Opinion
No. CV 4000065 S
December 14, 2006
MEMORANDUM OF DECISION
The plaintiff, a retired Waterbury police officer, is appealing the administrative determination of the Defendant City of Waterbury Retirement Board ("Defendant Board"). Such appeal is filed pursuant to § 35.20 of Title III of the Final Amended Ordinance Regarding the Pension and Retirement System of the City of Waterbury, effective November 10, 2003. Specifically, the plaintiff is appealing the award of disability pension by the Defendant Board, claiming that the Board abused its discretion when it failed to award him a disability pension that took into account the extent of his actual disability.
The Court takes judicial notice of Section 35.20 of Title III of the Final Amended Ordinance Regarding the Pension and Retirement System, City of Waterbury, from the court file in Cosgrove v. City of Waterbury, 4000064S, pursuant to State v. Bunkley, 202 Conn. 629, 648 (1987). Section 35.20 states in pertinent part: "[A]ny person aggrieved by any decision of the Retirement Board may, within thirty (30) days from the date when such decision was rendered, take an appeal to the Superior Court for the Judicial District of Waterbury in New Haven County . . . The Court, upon such appeal, and after a hearing thereon, may reverse or affirm, wholly or partly, may modify or revise the decision appealed from, or may remand the matter to the Retirement Board for further proceedings . . ."
The Court finds the following facts. The plaintiff was hired by the City of Waterbury on November 30, 1981. (Return of Record (ROR), Item 1a.) At all times pertinent to this action, the plaintiff was a member of the Defendant City of Waterbury's Police Department and as such, a member of Local 1237, Council 15, American Federation of State, County, and Municipal Employees (ROR 5a). The Plaintiff submitted an application for a disability pension on February 27, 2004 (ROR 1a). As of that date, the plaintiff's terms and conditions of' employment were set forth in a collective bargaining agreement ("the Agreement") between the plaintiff's bargaining unit and the Defendant City of Waterbury, effective July 1, 2000 through June 30, 2005 (ROR, 5). Pursuant to Article 23 (entitled "Pension"), § 12 of the Agreement, the Plaintiff was evaluated by four physicians appointed by the Defendant Board: Drs. Richard Dyer, Richard Loyer, Dennis Dobkin and James Flint, for the purpose of establishing the existence of and the extent of his disability (ROR, 1d, 1e, 1f and 1g). On April 6, 2004, the Plaintiff submitted a substitute application for disability, citing heart and hypertension as the basis for the claim of disability (ROR, 1b).
Dr. Dyer stated that the plaintiff was permanently and totally disabled from performing his job as a police officer due to his diagnosis of "S/P Lumbar Dissectomy, S/P Cervical Fusion, S/P ACL Repair" (ROR 1d). Dr. Loyer diagnosed the plaintiff as totally and permanently disabled from performing all work due to his diagnosis of "degenerative lumbar/lumbosacral disc" (ROR, 1e).
Dr. Dyer reviewed the Plaintiff's MRI scan of the lumbar spine, indicating some degenerative changes in the lumbosacral spine area and made a diagnosis of chronic lumbosacral spine strain/degenerative disc disease. He also stated that the Plaintiff was not disabled from performing other work (ROR, 1d). Dr. Dyer diagnosed the Plaintiff with chronic lumbar strain, discogenic, stable at the present time. He also stated that the Plaintiff was unable to return to his occupation as a police officer because his lumbar symptoms were aggravated by the duties required by the job. Dr. Dyer also stated that the Plaintiff was able to return to other employment other than that as a police officer (ROR, 1d). Cardiologists Dobkin and Flint concluded that the Plaintiff was totally and permanently disabled from performing police work, but not totally and permanently disabled from performing other work. (ROR, 1f and 1g.)
The Defendant Board conducted a hearing in regards to the Plaintiff's application for a disability pension on June 10, 2004 (ROR, 3a). At the hearing, Plaintiff's counsel summarized the Plaintiff's history of employment with the Waterbury Police Department. He then outlined the Plaintiff's disabilities for the Board, including disability percentages assessed by other physicians who had treated and/or evaluated the Plaintiff (ROR, 3a). The Defendant Board unanimously voted to approve a disability pension in the amount of $38,989.60 for the Plaintiff (ROR, 3a, p. 6). This appeal ensued.
