and false light invasion of privacy claims, on the additional ground that the alleged defamatory statements were truthful reports of the plaintiff's actual conduct, and therefore fail to state a claim of defamation or false light invasion of privacy. ( Id., pp. 15-17.) The defendant moves for summary judgment as to count four, the intentional infliction of emotional distress claim, on the additional ground that the defendant's conduct, as a matter of law, lacked the outrageousness required to state such a claim. ( Id., pp. 18-19.) Finally, the defendant moves for summary judgment as to count five, the negligent infliction of emotional distress claim, on the additional grounds that (1) the claim should have been presented to the claims commissioner pursuant to General Statutes § 4-160 and (2) there is no evidence that the defendant acted negligently. ( Id., p. 20.)
General Statutes § 4-165 provides in relevant part:
Immunity of state officers and employees from personal liability. No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.
General Statutes § 4-160 provides in relevant part: "(a) When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable."
The pleadings, affidavits and other documentary evidence submitted in support of the defendant's motion for summary judgment establish the following relevant facts. In March 1998 both the plaintiff and the defendant were employed as deputy sheriffs by the Litchfield County sheriff's department. The defendant was the high sheriff of Litchfield County from 1991 through 1995, during which time he was the plaintiff's immediate supervisor. (Ocif Affidavit, ¶¶ 3-4.) The sheriff's department provides all employees with a "Code of Conduct" manual (the "code"). The purpose of the code is to establish minimally acceptable standards of conduct and responsibility for all employees in the sheriff system. (Meehan Affidavit, ¶ 8.) A violation of any code rule subjects the violator "to disciplinary action up to and including dismissal." (Defendant's Brief, Exhibit B1.) Paragraph 24 of Section "A" of the code provides: "Appointees must report all Code of Conduct or policy violations of professional conduct involving co-workers . . . to the High Sheriff or his designee in accordance with existing procedures." ( Id.) Paragraph 1 of Section "E" provides: "Appointees are prohibited from engaging in the racial or sexual harassment of other workers, prisoners, or members of the public in accordance with the Office of the County Sheriff's Administrative Policy and Implementing Procedure #97-3." ( Id.) Paragraph 2 of Section "F" provides: "Appointees shall not engage in unprofessional or illegal behavior on or off duty, that could reflect negatively on the Office of the County Sheriffs or on the High Sheriff of the County." ( Id.)
In March 1998 the plaintiff was also employed part-time as a bartender at Michael's Restaurant in Kent, Connecticut ("Michael's" or "the bar"). (Thomas Deposition, p. 31.) On several occasions, during a six-week period, the plaintiff engaged in sexual relations with three different women customers at the bar. ( Id., pp. 33, 35, 46-50.) Each incident took place during business hours, usually in a back area of the bar but also once in the dining room. ( Id.) Shortly after the incidents in question, one of the women complained to Patti Tiganni, the owner of the bar, that she had been coerced into having sexual relations with the plaintiff. ( Id., pp. 45, 49.) Tiganni informed the plaintiff of the woman's complaint and told him that "if [he] agreed to go quietly into the night . . . no charge would be filed against [him]." ( Id., p. 53.)
