Opinion
No. X01 UWY CV 08 4015095S
January 29, 2009
BACKSTORY
LEGISLATIVE HISTORY
The Connecticut General Assembly (General Assembly) passed 24 Spec. Acts 781, No. 404, § 1 et seq. (1945) in 1945, which concerned pension and retirement benefits for the city of Waterbury (Waterbury). 24 Spec. Acts 781, No. 404, § 1 et seq. (1945) approved a retirement system for Waterbury employees and established a retirement board with the authority to manage Waterbury's pension and retirement system. The assets of the firefighters' pension fund and the police officers' pension fund were then transferred into the retirement fund.
24 Spec. Acts 781, No. 404, § 15 (1945) provides in relevant part: "No payments of retirement, disability or death benefits shall be allowed or paid under the provisions of this act so long or for such period as payments are being made by the city of Waterbury under the provisions of the general statutes relating to workmen's compensation, except when such payments would exceed the payments made under the provisions of the workmen's compensation act."
In 1951, the General Assembly enacted 26 Spec. Acts 297, No. 460, § 1 et seq. (1951), revising Waterbury's pension plan and retirement system. 26 Spec. Acts 297, No. 460, § 27 (1951) contained the same language as 24 Spec. Acts 781, No. 404, § 15 (1945).
The Workers' Compensation Act, General Statutes § 31-275 et seq., is codified in chapter 568 of title 31 of the General Statutes, and General Statutes § 7-433c is commonly known as the Heart and Hypertension Act. Bergeson v. New London, 269 Conn. 763, 768, 850 A.2d 184 (2004). "The Workers' Compensation Act was enacted to provide compensation for any injury arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer . . . Heart disease and hypertension are just some of the many ailments compensable under the act . . . In order to recover under chapter 568, however, [t]he employee has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment . . . Section 7-433c, on the other hand, was enacted to provide special compensation to qualifying [police officers] and fire[fighters] who die or become disabled as a result of hypertension or heart disease . . . It requires the employer to pay compensation to those officers who have successfully passed a physical examination which failed to reveal any evidence of hypertension or heart disease and who subsequently die or are disabled as a result of such conditions whether or not the disease resulted from the employee's occupation or . . . occurred in the line and scope of his employment . . ." (Emphasis in original; internal quotation marks omitted.) Bergeson v. New London, supra, 768-69.
Connecticut statutes concerning compensation for policemen and firemen who die or are disabled as a result of hypertension or heart disease have had a rather tumultuous history. In 1951, the General Assembly enacted a statute providing that any impairment of health caused by hypertension or heart disease resulting in the total or partial disability of a uniformed member of a paid municipal fire department who successfully passed a physical examination on entry into such service shall be presumed to have been suffered in the line of duty. [General Statutes (Sup. 1951)] § 175b. The rebuttable presumption afforded to firemen was, in 1953, made applicable to regular members of paid, municipal police departments; [General Statutes (Sup. 1953)] § 308c; and, in 1955, was applied to situations where death, as well as disability, results. [General Statutes (Sup. 1955) § 407d.
This provision, which was repealed and reenacted in 1961 as General Statutes § 7-433a; Public Acts 1961, No. 330, §§ 1, 2; was amended by the legislature in 1967 making it explicit that the statute applies whether the condition occurs while the policeman or fireman is on duty or off duty at the time. Public Acts 1967, No. 770, § 1. Apparently still dissatisfied with the restrictive implementation of those provisions, the General Assembly, in 1969, again amended the statute by making the state retirement system applicable to this section and by substituting a conclusive presumption that the hypertension or heart disease arose out of and in the course of the employee's employment in lieu of the simple presumption. Public Acts 1969, No. 380, § 1.
"In Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 [1971], however, [the Connecticut Supreme Court] held . . . that the conclusive presumption prescribed . . . in the adjudication of work[ers'] compensation cases was in contravention of the due process clauses of both the state and federal constitutions since it operated to completely bar an employer from attempting to prove the negative fact that in a contested case a heart ailment was not causally connected with the employment. [ Id., 143]. In obvious response to the suggestion in Ducharme that the objective of this legislation might be constitutionally attained by legislation requiring municipalities to provide special compensation or a bonus for policeman and firemen or supplemental or special risk insurance in the case of such occupations; id., 144; the General Assembly thereafter enacted § 7-433c . . . Upon a subsequent constitutional challenge, the validity of § 7-433c was sustained in 1975 in Grover v. Manchester, 168 Conn. 84, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S.Ct. 14, 46 L.Ed.2d 26 [1975]. In Grover, [the Connecticut Supreme Court] concluded that this statute, which simply [provides] special compensation, or even an outright bonus, to qualifying policemen and fireman, serves a proper public purpose and does not create a class preference which contravenes § 1 of article first of the Connecticut constitution. Id., 88-89 . . .
(Internal quotation marks omitted.) Bergeson v. New London, supra, 269 Conn. 777 n. 10.
In 1977, P.A. No. 77-520 added General Statutes § 7-433b(b) which provides: "Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation."
Currently, General Statutes § 7-433c provides in relevant part: "(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed 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 death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or 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, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or 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. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term `municipal employer' shall have the same meaning and shall be defined as said term is defined in section 7-467.
"(b) Notwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section."
"Although an award of benefits under § 7-433c is not a workers' compensation award, the Workers' Compensation Act is used as a `procedural avenue' for the administration of benefits under § 7-433c." Genesky v. East Lyme, 275 Conn. 246, 252 n. 9, 881 A.2d 114 (2005).
In 1967, Waterbury adopted a charter. Chapter 27, article 11, § 2761 of the 1967 Waterbury charter repeated the language found in 24 Spec. Acts 781, No. 404, § 15 (1945) and 26 Spec. Acts 297, No. 460, § 27 (1951). Chapter 27, article 11, § 2761 of the 1967 Waterbury charter provided that: "No payments of retirement, disability or death benefits shall be allowed or paid under the provisions of this act so long or for such period as payments are being made by the City of Waterbury under the provisions of the General Statutes relating to workers' compensation, except when such payments would exceed the payments made under the provisions of the Workers' Compensation Act. In such cases the pensioner shall receive, in addition to his payments under the Workers' Compensation Act the difference between that amount and the amount which he would receive under the provisions of this act."