In support of his appeal, Plaintiff argues that the Board's decision concerning the amount of his pension was illegal, arbitrary and an abuse of discretion in one or more of the following ways: a) the decision was not supported by substantial evidence; b) the decision was not lawfully correct; c) the disability pension was limited to an amount equal to the Plaintiff's service pension; d) the Board failed to award an amount for Plaintiff's disability; e) the Board prejudged the matter outside the record; f) the Board unlawfully considered and decided the matter in a private, executive session outside the record; g) the Board failed to explain its method for determining the amount of the disability pension on the record; h) the Board's method for determining the amount to award for a disability pension is arbitrary and subject to abuse; i) the Board was unlawfully influenced by political and social pressures not appearing on the record; j) the Board breached its fiduciary duty to the Plaintiff as set forth in Title III of the Waterbury Code of Ordinances, as amended by the Board of Aldermen of the City of Waterbury in April of 2003; k) the Board's decision violated the Plaintiff's due process and equal protection rights; l) the Board unlawfully failed to follow its own policy, established over more than three decades, of awarding a pension in the amount of the retiree's take-home pay to police officers and in the case of fire fighters, in the amount of the retiree's take-home pay and later a 76% pension, to those police officers and fire fighters retiring as a result of disabilities to the heart, including to police officers who retired under the collective bargaining agreement governing Plaintiff's rights; m) the Board's decision was contrary to the intent of the parties to the Agreement; n) the Board's failure to follow its longstanding practice and policy of awarding such pensions was unreasonable and an abuse of discretion, in light of the expectations of the parties to the Agreement and union members, who reasonably relied on a maintenance of such practice and policy when entering into the Agreement; and o) the Board refused to allow the Plaintiff to testify at the June 10, 2004 meeting so that a record could be created.
Plaintiff filed his Second Amended Complaint on December 8, 2004.
In the Plaintiff's Brief, Plaintiff argued that 1) the Board was required to determine the Plaintiff's disability pension in accordance with Article XXIII, § 12 of the collective bargaining agreement; 2) the Board was required by precedent to award the Plaintiff an amount greater than what he was entitled to receive for a service pension; and 3) the Board was equitably estopped from awarding the Plaintiff a disability pension of less than 76%.
The Plaintiff argues that the Appellate Court's decision in Downey v. Retirement Board of Waterbury, 66 Conn.App. 105 (2001), is controlling in this case and requires either that this Court exercise its equitable powers and award the Plaintiff an additional amount of compensation consistent with the extent of his disabilities, or, in the alternative, that the decision be remanded to the Board with an order that it must determine how much additional compensation he will be awarded for his disabilities. Plaintiff argued that pensioners such as himself retiring based upon heart or hypertension were entitled to receive a pension equal to 76% of base pay. Plaintiff claimed that this conclusion was supported by a proper interpretation of the collective bargaining agreement, Conn. Gen. Stat. § 7-433(c), as well as past practices of the Board. See Plaintiff's Supplemental Brief, dated August 17, 2006.
The Plaintiff also argued in his brief that the Board's attempted modification of Article 23, section 12 of the Agreement by way of a town ordinance dated November 10, 2003 was invalid pursuant to the Municipal Employees Relations Act ("MERA"). During oral argument in the companion case of Cosgrove v. City of Waterbury, CV 04-4000064-S), counsel for the Board conceded that the November 2003 ordinance was passed after the effective date of the Agreement and therefore could not be controlling in this case regarding the award of the plaintiff's pension. Accordingly, the Court will not address this issue as it is deemed moot.
The Board argues that Article 23, § 12 of the Agreement authorized the Board to award the Plaintiff any amounts in its discretion, it deemed appropriate on account of his disability, provided said amount could not be less than 50% of the Plaintiff's annual rate of regular compensation. The Board further argues that the holding in Downey was not controlling in the present case as the facts and circumstances of this case are distinguishable from those in Downey. For the reasons stated below, the Court finds for the Defendant.
The issues presented are 1) whether the Plaintiff was entitled to receive a disability pension; 2) if so, whether the Plaintiff received an award in accordance with the terms of the Agreement; and 3) whether the Board abused its discretion in regards to its June 2004 award.
SCOPE OF REVIEW
The first issue to be addressed is whether the Plaintiff had standing to bring this appeal. "The test for determining [classical] aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; and second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision." In re Allison G., 276 Conn. 146, 156-57, 883 A.2d 1226 (2005). There is no claim in this case that aggrievement is lacking. Further, the Court finds adequate support in the record that the Plaintiff has demonstrated a specific personal and legal interest in the subject matter of the Defendant Board's decision regarding the amount of his disability award, and that his interests were specially and injuriously affected by the Board's decision. Thus, the Court finds that the Plaintiff was aggrieved by the Board's decision. The Court will now address the standard of review to be applied in this case.