In March 1998 the defendant learned from a local resident that the plaintiff had engaged in sexually inappropriate conduct while working at Michael's and that he had "exposed himself" to female patrons. (Ocif Affidavit, ¶ 6.) The defendant reported these allegations to the then high sheriff of Litchfield County, Richard Zaharek, and urged him to conduct an investigation. ( Id., ¶ 7.) Zaharek asked Eileen Meehan, who was at the time the assistant director of the office of the county sheriffs in Hartford, to conduct the investigation. (Meehan Affidavit, ¶ 11.) Meehan investigated the allegations by interviewing the plaintiff, the owner of Michael's Restaurant and the women involved in the alleged incidents. ( Id., ¶ 13.) Meehan also interviewed the defendant and asked him to provide her "with certain material relevant to the investigation." ( Id.) Included in these materials were copies of two complaints against the plaintiff, made by two women prior to 1995, accusing the plaintiff of harassment. (Thomas Deposition, pp. 20-22, 77.) The defendant, who was high sheriff at the time of the two earlier complaints, had conducted the investigation into the complaints and prepared the reports on them. ( Id., pp. 20-21.) As a result of that investigation, the plaintiff was suspended from work for a period of one to two weeks. ( Id., p. 21.) Also included in the materials that the defendant sent to Meehan in 1998 were copies of statements made by two of the women involved in the 1998 incidents at Michael's Restaurant. ( Id., p. 77.) These statements were the product of interviews with the two women conducted by the defendant. ( Id.) After completing her investigation, Meehan concluded that the defendant had violated the code and recommended to High Sheriff Zaharek that the defendant be suspended from his employment with the sheriff's department. (Meehan Affidavit, ¶ 15.) The defendant was subsequently suspended for a period of forty-five days. ( Id., ¶ 16.)
The defendant first contends that the plaintiff's suit is barred by the doctrine of sovereign immunity because the defendant was acting in his official capacity at all relevant times and at no time acted in excess of his authority. (Defendant's Brief, pp. 8-12.) The plaintiff counters that, by removing materials from the plaintiff's personnel file and disclosing them to persons with no authority to see them, the defendant's conduct exceeded his statutory authority and therefore the doctrine of sovereign immunity does not apply. (Plaintiff's Brief, pp. 5-6.) The plaintiff further argues that statutory immunity under § 4-165 does not shield the defendant from personal liability because the defendant's conduct was wilful, wanton and malicious and therefore falls within the exception to § 4-165 immunity. The court disagrees with the plaintiff's arguments and concludes, based on the pleadings and evidence in the record, that the plaintiff's action is barred by sovereign immunity.
Although the defendant has raised the defense of sovereign immunity in a motion for summary judgment, "the doctrine of sovereign immunity implicates subject matter jurisdiction." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). A claim of lack of "subject matter jurisdiction . . . addresses the basic competency of the court [and] can be raised by the parties or the court sua sponte, at any time." (Internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). Accordingly, the court treats the motion for summary judgment as a motion to dismiss. See, e.g., Moss v. Commissioner of Correction, Superior Court, judicial district of Waterbury, Docket No. CV97-0140789 (September 17, 2001, Holzberg, J.). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint . . . construing them in a manner most favorable to the pleader." Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 729 A.2d 271 (1999). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
"We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the right depends . . . This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others . . . It does not necessarily follow, however, that every action in which state officials or members of state agencies are named defendants and designated by official titles should be treated as an action against the state such as to clothe the defendants with immunity from suit . . . Sovereign immunity does not bar suits against state officials acting in excess of their statutory authority or pursuant to an unconstitutional statute . . . In those cases in which it is alleged that the defendant officer is proceeding . . . in excess of his statutory authority, the interest in the protection of the plaintiff's right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine . . . In such instances, the need to protect the government simply does not arise and the government cannot justifiably claim interference with its functions . . . Where [however] no substantial claim is made that the defendant officer is acting pursuant to an unconstitutional enactment or in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction." (Citations omitted; internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 168-69, 749 A.2d 1147 (2000). "[I]n order to overcome sovereign immunity, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations." Id., 174-75.
Although our Supreme Court has "never defined the precise contours of the `in excess of statutory authority' doctrine; id., 170; cases wherein the Supreme Court has found that a state official acted outside of his or her statutory authority offer the appropriate framework for analyzing such a claim. In Antinerella v. Rioux, 229 Conn. 479, 642 A.2d 699 (1994), the Supreme Court considered for first time what facts a plaintiff must allege in order to support a claim that a state officer had acted in excess of his statutory authority. The court concluded that a high sheriff who had fired a deputy sheriff in order to take his business and personally benefit under an illegal fee-splitting arrangement with other sheriffs had acted in excess of a high sheriff's authority. Id., 491-92. The court stated: "When an elected official acts within the limits of his or her authority, we have little occasion to supervise, review, restrain or punish . . . and no reason to circumvent the doctrine of sovereign immunity. When, however, the state employee acts solely to further his or her own illegal scheme and not to carry out government policy, there is no reason to provide immunity from suit." (Citation omitted.) Id., 497. The court concluded that, "[b]y our decision we do not chip away at the doctrine, relax its parameters or expand any well developed exceptions. Rather than rely on any exception to the rule, we hold simply that the doctrine does not apply when there is a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." Id., 497.