In 2002, Waterbury adopted a new charter, which was approved by Waterbury voters by referendum. Chapter 27, article 11, § 2761 of the 1967 Waterbury charter was recodified as chapter 12, part c, division 7, § 12C-39 of the 2002 Waterbury charter. Chapter 13, § 13-3(f) of the 2002 Waterbury charter provides: "Until the effective date of an ordinance pertaining to pensions and retirement as required by § 6C-1 of this Charter, matters pertaining to pensions and retirement shall be subject to the provisions of Chapter 12 of this Charter pertinent thereto. Following the effective date of this Charter, the Mayor shall instruct the Corporation Counsel (in consultation with the Retirement Board) to prepare an ordinance to replace the current Charter provisions pertaining to pensions. The Corporation Counsel shall report said proposed ordinance to the Mayor and Board of Aldermen within six (6) months from the effective date of this Charter. The pertinent provisions of Chapter 12 shall remain in full force and effect until the effective date of the replacement ordinance. Upon the effective date of the ordinance the pertinent provisions of Chapter 12 shall be null and void, unless otherwise stated in the replacement ordinance."
The Waterbury board of aldermen adopted an ordinance governing the pension and retirement system in two phases in 2003; the first phase was passed on April 7, 2003, and the second phase was passed on November 10, 2003. The second phase of the pension ordinance, § 35.22 of the City Code of Waterbury provides: "To the extent that a Pensioner is entitled to any Pension benefits from the Retirement System, while such Pension benefits are payable to such Pensioner they shall be reduced by any amounts attributable to Workers' Compensation and/or Heart and Hypertension benefits paid under any relevant State of Connecticut or local statutes or ordinances."
In 2004, the charter was again amended. Chapter 12 of the preceding version of the Waterbury charter was repealed.
FACTUAL BACKSTORY AND JOURNEY OF THE PLEADINGS
Based on the record, the court finds the following facts. In August of 2006, Waterbury hired Frank May, an attorney with the law firm of Montstream and May, to review Waterbury's past practices, labor contracts and legal authority pertaining to the issue of offsetting pension payments by heart and hypertension benefits. On December 14, 2006, the Waterbury retirement board (retirement board) convened a retirement board meeting. At the December 14, 2006 meeting, May presented his research regarding offsets, stating that the retirement board, pursuant to the Waterbury Charter, Waterbury City Code of Ordinances, pertinent labor agreements, and Connecticut statutes and Connecticut case law, was obligated to impose pension offsets. Subsequent to May's presentation, at that same meeting, the retirement board adopted a resolution directing William Aneshensel, the then pension and benefits manager for Waterbury, his successor and the Waterbury pension office to take whatever actions were necessary to implement pension offsets.
On or about January 11, 2007, Aneshensel sent letters to the plaintiffs, Nicholas Russo, Cecile Lynch, Dolores Acas and Paul A. Salvatore advising them that the pension payments that they were receiving would be offset by the heart and hypertension benefits that they were receiving. On or about February 14, 2007, Aneshensel sent a letter to the plaintiff Eugene Coyle informing him that his pension would likewise be offset by heart and hypertension benefits.
In 2007, the above-mentioned plaintiffs as well as other Waterbury retirees and surviving spouses, filed various actions against the city of Waterbury, the retirement board, and/or Waterbury personnel. In 2008, the above-mentioned plaintiffs filed an exemplar action against the defendants, Waterbury and the retirement board, to which this memorandum of decision pertains.
Coyle is a retired police officer for Waterbury. Coyle was awarded a service pension by the retirement board, effective June 30, 2005. Coyle was awarded his service pension pursuant to the July 1, 2000 to June 30, 2005 collective bargaining agreement in place at the time of his retirement between Waterbury and the Waterbury Police Union, Local 1237 and Council 15, American Federation of State, County and Municipal Employees, AFL-CIO (police union). Pursuant to § 7-433c, Coyle was also awarded a weekly permanent partial heart and hypertension benefit (ppd) by the workers' compensation commission of $589 a week for 171.6 weeks. That ppd benefit commenced on June 30, 2003. In June 2005, Coyle began receiving heart and hypertension total temporary (tt) benefits of $678 instead of the ppd benefits. In July 2006, Coyle resumed receiving ppd benefits. In July 2007, Coyle was awarded an additional twenty-six weeks of ppd benefits. Coyle received the ppd benefits until April 14, 2008. Currently, Coyle receives no heart and hypertension ppd or tt benefits. (Defendants' appendix I — part 2 documents in support of defendants' motion for summary judgment and memorandum of law dated June 13, 2008, tab 31: Eugene Coyle's May 28, 2008 revised responses to defendants' discovery requests dated February 14, 2008). Coyle's service pension was offset for the period from February 2007 to about April 14, 2008.
Dolores Acas is the surviving spouse of the late Thomas Acas. Thomas Acas was a Waterbury police officer who had a heart attack on December 17, 1971, and retired on December 4, 1979. Thomas Acas was awarded a disability pension pursuant to the 1979 to 1982 collective bargaining agreement in place at the time of his retirement between Waterbury and the police union and was also awarded § 7-433c heart and hypertension benefits. Thomas Acas passed away on August 12, 1987. Dolores Acas was then awarded a widow's pension of $759.07 pursuant to the 1979 to 1982 collective bargaining agreement, and $1,993.17 in monthly heart and hypertension benefits as per § 7-433c. Dolores Acas' widow's pension began to be offset by her heart and hypertension benefits in January 2007. Because the amount of the heart and hypertension benefits was greater than the amount of the widow's pension, Dolores Acas has not received a pension payment since December 2006.