In Duglenski v. Retirement Board, CV 04-0183615S (October 5, 2005), the Court (Brunetti, J.) articulated the appropriate standard of review in regards to appeals from decisions of administrative agencies. "The standard of review in appeals from the decisions of administrative agencies is well established. Judicial review of an agency decision is limited to determining whether, in view of all the evidence, "the agency acted unreasonably, arbitrarily or illegally or abused its discretion . . . [c]onclusions of law reached by an administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts and could reasonably and logically follow from such facts." Alexander v. Retirement Board, 57 Conn.App. 751 (2000), quoting O'Callaghan v. Commissioner of Social Services, 53 Conn.App. 191, 203 (1999). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The court's function is limited to the examination of the record to determine whether the ultimate decision was factually and legally supported to ensure the board did not act illegally, arbitrarily or in an abuse of its discretion. Ferrier v. Personnel and Pension Board, 8 Conn.App. 165, 167 (1986). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
"The substantial evidence rule governs judicial review of administrative fact-finding under [the Uniform Administrative Procedure Act] . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record." MacDermid, Inc. v. Department of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). "Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." O'Callaghan v. Commissioner of Social Services, 53 Conn.App. 191, 203, 729 A.2d 800 (1999), quoting Burinskas v. Dept. of Social Services, 240 Conn. 141, 146-47, 691 A.2d 586 (1997). "Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary." (Citations omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 581, 735 A.2d 231 (1999).
FINDINGS OF FACT CONCLUSIONS OF LAW I. Plaintiff Was Entitled To Receive a Disability Pension Pursuant to the Collective Bargaining Agreement and State StatuteIn the present action, the Board made a legal determination as to the extent of its obligation to pay a disability pension to the Plaintiff pursuant to the Agreement, and a factual determination as to what amount, if any, he should receive as an award based upon the extent of his disability. The Court will first address the Board's legal determination. There is no dispute that the July 2000 Agreement between the parties contained the terms and conditions governing retirement and pension benefits to which the Plaintiff was entitled.
Article 23, § 3 states: "Any police participant who has served as a member of the Police Department for at least fifteen (15) years, who has completed twenty (20) years of service, regardless of age, as a full-time employee of the City of Waterbury shall, at his option, be eligible for retirement, and upon his written request to the Retirement Board of the City of Waterbury shall be permanently retired." Section 4 of Article 23 states in pertinent part: "Any police participant who satisfies the eligibility requirements of Section 3 hereof . . . shall be entitled to an annual pension for life in an amount equal to one-half of the amount of compensation . . . received by him, at the permanent rank or grade held by him at the time of his retirement, payable monthly. In the case of any police participant, eligible for his retirement at his option, who shall continue in the service of the Police Department after the said date of eligibility for retirement, there shall be added to such pension, at the time of his permanent retirement, a sum equal to two and one-half (2.5%) percent of his said compensation, for each additional completed year he continues in said service until the date of his permanent retirement. The parties agree that the maximum amount of the service pension prescribed by this Section shall be 100% of base pay and that the maximum number of years of service, for retirement purposes, for the purpose of this section, shall be thirty (30) years of service with the City."
Section 12 of Article 23 addresses disability pensions. It states in pertinent part: "Any police participant totally and permanently disabled during the performance of essential duties pertaining to his employment by the City of Waterbury, irrespective of duration of his employment, shall upon application in a form prescribed by the Retirement Board, be retired for disability, provided proof of total disability is submitted to the Retirement Board substantiated by reports of examinations to be made by at least two (2) impartial competent medical examiners appointed by the Retirement Board . . . The City of Waterbury guarantees that effective upon the signing of this contract no pension payable to a police participant employed by the Police Department on account of total and permanent disability sustained during the performance of essential duties pertaining to employment by the City of Waterbury as provided herein, shall be less than one-half (1/2) the annual rate of regular compensation, plus longevity of the disabled employee at the time of retirement . . ." Article 23, § 14 states in pertinent part: "Policemen who become totally disabled due to heart disease or hypertension, if the Retirement Board determines that they are so disabled, shall receive a disability pension in accordance with Connecticut State Statutes and Retirement Board Regulations." There were no Retirement Board regulations in effect at the time of the Plaintiff's retirement. The parties agreed at oral argument that the ordinances promulgated in November of 2003 were not applicable to this case.
Thus, the Court must now address whether the pertinent Agreement provisions are clear or ambiguous. "In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning . . . [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." Charette v. Waterbury, 80 Conn.App. 232, 244-45 (2003), citing United Illuminating Co. v. Wisvert-Connecticut, LLC, 259 Conn. 665 (2002). The Plaintiff argued in his Amended Complaint that the Board's decision was contrary to the intent of the parties to the agreement.
The Court is not permitted to speculate as to the intent of the parties in the absence of proof of ambiguity. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract." Bentz v. Halsey, 54 Conn.App. 609, 616 (1999). After a careful review of Article 23 and all of its sections, the Court is of the opinion that the contract is clear on the issue of when an employee is eligible to retire, whether it be a service or disability retirement, and the minimum amount of pension award to which the employee is entitled.