In Shay v. Rossi, supra, 253 Conn. 134, the Supreme Court held that sovereign immunity did not protect employees of the department of children and families where there were allegations, supported by substantial evidence, that they had filed neglect and abuse petitions against the plaintiffs, not because they believed the plaintiffs were guilty of neglect and abuse but, rather, merely to justify prior and unjustified actions against them. The court stated: "The totality of these facts, if proven, would permit a fact finder to infer that the defendants filed the neglect and abuse petitions knowing that they were unjustified, and continued them with that knowledge and that they did so, not for the statutory purpose of protection of the children, but to justify their prior unjustified actions. These inferences would be sufficient to establish that the defendants' conduct was sufficiently egregious as to constitute conduct that was in excess of their statutory authority." Id., 180.
In Martin v. Brady, 261 Conn. 372, 377, 802 A.2d 814 (2002), however, the Supreme Court held that state police officers who allegedly entered and searched the plaintiff's home without a search warrant, damaged the plaintiff's property and physically assaulted the plaintiff while arresting him, were immune from suit under § 4-165 because such conduct fell within the scope of their employment. Id., 377. "In order to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment." Id., 377. The court stated: "In the present case, the plaintiff has alleged that the defendants sought his arrest, executed a search warrant and conducted a search in an attempt to effectuate that arrest. None of these actions was arguably outside the scope of their employment as state police officers. The arrest of the plaintiff was sought for legitimate government interests; namely, the extradition of a fugitive, the plaintiff . . . There was no allegation of a misuse of governmental authority for personal gain, as in Antinerella, nor was there any allegation of the extraneous manipulation of government authority in order to justify erroneous conduct, as this court found in Shay." Id., 379.
Similarly, nothing the defendant is alleged to have done in the present action was outside the scope of his employment as a deputy sheriff. That is, there is no allegation that the defendant misused his authority for personal gain or for illegal purposes. The plaintiff's argument that sovereign immunity is not applicable rests entirely on the claim that the defendant acted outside his statutory authority by (1) removing copies of prior complaints about the plaintiff from the plaintiff's personnel file — complaints which the defendant himself had investigated and transcribed when he was high sheriff, and (2) turning them over to the authority investigating the 1998 complaints. (Plaintiff's Brief, pp. 5-6.) In Martin v. Brady, supra, however, our Supreme Court held that allegations that state police officers searched the plaintiff's home, once without a warrant and once pursuant to a fraudulently obtained warrant, destroyed the plaintiff's property and physically assaulted the plaintiff, were insufficient to defeat the police officers' sovereign immunity because the officers' conduct was, at all times, arguably related to their duties as state police officers and in furtherance of legitimate state purposes. Id. Similarly, the defendant's conduct in the present action was also in furtherance of a legitimate state purpose related to his employment, namely the sheriff department's investigation into allegations of professional misconduct involving a deputy sheriff. That the person in charge of the investigation expressly requested that the defendant provide her with materials relevant to the investigation underscores, in the court's view, the important nexus between, the defendant's conduct and the defendant's employment. Accordingly, even if ultimately the defendant was not the proper person to transmit the personnel file materials, such conduct does not rise to the level of being "in excess of statutory authority" so as to defeat sovereign immunity, at least not as the doctrine has been explained and applied by our Supreme Court.
Because the doctrine of sovereign immunity is dispositive of the defendant's motion, the court need not address the defendant's other grounds for summary judgment.
For the foregoing reasons, the case is dismissed.