Cecile Lynch is the surviving spouse of the late Louis Lynch. Louis Lynch was a firefighter for Waterbury. Louis Lynch suffered a heart attack while on duty in 1980. Louis Lynch retired in June 1982, with a disability pension pursuant to the July 1, 1980-June 30, 1983 collective bargaining agreement in place at the time between Waterbury and the firefighters' union, Local 1339 International Association of Fire Fighters AFL-CIO (firefighters' union). Louis Lynch was also awarded heart and hypertension benefits pursuant to § 7-433c. Louis Lynch died on November 7, 1991. Following her husband's death, Cecile Lynch was awarded a widow's pension in the amount of $886.57 per month and heart and hypertension benefits in the amount of $3,432.54 per month. Because the amount of the heart and hypertension benefits was greater than the amount of the widow's pension, Cecile Lynch has not received a pension payment since December 2006.
Russo is a retired Waterbury firefighter. Russo retired on October 21, 1983, with a $1,908.61 per month disability pension pursuant to the July 1, 1983 to June 30, 1986 collective bargaining agreement between Waterbury and the firefighters' union. Russo was also awarded $2,409.14 per month in heart and hypertension benefits pursuant to § 7-433c. Because the amount of the heart and hypertension benefits was greater than the amount of the pension, Russo has not received a pension payment since December 2006.
Salvatore was a retired Waterbury police officer. Salvatore retired in September 1985 with a disability pension in the amount of $2,236.48 per month pursuant to the 1984-1986 collective bargaining agreement between Waterbury and the police union. Salvatore was also awarded heart and hypertension benefits in the amount of $452.71 per month. Beginning in January 2007, Salvatore's pension was offset by $452.71 per month. This offset continued until Salvatore's death in 2008.
The plaintiffs are alleging breach of contract, a violation of 42 U.S.C. § 1983, and equitable estoppel. Salvatore also claimed infliction of emotional distress. In their prayer for relief, the plaintiffs are seeking the court to enter an order invalidating the actions of the retirement board taken on December 14, 2006; prohibiting the defendants from continuing to offset the plaintiffs' pensions; requiring the defendants to reimburse the plaintiffs for amounts withheld as a result of the offset; requiring the defendants to pay interest pursuant to General Statutes § 37-3a on all amounts withheld from the date said amounts became due and payable; declaring the actions of the retirement board on December 14, 2006, and Waterbury thereafter in violation of the fifth and fourteenth amendments to the United States Constitution and 42 U.S.C. § 1983 and Article first, § 8, of the constitution of Connecticut; attorneys fees; and other legal and equitable relief as the court deems just and proper.
Salvatore did not specify whether he was alleging intentional or negligent infliction of emotional distress.
LEGAL DISCUSSION A. BREACH OF CONTRACT — POLICE CONTRACTS (Plaintiffs — Coyle, Acas and Salvatore)
The plaintiffs argue that Waterbury is precluded, by the terms of the applicable collective bargaining agreements, from offsetting their pensions. The plaintiffs state that "[i]t is important to note that although [ § ]7-433c . . . does not independently create an entitlement to pension benefits, it provides the Plaintiffs with the statutory right to the `causation bonus' that entitles them to whatever disability or surviving spouse pension benefits may be provided under their collective bargaining agreements." (Plaintiffs' Post-Trial Brief dated November 7, 2008, p. 1.)
The plaintiffs further assert that the clear and unambiguous contract language calls for payment of the pension without any offset. The plaintiffs cite to General Statutes § 7-474(f) in support of the proposition that when there is a conflict between a labor agreement and the charter, the labor agreement prevails. The plaintiff argue that the labor agreements conflict with the Waterbury charter because the collective bargaining agreements between the police union and Waterbury guarantee certain minimum pension benefits and therefore Chapter 27, article 11, § 2761 of the 1967 Waterbury charter cannot be applied to reduce the guaranteed minimum pension payment amounts.
General Statutes § 7-474(f) provides: "Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7-467 to 7-477, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any charter, special act, ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission, or any general statute directly regulating the hours of work of policemen or firemen, or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees' retirement system or under the Policemen and Firemen Survivors' Benefit Fund, the terms of such agreement shall prevail; provided, if participation of any employees in said system or said fund is effected by such agreement, the effective date of participation in said system or said fund, notwithstanding any contrary provision in such agreement, shall be the first day of the third month following the month in which a certified copy of such agreement is received by the Retirement Commission, or such later date as may be specified in the agreement."
The plaintiffs maintain that when it comes to contract interpretation, the question is not what the intent was in the contracting parties' minds, but the intention that the parties expressed in the contract language they utilized. The plaintiffs argue that: "The express intent of the parties as memorialized in the writing governs over any subjective, unexpressed intent." (Plaintiffs' Post-Trial Brief dated November 7, 2008, p. 2.)
The plaintiffs cite to O'Connor v. Waterbury, 286 Conn. 732, 945 A.2d 936 (2008) for the proposition that the labor contracts require a disability, spousal, or service pension of a specific amount or floor. The plaintiffs further argue that the language of the contract applicable to Salvatore is the same as the contract language in O'Connor v. Waterbury, supra, 286 Conn. 732. The plaintiffs state: "It would be quite a legal gyration that reconciles the Supreme Court's holding that clear language of the police contracts requires a fifty percent minimum with the non-specific language proffered by the City to permit payment well below fifty percent including zero, by way of offset. Similarly, the language of the pension provisions applicable to all Plaintiffs sets forth a minimum fixed benefit without limitation that the City is bound by contract to honor." (Plaintiffs' post-trial brief dated November 7, 2008, pp. 3-4.)
In O'Connor, the plaintiff, a retired Waterbury police officer, submitted a revised application for a disability pension in 2004 and was awarded a disability pension that amounted to 57.5 percent of his annual compensation at the time of his retirement by the retirement board. O'Connor v. Waterbury, supra, 286 Conn. 733, 734-37. The plaintiff retired under the July 1, 2000-June 30, 2005 police contract. O'Connor v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 04 4000065 (December 14, 2006, Brown, J.), aff'd, O'Connor v. Waterbury, supra, 286 Conn. 733. The plaintiff appealed the retirement board's decision to the trial court, and the trial court dismissed his appeal. O'Connor v. Waterbury, supra, 286 Conn. 733, 737-39. In affirming the trial court's judgment, the Supreme Court examined the collective bargaining agreement that applied to the O'Connor plaintiff and determined that the applicable collective bargaining agreement provided that the retirement board could not award a disability pension below 50 percent of the applicant's annual compensation. Id., 734, 744-46.