An employee with 22 years of service who suffers from a permanent and total disability may, at their own option, apply for a service pension or a disability pension. In regards to the service pension, the employee is entitled to receive compensation equal to 1/2 of the employee's annual rate of regular compensation based upon completion of their twentieth year of service. In addition, that employee is entitled to receive an additional 2.5% of the annual rate of compensation at the time of retirement for each additional year they worked for the Police Department beyond their twentieth year of service. If, however, the employee chooses to file for a disability pension, as in the case of the Plaintiff, the employee is entitled, pursuant to Article 23, § 4 of the Agreement, to receive a minimum of 1/2 the employee's annual rate of regular compensation, plus longevity, at the time of retirement. In fact, § 14 of the contract states that a policeman who becomes totally disabled due to heart or hypertension shall receive a disability pension in accordance with state statute and Retirement Board regulations.
As was stated previously, there were no regulations in effect at the time the Plaintiff filed his application for a disability pension. Hence, only the statutory language of § 4-733c controls in this instance. Conn. Gen. Stat. § 4-733c states in pertinent part: ". . . [i]n the event a . . . regular member of a paid municipal police department who successfully passes a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his . . . permanent disability, . . . from the municipal retirement system under which he is covered, he . . . shall receive the same retirement . . . benefits which would be paid under said system if such . . . disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment . . . The benefits provided by this section shall be in lieu of any other benefits which such policeman . . . may be entitled to receive from his municipal employer under the provisions of . . . the municipal or state retirement system under which he is covered . . . as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his . . . permanent or total disability."
Section 7-433c states that the police officer retiring on the basis of a heart or hypertension disability is to be treated the same as if he had received an injury in the line of duty. The case law is very clear that the special nature of the heart and hypertension benefits under § 4-733c is not that the applicant is entitled to a special bonus or lump sum of compensation because of the heart/hypertension determination. The special nature or special circumstances arise from the fact that the applicant need not prove that his/her condition arises out of or is caused by their employment. In Revoir v. New Britain, 2 Conn.App. 255, 260 (1984), the Appellate Court held that "[S]ection 4-733c is bonus legislation because a claimant is not required to demonstrate a causal connection between a heart related injury and the claimant's employment in order to receive benefits . . ." It is still within the defendant Board's discretion to determine what amount of compensation, over and above the minimum amount expressed in Article 23, § 4, if any, will be awarded. Section 7-433c also states that the benefits provided by this section shall be in lieu of any other benefits which some policemen may be entitled to receive from his municipal employer under the provisions of the municipal or state retirement system. Thus, if, as in this case, the employee applied for a disability benefit based upon a heart condition, he is entitled only to a disability pension in lieu of any other benefits under either the collective bargaining agreement or § 7-433c. The only other benefits he would be entitled to would be a service pension, if he had opted to apply for such a pension. The agreement does not contain a provision which allows the retiring employee the right to obtain both a service pension and a disability pension at the same time.
Therefore, pursuant to the terms of the Agreement, which both parties conceded was in effect at the time of the Plaintiff's application for retirement, the Plaintiff was entitled to receive a minimum award of $33,904.00. (ROR, 1.c.) The Board, however, exercising its discretion as an administrative agency, chose to award the Plaintiff a higher amount, specifically $38,989.60 (ROR, 3 (Transcript of 6/10/04 meeting of Retirement Board, pp. 6-7).)
Having addressed the issue of whether the Plaintiff was entitled to receive a disability pension pursuant to the agreement, the Court will now address whether the defendant Board's calculation was appropriate.
II. The Board's Disability Pension Award Was Calculated In Accordance with the Terms of the Collective Bargaining Agreement
Plaintiff argues that the Board failed to "properly calculate" the disability pension award pursuant to Article 23, § 12. This argument is incorrect. Based upon the plain meaning of § 12, the Board was obligated to award the Plaintiff an amount not less that 1/2 of the Plaintiff's annual rate of regular compensation, plus longevity, at the time of retirement. The Plaintiff's annual rate of compensation at the time of retirement was $67,808.00. Half of this figure or $33,904.00 is the minimum amount to which the Plaintiff was entitled pursuant to the Agreement. The fact that the Board chose to award the Plaintiff a pension amount which exceeded this figure is not evidence that the pension amount was improperly calculated.
Plaintiff further argues that the Appellate Court's decision in Downey, supra, stands for the proposition that it is an abuse of discretion for a retirement board to award a disability pension in an amount that is equal to that of a service pension because such an award fails to compensate the employee for the extent of their disability. This Court finds that the facts in Downey are distinguishable from those of the present case and thus, the holding in Downey is not controlling in this case. Downey involved a Waterbury firefighter who filed for a disability pension pursuant to the collective bargaining agreement in place at the time of his retirement. The Board initially awarded the plaintiff a disability pension of 62% of his annual rate of regular compensation, but was later ordered to recalculate the rate at 72% to account for five years of service which were not previously appropriately credited. Downey v. Retirement Board, 66 Conn.App. at 107-12. Pursuant to Article 23, § 9 of the agreement in effect in Downey, supra, the plaintiff was entitled to receive a service pension of 2% of the annual rate of regular compensation for each year of service. Downey, supra, at 109.