The plaintiffs make this argument for both the police collective bargaining agreement as it pertains to service, disability and spousal pensions and firefighter labor contracts as it pertains to spousal pensions.
The plaintiffs quote language from article XXIII, § 14, of the 1979-1982 police collective bargaining agreement, which provides in relevant part: "The City of Waterbury guarantees that 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, received by the disabled employee at the time of disability." (Emphasis added.) This language was carried forward in all police collective bargaining agreements through the 2000-2005 police collective bargaining agreement.
The plaintiffs also cite to article XXIII, § 12, of the 1979-1982 police collective bargaining agreement and maintain that that this section, which in all relevant parts, was carried forward in all police collective bargaining agreements through the 2000-2005 police collective bargaining agreement demonstrates that the contracting parties' express intent was that a surviving spouse should be entitled to the enumerated benefits set forth in that section without limitation, that is one-half of the amount that the retired pensioner was receiving at the time of their death. Article XXIII, § 12, of the 1979-1982 police collective bargaining agreement provides in relevant part: "A. Effective July 1, 1975, as to those employees who, or retirees who retire and subsequently die, on or subsequent to that date: the spouse of the said deceased employee shall be entitled to receive a Spouse Pension in an amount equal to one-half (1/2) of the annual pay which said deceased employee was entitled to receive at the time of his or her death; the spouse of a deceased retiree shall be entitled to receive a Spouse Pension in an amount equal to one-half (1/2) of the annual pay which such deceased retiree was entitled to receive as of the date of his or her application for a service or disability pension.
"As used in this Section 12, the term `annual pay' shall be defined to mean the employee's annual base salary as of the date of death (or as of date of application for a pension) as per the appropriate salary schedule of Article XXI plus the longevity payment for the year in which the employee dies (or applies per pension) as per Article V of this Agreement, which longevity payment shall be considered as earned as of January 1st of the year in which the employee dies (or applies for a pension)." (Emphasis in original.)
Article XXIII, §§ 3-7, of the 2000-2005 police collective bargaining agreement sets forth a specific formula to determine the amount of a service pension. Article XXIII, § 3, of the 2000-2005 police collective bargaining agreement provides: "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." Article XXIII, § 4, of the 2000-2005 police collective bargaining agreement provides in relevant part: "Any police participant who satisfies the eligibility requirement of Section 3 hereof (that is, who has served as a member of the Police Department for at least fifteen (15) years and who has completed twenty (20) years of service with the City, regardless of age,) shall be entitled to an annual pension for life in an amount equal to one-half of the amount of compensation (as heretofore defined in Section 2, sub-paragraph 6 hereof) 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 retirement at his option, who shall continue in the service of the Police Department after 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 purposes of this section, shall be thirty (30) years of service with the City . . ." Article XXIII, § 5, of the 2000-2005 police collective bargaining agreement provides: "Effective as of the date of the execution of this Agreement the maximum amount of a service pension shall be 100% of the employee's base pay, as the term `base pay' is set forth in Section 2 subparagraph 5 hereof." Article XXIII, § 6, of the 2000-2005 police collective bargaining agreement provides: "The parties hereto agree that, effective as of date of execution of this Agreement, an employee's pension, or pension Entitlement, in terms of the years of service computation shall be based upon two and one half (2.5%) percent for each year of service, subject to the overall limitation of a 100% maximum on the amount of the pension, as heretofore mentioned in Section 5 hereof. The amount of pensions, or pensions entitlement, in terms of the amount of pension dollars shall be the product of (A) (that is, the percentage factor) multiplied by (B) (that is, the, (`compensation factor'). In this formula, (A) equals percentage which is determined by multiplying the number of years of service by two and one-half (2.5) percent for each year of service and (B) is the `compensation . . .'"
The plaintiffs maintain that under § 7-474(f), article XXIII, §§ 3-7, 12 and 14, of the police collective bargaining agreements conflicts with chapter 27, article 11, § 2761 of the 1967 Waterbury charter. The plaintiffs argue that the application of § 2761 could and for the plaintiffs did, reduce the guaranteed minimum amounts set out in the contracts.
The defendants contend that pursuant to chapter 27, article 11, § 2761 of the 1967 Waterbury charter they are permitted to offset pension payments by heart and hypertension benefits. The defendants argue that the 1967 Waterbury charter requires that pension payments be offset by workers' compensation and/or heart and hypertension benefits, the plaintiffs have the burden of proving that the labor contracts were breached. According to the defendants, the record does not support the plaintiffs' position that that the 1967 Waterbury charter offset provisions cannot be applied to the plaintiffs' pension payments. The defendants contend that there is no conflict between the contracts at issue and the 1967 Waterbury charter and that the 1967 Waterbury charter has not been preempted. According to the defendants, pursuant to § 474(f), there needs to be a conflict between a charter and labor contracts in order for the contracts to prevail over the charter.
The defendants assert that they have the power to offset pension payments by workers' compensation payments and that heart and hypertension benefits are analogous to workers' compensation payments and should be treated the same way as workers' compensation benefits as it pertains to pension offsets. The defendants cite to Maciejewski v. West Hartford, 194 Conn. 139, 146, 480 A.2d 519 (1984) in support of the proposition that heart and hypertension benefits should be treated the same way that workers' compensation benefits are as it relates to offsetting pensions.
The court agrees with the plaintiffs.
"A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . ." (Internal quotation marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Partnership, 287 Conn. 307, 313, 948 A.2d 318 (2008).
Adhering to the aforementioned principles pertaining to contract interpretation, the court will now turn to the relevant police collective bargaining agreements. The court finds that Article XXIII, § 14, of the 1984-1986 police collective bargaining agreement applies to Salvatore's disability pension.
Article XXIII, § 14, of the 1984-1986 police collective bargaining agreement, under which Salvatore retired, provides in relevant part: "Any police participant totally and permanently disabled during the performance of essential duties pertaining to his or her employment by the City of Waterbury, irrespective of the duration of his or her 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 Retirement Board shall pay to each regular member employed in the Police Department who has been retired for disability according to the provisions of this Article or Section, a pension during the continuance of such disability . . . The City of Waterbury guarantees that no pension payable to a police participant employment 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, received by the disabled employee at the time of disability." (Emphasis added.)
The court finds that based on the contract language, the disability pension for Salvatore had a floor of 50 percent of his regular compensation plus longevity as determined in Article XXIII, § 1(5) and (6), of the 1984-1986 police collective bargaining agreement. Therefore, under the language of the 1984-1986 police collective bargaining agreement, Salvatore could not have his pension offset by heart and hypertension benefits below the 50 percent floor plus longevity. Although chapter 27, article 11, § 2761 of the 1967 Waterbury charter does provide for offsets that could reduce a pensioner's disability pension payments below the floor set forth in Article XXIII, § 14, of the 1984-1986 police collective bargaining agreement, pursuant to General Statutes § 7-474(e), the contract controls. Weidenbacher v. Duclos, 234 Conn. 51, 65, 661 A.2d 988 (1995). With respect to Salvatore, Article XXIII, § 14, of the 1984-1986 police collective bargaining agreement governed the minimum pension to which Salvatore was entitled. Therefore, Salvatore's pension could only be offset by heart and hypertension benefits to the extent that the offset did not decrease Salvatore's pension below the minimum disability pension of 50 percent plus longevity.
General Statutes § 7-474(e) provides: "No provision of any general statute, charter, special act or ordinance shall prevent negotiations between a municipal employer and an employee organization, which has been designated or recognized as the exclusive representative of employees in an appropriate unit, from continuing after the final date for making or setting the budget of such municipal employer. An agreement between a municipal employer and an employee organization shall be valid and in force under its terms when entered into in accordance with the provisions of sections 7-467 to 7-477, inclusive, and signed by the chief executive officer or administrator as a ministerial act. Such terms may make any such agreement effective on a date prior to the date on which such agreement is entered. No publication thereof shall be required to make it effective. The procedure for the making of an agreement between the municipal employer and an employee organization provided by said sections shall be the exclusive method for making a valid agreement for municipal employees represented by an employee organization, and any provisions in any general statute, charter or special act to the contrary shall not apply to such an agreement. (Emphasis added.)
As stated earlier in this memorandum of decision, Article XXIII, §§ 3-7, of the 2000-2005 police collective bargaining under which Coyle retired, sets out the formula to determine the amount of a retiree's service pension. The amount of the annual pension set out in Article XXIII, § 4, of the 2000-2005 police collective bargaining agreement shall be "equal to one-half of the amount of compensation (as heretofore defined in Section 2, sub-paragraph 6 hereof) received by him, at the permanent rank or grade held by him at the time of his retirement, payable monthly." This court finds that Article XXIII, §§ 3-7, of the 2000-2005 police collective bargaining agreement governs Coyle's retirement and pension. The court finds that based on the contract language, the service pension for Coyle had a floor of 50 percent of his compensation at the time of his retirement plus payments of 2.5 percent of such compensation per each year Coyle worked after he was already eligible for retirement under a service pension. Therefore, Coyle's pension can only have been offset by heart and hypertension payments to the extent that Coyle was still receiving his service pension of 50 percent plus the 2.5 percent compensation per each year Coyle worked after being eligible for a service pension.
As stated earlier in this memorandum of decision, Article XXIII, § 12, of the 1979-1982 police collective bargaining agreement, which governs Dolores Acas' spousal pension, provides for a pension floor of 50 percent of the annual pay that the deceased retiree was entitled to receive at the time he applied for either a service or disability pension. Therefore, pursuant to Article XXIII, § 12, of the 1979-1982 police collective bargaining agreement, Dolores Acas' pension can only be offset by heart and hypertension benefits to the extent that Acas was still receiving her minimum spousal pension of 50 percent of Thomas Acas' annual pay at the time he applied for a disability pension.
Pursuant to Article XXIII, § 12, of the 1979-1982 police collective bargaining agreement, annual pay included the annual base pay of the retired employee as of the date he applied for a pension and the longevity payment for the year in which he applied for a pension.
Therefore the court finds for the plaintiffs Salvatore, Acas and Coyle as to the breach of contract claims.
B. BREACH OF CONTRACT — FIREFIGHTERS CONTRACTS (Plaintiffs — Lynch and Russo)
The plaintiffs assert that Article XXXIII, § 6, of the 1980-1983 firefighters collective bargaining agreement, which in all relevant parts have been carried forward in firefighters collective bargaining agreements through 2004, "states that the spouse of a deceased employee shall receive one-half of the annual pay or pension to which the deceased employee was entitled." (Plaintiffs' post-trial brief dated November 7, 2008, p. 5.)
The plaintiffs concede that Article XXXIII, § 12, of the 1980-1983 firefighters collective bargaining agreement does contemplate an offset of disability pensions for employees who apply for and receive "a disability pension (including a disability pension based upon heart disease or hypertension as per the provisions of Section 7-433(a) and Section 7-433(c) of the General Statues) . . ."