In addition, Article 23, § 11 of the agreement stated "[T]he parties hereto agree that, effective as of July 1, 1977, any provision of the Charter to the contrary notwithstanding, an employee who applies for, and receives, a disability pension . . . shall be entitled to, and shall receive, a maximum disability pension of seventy-six percent (76%) of annual pay . . ." See Downey, supra at 117, footnote 10. The defendant in Downey argued that a disability award can include an amount for the disability and still properly be an amount that is less than what the employee would have received for a service pension.
Downey is distinguishable from the case at bar and thus is not controlling for several reasons. First, the Board in the present case is not arguing that the Plaintiff should receive an amount of disability pension that is less than an amount he would receive for a service pension. The Defendant awarded the Plaintiff an amount that exceeds what he is entitled to pursuant to the Agreement. Second, the Appellate Court in Downey found that the defendant failed to take into consideration the extent of the plaintiff's disabilities when it awarded the plaintiff his pension, which was equal to his length of service. The Court arrived at this conclusion based on the fact that the record reflected that the Board only discussed the plaintiff's years of service and never commented upon the extent of the plaintiff's disabilities. In the present case, the Board was presented with the medical evaluations of the Plaintiff by Drs. Dyer, Loyer, Dobkin and Flint. These records were reviewed and considered by the Board prior to their vote. In addition, the Board also engaged in a discussion concerning their discretion to award any amount they deemed appropriate in regards to a disability pension, provided they gave due consideration to the disability. The Plaintiff alleged in his amended Complaint that the Board prejudged the matter outside the record, and that the Board unlawfully considered and decided the matter in a private, executive session outside the record. Neither of these arguments was briefed by the Plaintiff, nor were they raised at oral argument by the Plaintiff. As such, they are considered abandoned by the Plaintiff and will not be further considered. See Collins v. Goldberg, 28 Conn.App. 733, 738 (1992).
Upon making a motion, board member Patrick Jones stated: "After a review of the independent medical examinations, after review of your relevant police contract, I make a motion to approve a disability pension in the amount of $38,989.60 . . ." The Board then voted unanimously to approve this motion (ROR, 3a, pp. 6-7).
The June 4, 2004 hearing addressed two disability applications, one for the plaintiff and another for Mr. John Cosgrove. One of the members of the Board, J. Paul Vance, Jr. stated "I think that the substance of that decision (referring to Downey) says that there needs to be addressed if you grant a disability pension. It could be anywhere from 0 to 100% based on the contract but there need be some discussion as to the difference between the service pension and the disability pension and if, in fact, this board chooses in their discretion to add an additional percentage . . ."
The Court also finds the following arguments, asserted as claims in his Third Amended Complaint, but neither briefed nor raised at oral argument, abandoned by the Plaintiff pursuant to Collins v. Goldberg, supra: first, that the Board was unlawfully influenced by political and social pressures not appearing on the record; second, the Board's breach of its fiduciary duty to the Plaintiff; and third, the Board's decision violated the Plaintiff's equal protection and due process rights.
The present case and the facts of Downey are also distinguishable in regards to the disability provisions in the contracts. In the present case, the parties agreed that there would be a minimum amount to which the employee would be entitled, namely 50% of annual base pay plus longevity. In Downey, there was no articulated minimum amount, but only a maximum disability award of 76% of annual pay. By its very language, the parties intended to establish no guidelines in the Agreement in the present case, providing the Board with broad discretion to award the applicant any amount over the 50% of annual pay plus longevity. In the case at bar, the Board chose to award an amount which exceeded the minimum authorized by the agreement. The Board in Downey awarded the plaintiff a 72% award, yet there was no evidence that the Board ever considered the medical evidence of the plaintiff's disability, nor was there any evidence as to whether Mr. Downey was capable of performing other work.
In Downey, the Appellate Court was troubled because it concluded that the defendant had ignored the plaintiff's medical reports, physical condition and disability when it determined the plaintiff's pension award. Downey, supra, at 114. The issue that must be addressed, therefore, is whether the Board in the present action in fact considered the Plaintiff's medical condition when it made its determination. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Christopher R. v. Commissioner of Mental Retardation, supra, 277 Conn. 611-12. "The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration." (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 89, 868 A.2d 749 (2005).
The Supreme Court has stated with regard to zoning commissions: "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). In Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 51 n. 8, 808 A.2d 1107 (2002), the Supreme Court further stated with regarding to zoning agencies: "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Intemal quotation marks omitted.) In addition, the Supreme Court stated with regard to zoning commissions: "If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Emphasis added; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
The Appellate Court, however, held with regard to a planning and zoning commission that "if the commission has not articulated its reasons [in support of its decision on the record], the court must search the entire record to find a basis for the [commission's] decision." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 177-78, 851 A.2d 1175 (2004). "The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
Applying the principles as articulated above to the facts of this case, the Court finds that the defendant Board did not articulate its reasons for the specific award granted to the Plaintiff. However, the Court is able to search the record to find a basis for the Board's decision. First, as was stated above, § 12 of Article 23 of the Agreement states that the only qualification regarding the award of a disability pension is that it shall not be less than 1/2 of the employee's annual rate of regular compensation. There was nothing prohibiting the Board from providing the Plaintiff with a higher amount, as it did in this case. Further, there was nothing in the Agreement which required the Board to pay the Plaintiff any specific amount, over and above 50% of the annual rate of regular compensation. Contrary to the Plaintiff's assertions, the Downey decision does not stand for the proposition that the Board was required to award the Plaintiff any additional amount of compensation on account of his disability. Rather, the Appellate Court stated that the Board was not allowed to completely disregard the medical evidence and opinions admitted into the record concerning the nature and extent of the Plaintiff's disability.
In Downey, the Appellate Court found that the opinions of the medical experts were either disregarded or disbelieved. Citing Tanner v. Conservation Commission, 15 Conn.App. 336, 341 (1988), the Appellate Court stated that "[W]hile we recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge . . ." The Plaintiff argues that the Board must have disregarded the medical evidence in this case because the Board did not award anything over and above the amount of a service pension. This argument fails for two reasons. First, as was stated previously, the Board did award an amount beyond what was required in the Agreement. Second, in Battaglia v. Retirement Board, CV 123090 (June 5, 1995) (Pellegrino, J.), the Court held that the fact that the defendant Retirement Board awarded only 2% more under a disability retirement than the plaintiff would have received under normal retirement did not persuade the Court that the defendant Board's assessment was arbitrary, clearly erroneous, or an abuse of discretion. The Court held "[A]s with most situations that require assessing monetary losses or disabilities, there is no grid that can be formulated to arrive at a fair numerical amount in every case since every case is unique. In most instances, we must rely on the judgment of the factfinder who will weigh various components and arrive at a decision it feels is fair and equitable . . ." In addition, Plaintiff's argument regarding the Board's lack of a specific methodology for determining the amount of a disability pension award is also unavailing. In Finno v. Retirement Board, City of Waterbury, CV 113949 (September 9, 1994) (Kulawiz, J.), the Court held that "[i]t would be extremely burdensome to the Board to enact standards beyond those set forth in the Police Union Contract . . . The court declines to remand this case to the Retirement Board for their setting of standards or policies as the court believes that the arena of collective bargaining between the City and the Police Union is the proper forum for any change in disability retirement formula involving those parties." (Emphasis added.)
Further, in Stratford v. Local 134 IFPTE, 201 Conn. 577 (1986), quoting Grover v. Manchester, 168 Conn. 84, appeal dismissed, 423 U.S. 805 (1975), the Connecticut Supreme Court stated: "[w]e termed the benefits conferred by 7-433c "special compensation." As such, they are indubitably an appropriate subject of collective bargaining between a municipal employer and a designated employee Organization . . . [W]e conclude that the `special compensation' represented by the hypertension and heart disease benefits presently at issue is certainly within the realm of acceptable, if not mandatory, bargaining subjects. Furthermore, each bargaining unit has a right individually to dicker over contract terms through untrammeled bargaining . . ."
In this case, Waterbury Police Union Local 1237 negotiated the terms and conditions of the agreement which is the subject of this appeal. The Plaintiff as well as the Defendant is bound by the terms and conditions contained therein. The parties agreed, during labor negotiations, how Waterbury police officers would be compensated if they applied for a disability pension, regardless of the number of years of service. The contract does not contain any specific percentages of disability pensions that must be awarded, other than that the City shall not award less than 1/2 of the officer's annual rate of regular compensation. Very simply put, the parties could have agreed that all heart or hypertension disability applicants shall be entitled to receive a pension equal to but not less than 76% of the annual rate of regular compensation. The parties also could have agreed to include language to the effect that employees who qualify for both a disability and a service pension would be entitled to the minimum amount under the service pension, plus an unspecified "bonus" amount for the disability. The contract contains no such provision, nor does the Court find any obligation on behalf of the defendant to make such an award.
In addition, the fact that the Board may not have set forth their reasons for their decision with as much clarity as possible does not render it invalid: ". . . [o]ur Supreme Court has previously noted that the members of local administrative bodies `may well be laymen and cannot be expected to set forth the reasons for their action in language which would satisfy the meticulous criticism of a legal expert . . .' " DeMars v. Zoning Commission, 142 Conn. 580, 584 (1955). The Court finds that, upon searching the record, there was sufficient evidence to substantiate the Board's decision. Three of the four independent medical examiners concluded that the Plaintiff, though no longer able to perform police work, was able to perform other work. Thus, he was not found to be totally and completely disabled from obtaining some other type of gainful employment. In contrast, there was no finding in Downey that the Plaintiff was capable of working in some other capacity other than as a firefighter, nor can one search the record and make such a finding. In addition, unlike the defendant's position in Downey, the Board is not attempting to argue that the Plaintiff ought to be awarded a certain amount for his disability and still be paid less than the amount of his service pension. The Board has decided, after considering all the evidence, to exercise its discretion to pay the Plaintiff an amount which is higher than the minimum amount to which he is entitled under § 12 of Article 23 of the Agreement.