The defendants argue that the 1980-1983 and 1983-1986 firefighters collective bargaining agreements do not conflict with chapter 27, article 11, § 2761 of the 1967 Waterbury charter. The defendants assert that the pension article of the firefighters contracts specifically recognize that Waterbury has a right to offset pensions by heart and hypertension benefits. According to the defendants, article XXXIII, § 12 of both the 1980-83 and the 1983-86 fire collective bargaining agreements acknowledge that the Waterbury charter authorizes offsetting. The defendants assert that article XXXIII, § 12 of the both the 1980-83 and the 1983-86 fire collective bargaining agreements only prohibits offsetting pensions by a workers' compensation awards or heart and hypertension awards when an individual receives "any specific injury award." The defendants' position is that by addressing the issue of offsets the firefighters' union expressly acknowledged that Waterbury had the right to offset pension benefits by workers' compensation and heart and hypertension benefits under any other circumstances. The defendants maintain that as Russo did not offer any evidence that he received a specific injury award, his pension can properly offset by his heart and hypertension benefits. The defendants further argue that there is no limitation, such as a specific injury award limitation, to the application of chapter 27, article 11, § 2761 of the 1967 Waterbury charter to any spousal pensions.
Any arguments of the defendants previously recited in the section devoted to the police collective bargaining agreements and applicable as well to the fire collective bargaining agreements will not be repeated here.
Article XXXIII, § 6, of the 1980-1983 fire collective bargaining agreement, which governs Cecile Lynch's spousal pension provides: "Anything in Section 2745 of the Charter of the City of Waterbury, to the contrary notwithstanding, a spouse of an employee shall receive the following `spouse pension' as of the following date: Effective July 1, 1975, as to those employees who, or retirees who retire and subsequently, die on or subsequent to that July 1, 1975 dates . . . the spouse of a deceased retiree shall be entitled to receive a spouse pension in an amount equal to one-half of the annual pay which such deceased retiree was entitled to receive as of the date of his application for a service or disability pension.
"As used in this Section the term `annual pay' shall be defined to mean the employee's annual base salary as of the date of death (or as of date of application for a pension) as per the appropriate salary schedule of Article XXVI plus the longevity payment for the year in which the employee dies (or applies for a pension) as per Article XXI of this Agreement, which longevity payment shall be considered as earned as of January 1st of the year in which the employee dies (or applies for a pension)." (Emphasis in original.)
Keeping in mind the principles of contract interpretation discussed within the section pertaining to the police collective bargaining agreements, this court finds that Article XXXIII, § 6, of the 1980-1983 fire contract, which governs Cecile Lynch's spousal pension, provides for a pension floor of 50 percent of the "annual pay" that Louis Lynch was earning at the time he applied for a pension. Therefore, Cecile Lynch's pension can only be offset by heart and hypertension benefits to the extent that she would still receive her minimum spousal pension of 50 percent of Louis Lynch's annual pay at the time he applied for a disability pension.
Article XXXIII, § 12, of the 1983-1986 fire contract, under which Russo retired, provides: "The 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 (including a disability pension based upon heart disease or hypertension as per the provisions of Section 7-433(a) and Section 7-433(c) of the General Statutes) shall be entitled to, and shall receive, a maximum disability pension of seventy-six per cent (76%) of `annual pay.' The term `annual pay' as used herein is defined as per the provisions of Section 9 hereof. In the computation of, and the payment of, the aforesaid maximum disability pension of seventy-six per cent (76%) of annual pay, the City may, if it so elects and it is necessary to do so because of the 76% maximum prescribed herein, utilize as an offsetting credit, the amount of the appropriate reduction in the dollars prescribed by Section 2746 of the Charter as against any dollars required to be paid per the provisions of Chapter 568 of the General Statutes or per the provisions of Section 7-433(a) or Section 7-433(c) of the General Statutes, (if the provisions of said Chapter or of said Title 7 sections are applicable to the disability pension applications in question; said Chapter and said Sections being applicable to `regular' Workers' Compensation pension disability applications and to heart-hypertension pension disability applications, respectively). The parties agree that the provisions of this Section shall not apply to, and shall not require a reduction of, any specific injury award, if applicable, (pursuant to the provisions of said Chapter 568, in general, and to the provisions of Section 31-308 of the General Statutes, and of Section 7-433(a) and Section 7-433(c), in particular)."
The Connecticut Supreme Court has stated: "[I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation militates against interpreting a contract in a way that renders a provision superfluous." (Internal quotation marks omitted.) O'Connor v. Waterbury, supra, 286 Conn. 743.
Therefore, consistent with O'Connor, this court finds that under the negotiated terms of the 1983-1986 fire collective bargaining agreement, disability pensions can be offset by heart and heart hypertension payments only to cap a pensioner's disability pension plus heart and heart hypertension payments at 76 percent of "annual pay." Said another way, the offset can be applied if the total of the pension payments plus the heart and heart hypertension benefits exceed 76 percent of "annual pay." If the parties to the 1983-1986 fire collective bargaining agreement intended to permit an offset of disability pensions by heart and heart hypertension payments regardless of the total amount of money that the pensioner was receiving from disability and heart and heart hypertension payments, then there would have been no logical purpose for Article XXXIII, § 12, of the 1983-1986 fire collective bargaining agreement. As the case law militates against contract interpretation that would render a section superfluous; O'Connor v. Waterbury, supra, 286 Conn. 743; this court finds that Russo's disability pension could only have been offset if his combined disability pension and heart and heart hypertension payments exceeded 76 percent of his "annual pay."
Article XXXIII, § 9, of the 1983-1986 fire collective bargaining agreement sets forth the definition of "annual pay" as it pertains to article XXXIII, § 12 of the 1983-1986 collective bargaining agreement.
Therefore the court finds for the plaintiffs Lynch and Russo as to the breach of contract claims.
C. INFLICTION OF EMOTIONAL DISTRESS — (Plaintiff — Salvatore)
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . .
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
"[I]n order to prevail on a claim of negligent inflectional of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410-11, 876 A.2d 522 (2005).
As stated previously Salvatore has not indicated whether he was alleging intentional or negligent infliction of emotional distress.
Here, the plaintiff, Salvatore, has presented no evidence with respect to this claim for emotional distress other than some general comments at trial related to the effect of the offset on his personal wellbeing. There was no medical evidence presented to the court to support this claim. As a matter of law, the defendants' conduct was not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . ." (Internal quotation marks omitted.) Larobina v. McDonald, supra, 274 Conn. 411.
Therefore, the court finds for the defendants with respect to the claim by the plaintiff, Salvatore, for emotional distress.