III. The Defendant Board is Not Estopped From Awarding the Plaintiff a Disability Pension Which is Less Than 76% of the Plaintiff's Annual Rate of Regular CompensationPlaintiff further argues that the defendant is estopped from awarding him a disability pension which is less than what has been recently awarded to other heart and hypertension retirees from his bargaining unit. Specifically, Plaintiff argues that the Defendant previously awarded disability pensions at a rate of 76% of pay to three police officers covered by the same collective bargaining agreement as the Plaintiff between the years 2000-2004 (Plaintiff's Brief, September 15, 2005, Exhibit A). Plaintiff alleges that these awards to other police officers created the impression among police officers that they would be "taken care of" by the City if they became disabled. Plaintiff also alleged that the Defendant induced reliance upon these awards providing in the agreement language stating "the provisions of this Agreement shall be applied equally to all employees of the bargaining unit." (Article I, § 3.) Plaintiff then further alleges in his Brief that, with the knowledge that police officers were generally well taken care of by the Defendant, he continued to work for the Defendant City of Waterbury for a total of 23 years, incurring painful physical injury, as well as including heart hypertension disease (Plaintiff's Brief, 9/15/05, p. 16).
Plaintiff claims that, had he known that he would not be receiving a 76% disability retirement pension, he would not have endured the substantial hardships he has faced and would not have continued to serve until the point of total disability. Plaintiff also states that proof of his reliance on the "implicit" promise of the Defendant is evidenced, not only through his continued service, but also through his contributions to the pension system. Plaintiff's final claim in regard to estoppel is that his loss is substantial. The Board's decision was to award the Plaintiff a disability pension at 57.5% of his annual rate of regular compensation, or $38,989.60. A pension award of 76% would have equaled $51,534.08, a yearly difference of $12,544.48 (Plaintiff's Brief, 9/15/05, p. 17).
The Connecticut Supreme Court articulated the well-established case law in the area of governmental estoppel in Kimberly-Clark Corp. v. Dubno, Commissioner of Revenue Services, 204 Conn. 137, 527 A.2d 679 (1987). The Court held that ". . . [a]ny claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief, and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, 170 Conn. 344, 365 A.2d 1093 (1976); Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962) . . . In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency . . . [t]his exception applies where the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents. `[I]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.' " Kimberly-Clark Corp., supra, at 148-49, quoting Pet Car Products, Inc. v. Barnett, supra.
In support of his estoppel argument, Plaintiff states as follows. First, Plaintiff argues that the Defendant Retirement Board has consistently awarded Waterbury Firemen and Policemen, who retired on a heart or hypertension disability, a 76% pension or the equivalent of their take-home pay (Plaintiff's Brief, 9/15/06, p. 15). Exhibit A attached to Plaintiff's Brief, labeled "Retirement Board HHD Decisions 2000-2004," lists 15 city employees (including the Plaintiff), eleven of whom are firefighters, not police officers. The collective bargaining agreement at issue pertains to police officers. Any agreement between the defendant City of Waterbury and the firefighters union is not before this court and is therefore not relevant to this proceeding. First, it must be determined whether the defendant City of Waterbury or the Retirement Board did or said anything which was calculated or intended to induce the Plaintiff to continue to work until he was totally disabled, with the knowledge that he would be receiving a 76% disability pension. The Defendant Retirement Board does not dispute that it awarded disability pensions of 76% to these three police officers in 2003. However, there is no evidence before the Court which demonstrates that, by rendering these three awards, the Retirement Board either calculated or was intending to induce the Plaintiff or other police officers to continue their employment even though they knew they had a heart or hypertension condition, with the understanding that they would be receiving a 76% disability pension. Furthermore, there is no evidence on the record that the Plaintiff changed his position (i.e., decided not to retire on a heart or hypertension disability) on the basis of these Retirement Board decisions. Given the fact that these retirements all occurred between March 2003-November 2003, just one year before the Plaintiff filed for a disability retirement, Plaintiff's argument that he was induced by these three retirements to continue to work until he reached the point of total disability is not persuasive. In fact, Plaintiff noted that as early as May of 1997, he was noted to have hypertension (Plaintiff's Brief, 9/15/06, p. 2). However, he continued to work for the defendant City of Waterbury until February 2004, even though there were no police heart/hypertension retirees who were awarded a 76% disability pension until March of 2003.