D. 42 U.S.C. § 1983
The plaintiffs argue that the defendants have violated the plaintiffs' right to procedural due process. The plaintiffs maintain that "[i]n order to state a claim for deprivation of procedural due process in violation of section 1983, a plaintiff must allege that the government deprived him of a legitimate property right without due process of law." (Plaintiffs' post-trial brief dated November 7, 2008, p. 13.) The plaintiffs assert that pursuant to the applicable collective bargaining agreements and § 7-433c, they "have a legitimate entitlement to their pension and compensation benefits . . ." (Plaintiffs' post-trial brief dated November 7, 2008, p. 13.) The plaintiffs contend that the procedure that the defendants employed to decide to offset the plaintiffs' pensions violated the plaintiffs' due process rights.
In addition, the plaintiffs argue that the remedies available under a breach of contract action are insufficient to make the plaintiffs whole as the plaintiffs were forced to hire attorneys. The plaintiffs assert that while a 42 U.S.C. § 1983 claim would allow the plaintiffs to recoup their attorneys fees, a breach of contract action would not.
The defendants argue that they have not violated the plaintiffs' due process rights as contract provisions do not create interests that are constitutionally protected. Alternatively, the defendants assert that even if the plaintiffs had an interest that was constitutionally protected, the plaintiffs were each provided with due process. According to the defendants, "[a]ccess to court is sufficient, if the procedural remedies available can address the alleged deprivation." (Defendants' post-trial memorandum dated November 7, 2008, p. 21.) The defendants further maintain that "[a] state court breach of contract action provides sufficient procedural due process to challenge a retirement benefit claim." (Defendants' post-trial memorandum dated November 7, 2008, p. 21.) The defendants cite to case law from the United States Supreme Court and the United States Court of Appeals for the Second Circuit in support of their position. The defendants contend that in the present case, the plaintiffs' breach of contract action allowed the plaintiffs to be heard "at a meaningful time, in a meaningful manner." (Defendants' post-trial memorandum dated November 7, 2008, p. 22.) The defendants further argue that if the plaintiffs prevail, the court can provide a remedy.
42 U.S.C. § 1983 provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . ."
The claims here are contract claims. Russell v. Dunston, 896 F.2d 664, 668-69 (2d Cir. 1990); Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979). Such disputes are not subject to constitutional protection. SD Maintenance Co. v. Goldin, 844 F.2d 962, 966-67 (2d Cir. 1988); CT Page 2528 Costello v. Fairfield, 811 F.2d 782, 784 (2d Cir. 1987). A dispute over payments under a contract does not rise to the level of a protected property interest. Costello v. Fairfield, supra, 844 F.2d 967.
In Costello, the plaintiffs-appellants alleged that the defendant-appellee town violated the due process rights of the plaintiffs-appellants by denying them pension increases under a labor contract. The United States Court of Appeals for the Second Circuit held that the claim was a contract action, not giving rise to a 42 U.S.C. § 1983 action. Following Costello, courts have recognized that disputes over employment benefits are not constitutional claims.
In fact, as part of a 42 U.S.C. § 1983 claim, the plaintiff must prove, as an element of that action, that state procedural remedies are inadequate. Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988). The plaintiffs in the present case have not proven that state court remedies are not adequate.
The issue is the amount of the benefit to which each plaintiff is entitled. The plaintiffs do not have a constitutionally protected property interest in receiving a specific pension amount free from offset.
Even if the plaintiffs had a constitutionally protected property interest, each was provided with due process. Access to court is sufficient, if the procedural remedies available can address the alleged deprivation. Parratt v. Taylor, 451 U.S. 527, 538-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
Henneberger v. County of Nassau, 465 F.Sup.2d 176 193 (E.D.N.Y. 2006) (public employees' right to increased compensation under a labor agreement is not a property right subject to due process protection); Lawrence v. Irondequoit, 246 F.Sup.2d 150, 156 (W.D.N.Y. 2002) (reduction in health care benefits to retirees does not violate a constitutionally-protected property interest); Danese v. Knox, 827 F.Sup 185, 192-93 (S.D.N.Y. 1993) (sick leave benefits created by a labor agreement are not "property" interests for due process purposes); Bell v. Westmoreland Central School District, No. 87-CV-1592, 1991 U.S. Dist. LEXIS 3063, at *10 (N.D.N.Y Mar. 5, 1991) (there's no constitutionally protected property interest in the continuation of post-retirement health insurance benefits).
A state court breach of contract action provides sufficient procedural due process to challenge a retirement benefit claim. In Campo v. New York City Employees' Retirement System, 843 F.2d 96, 98 (2d Cir. 1988), a widow requested a hearing to contest her late husband's alleged failure to select a survivor benefit option for his pension. When the New York City Employees' Retirement System denied her request, she sued claiming that the failure to provide a hearing deprived her of a property interest without due process of law. Id., 98-99. The United States Court of Appeals for the Second Circuit held that no pre-deprivation hearing was necessary as a state court proceeding was available. State court post-deprivation proceedings provide sufficient opportunity to be heard in a meaningful time and manner. Id., 100-03.
In the present case, the plaintiffs' contract claims allowed them to be heard at a meaningful time, in a meaningful manner. The court can provide a remedy. The plaintiffs have failed to prove that a lawsuit will not provide them with sufficient process. Therefore, the plaintiffs' rights to procedural due process were not violated.
Substantive due process protects rights that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental . . ." (Internal quotation marks omitted.) Local 342, Long Island Public Service Employees, UMD, ILA, AFL-CIO v. Town Board of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994), quoting Reno v. Flores, 507 U.S. 292, 303, 113 S.Ct. 149, 123 L.Ed.2d 1439 (1993). A mere contract dispute over the amount of pension benefits, however, does not rise to the level of importance necessary to invoke substantive due process. See Natale v. Ridgefield, 170 F.3d 258, 262-64 (2d Cir. 1999); see ATC Partnership v. Windham, 251 Conn. 597, 606-07, 741 A.2d 305 (1999).
As discussed above, the plaintiffs have not established that they have a constitutionally protected property right. In Christ Gatzonis Electrical Contractor, Inc. v. New York City School Construction Authority, No. 93-2418, 1993 U.S. Dist. LEXIS 9147, at *35 (E.D.N.Y. July 2, 1993), the court held that "[a]bsent some additional circumstance involving the misuse of a governmental power like the power of taxation or the police powers," a plaintiff does not have an actionable substantive due process claim against a government as a contracting party.
The United States Court of Appeals for the Second Circuit has determined that "simple, state-law contractual rights, without more, are [not] worthy of substantive due process protection." Local 342, Long Island Public Service Employees, UMD, ILA, AFL-CIO v. Town Board of Huntington, supra, 31 F.3d 1196. In Local 342, Long Island Public Service Employees, UMD, ILA, AFL-CIO, the union alleged that the unilateral termination of the health benefit trust without negotiations violated the union's right to substantive due process. The United States Court of Appeals for the Second Circuit rejected this claim, holding that because the union did not have a protectable interest in the insurance payments, the town's termination of these payments did not violate the union's substantive due process rights. Contractually-based interests do not rise to the level of protection afforded by the United States Constitution. In the present case, the plaintiffs' claims do not involve a fundamental right or an interest reserved for consideration under the standards of substantive due process. Thus, the defendants are entitled to judgment on this basis.
Even if there were a property interest implicated in the present case, to succeed on a substantive due process claim, a plaintiff must show that the governmental conduct "shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The action must be "so outrageously arbitrary as to constitute a gross abuse of governmental authority." Natale v. Ridgefield, supra, 170 F.3d 263. Substantive due process only protects against the most arbitrary and conscience shocking governmental actions. ATC Partnership v. Windham, supra, 251 Conn. 606. The egregious conduct must "fairly be viewed as so brutal and offensive to human dignity as to shock the conscience." (Internal quotation marks omitted.) Smith v. Half Hollow Hills Central School District, 298 F.3d 168, 173 (2d Cir. 2002), quoting Johnson v. Glick, 481 F.2d 1028, 1033 n. 6 (2d Cir. 1973). It must "transgress the outer limit of legitimate governmental action." (Internal quotation marks omitted.) Harlen Associates v. Inc. Village of Mineola, 273 F.3d 494, 505 (2d Cir. 2001). It does not protect against government action that is merely "incorrect or ill-advised." (Internal quotation marks omitted.) Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994). For the defendants' actions to violate substantive due process, they must have been "arbitrary," "outrageous," and/or "a gross abuse of governmental authority." Natale v. Ridgefield, supra, 262-63.
In the present case, the defendants' conduct does not "[shock] the conscience." There is no evidence that the action was "so outrageously arbitrary as to constitute a gross abuse of governmental authority." Corporation counsel for Waterbury was asked to render an opinion and rendered an opinion regarding the Waterbury charter and offsets. (Defendants' proposed finding of facts, ¶ 148.) The defendants then hired an outside expert to look into whether Waterbury could and should apply the Waterbury charter's offset provisions or whether Waterbury had bargained away the right to apply the offset requirement. (Defendants' proposed finding of facts, ¶¶ 153, 154.) Attorney Frank May researched and analyzed Waterbury's labor contracts, Waterbury's charters and ordinances, its pension and benefit files, and statutory and case law. (Defendants' proposed finding of facts, ¶¶ 153, 159.) May reported to Waterbury officials and the retirement board his analysis and conclusion that Waterbury was obligated to offset pension benefits by the amount retirees and/or surviving spouses were receiving under the Heart and Hypertension Act, except with respect to limitations in some of the fire collective bargaining agreements regarding "specific injury awards." (Defendant's Proposed Findings of Facts, ¶ 158.) He concluded that Waterbury had only bargained for a limitation on offsets with respect to the firefighter's disability retirements where there was a specific injury award; otherwise there was no limitation. (Defendants' proposed findings of facts, ¶ 158.)
Acting on legal advice is not arbitrary, outrageous or a gross abuse of authority. See Wolocko v. Ridgefield, No. 3:98CV1096, 2000 U.S.Dist. LEXIS 20459, at *14-15 (D.Conn. March 30, 2000), aff'd, Wolocko v. Ridgefield, 5 Fed.Appx. 78 (2d Cir. 2001); Clark v. City of Hermosa Beach, 56 Cal.Rptr.2d 223, 244 (Cal.Ct.App. 1996). In the present case, the defendants' actions did not violate the plaintiffs' rights to substantive due process.
Therefore the court finds for the defendants with respect to the claims under 42 U.S.C. § 1983.
E. ESTOPPEL
As the court has found that all the contracts at issue either provide minimum pension floors for the plaintiffs (Acas, Salvatore, Coyle and Lynch) or indicate that disability pensions cannot be offset unless the pension combined with the heart and heart hypertension payments would exceed seventy-six percent of the pensioner's "annual pay" (Russo), the court need not address the allegations of estoppel at this time.
CONCLUSION
1. With regard to the breach of contract claims, this court finds that to the extent that the plaintiffs had their pensions offset, causing them to receive less than what this court has found to be the pension payments that they are contractually entitled to, the court finds that the defendants must reimburse the plaintiffs for the amount of any offsets that caused the plaintiffs' pensions to go below the contractual minimum. The defendants are hereby enjoined from applying any offset to the plaintiffs' pensions that will cause them to receive less than the contractual minimum pensions.
2. With regard to Salvatore's cause of action alleging infliction of emotional distress, this court finds in favor of the defendants.
3. With respect to the 42 U.S.C. § 1983 claim, the court finds in favor of the defendants.
4. The court need not and is not addressing the estoppel claim.
5. No costs or attorneys fees are awarded to any party.
6. The plaintiffs have claimed statutory interest pursuant to General Statutes § 37-3a. This section authorizes the discretionary award of interest at 10 percent per annum on money wrongfully withheld from the owner. The court, in its discretion, awards no statutory interest to the plaintiffs.