The Court is compelled to rule that the Plaintiff did not exercise due diligence to determine whether there was any language in the collective bargaining agreement for police officers mandating a 76% disability pension, or whether the setting of said pension amount was solely within the discretion of the Retirement Board. There has been no evidence offered by the Plaintiff that he lacked convenient means necessary to ascertain the full scope of his rights under the agreement. The Plaintiff was a police officer with over 23 years of experience. The Court finds that the Plaintiff had the ability to determine whether the 76% disability pension was guaranteed or discretionary. He failed to exercise due diligence in making this determination. Thus, any injury (financial or otherwise) he suffered as a result of his decision to continue his employment as a police officer cannot be attributed to any statements or actions of the Defendant Retirement Board. As the Court finds that the Plaintiff's continued employment was not caused by any statement or action of the Defendant Retirement Board, the Court finds the Plaintiff's argument regarding payments into the pension system to be equally unpersuasive. Accordingly, the Court finds the Plaintiff's estoppel argument to be unsupported by substantial evidence. The Plaintiff stated during oral argument that the Defendant Retirement Board was prohibited from discriminating against the Plaintiff, pursuant to Article I, § 3 of the union contract. Section 3 states as follows: "The provisions of this Agreement shall be applied equally to all employees in the bargaining unit without discrimination because of age, sex, marital status, race, color, creed, national origin, ethnicity, political affiliation or union membership." Upon further inquiry by the Court, counsel for the Plaintiff was unable to articulate the basis for this discrimination claim. Accordingly, the Court will treat this claim as abandoned by the Plaintiff and will therefore not address it further.
IV. Plaintiff Was Not Denied the Opportunity to Be Heard at the June 10, 2004 Hearing
In his Amended Complaint, Plaintiff stated that the Board refused him the right to testify at the hearing so that a record could be made. At the hearing on June 10, 2004, the Board took up the Plaintiff's application. The hearing began with a thorough and detailed presentation from counsel for the Plaintiff, followed by some discussion between counsel for the Plaintiff and individual board members, as well as amongst the board members themselves (ROR, 3.a, pp. 1-4). At the conclusion of the presentation and questioning from the Board, Board member J. Paul Vance, Jr. stated: "[A]ny further questions for Attorney Grady or Lieutenant O'Connor? Lieutenant O'Connor, you can feel free to make a statement at this time if you'd like. If you choose not to, that's fine as well." The Plaintiff responded "I'm fine." (ROR, 3a., p. 4.)
It was at this point that Attorney Grady requested that he be allowed to ask the Plaintiff a couple of questions for the record. Mr. Vance indicated that the Board would not permit him to query the Plaintiff as this was not on their agenda, but that the Plaintiff was allowed to speak on his own behalf, and counsel was certainly free to continue to make a presentation on the Plaintiff's behalf. Attorney Grady stated for the record that he was being denied the right to ask questions of the Plaintiff.
The Court finds that the Plaintiff was not denied an opportunity to be heard at the hearing. The proceedings of the defendant Board are not governed by the Uniform Administrative Procedures Act ("UAPA"). As such, its procedures and the case law interpreting its application are not binding on this Court. However, the Court finds that the Plaintiff was entitled to some basic procedural due process protections in regards to the review of his application for a disability pension. In Goldberg v. Kelley, 397 U.S. 254, 268-69 (1970), the U.S. Supreme Court held that procedural due process is a flexible concept. Therefore the type of due process procedure that is required depends upon the circumstances of the parties, the nature of the dispute and the time available. Nevertheless, the fundamental requirement of any such process is the opportunity to be heard at a meaningful time and in a meaningful manner. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
The Court finds that the Plaintiff was provided an opportunity to be heard, at a meaningful time and in a meaningful manner, regarding his pension application. Attorney Grady was given ample opportunity to put on evidence in regards to the application, and the record reflects that he took advantage of that opportunity. The Plaintiff himself was twice given an opportunity to speak on his own behalf, but choose not to. The fact that the Board denied the request from Plaintiff's counsel to allow him to examine his own client in front of the Board does not equate to a denial of an opportunity to be heard in a meaningful manner. The Plaintiff and his counsel were provided with sufficient opportunity to be heard on this matter. If counsel wished to have the Plaintiff put specific statements on the record, he could have requested a continuance to prepare these comments for the Plaintiff to address the Board at a later date. There is no evidence to suggest that this questioning of the Plaintiff would have led the defendant Board to a different result. Accordingly, the Court finds no error.
Finally, Plaintiff's claim that he is entitled to retroactive payment of his pension back to the date of award, June 10, 2004 is supported by Article 23, § 12 of the agreement. Accordingly, the award of a 57.5% disability pension, retroactive to June 10, 2004, is affirmed.
CONCLUSION
Based upon all the evidence, the Court finds that the Defendant's decision was not arbitrary, clearly erroneous or an abuse of discretion. The decision was consistent with the applicable collective bargaining agreement in effect at the time of the Plaintiff's disability retirement application, as well as with applicable statutory and case law authority. Accordingly, the appeal is dismissed.