Berchem, Moses & Devlin, P.C. v. Town of East Haven et al. (2011)

MEMORANDUM OF DECISION

This is a civil action wherein the plaintiff law firm, Berchem, Moses & Devlin, P.C. (plaintiff) has filed a claim for attorneys fees allegedly owed to the plaintiff by the defendants, the Town of East Haven (Town) and April Capone Almon, the Mayor of East Haven (Mayor).   The fees were incurred when the East Haven Board of Police Commissioners (Board) retained the plaintiff to represent it in a dispute arising out of the alleged hiring of Robert Nappe (Nappe) as an East Haven police officer.

This case was heard by this court in a bench trial on November 17, 2010.   Attorney Brian Smith from the plaintiff law firm, represented the plaintiff and Attorney Hugh Keefe represented the defendants Town and the Mayor.   Appropriate briefs have been filed by the respective parties.   The parties have agreed on an 81 paragraph stipulation of facts with attachments (exhibit 7).   A summary of the stipulation is included in this decision.

The plaintiff is a professional corporation engaged in the practice of law in the State of Connecticut.   The defendant Town is a municipality organized and existing pursuant to the laws of the State of Connecticut.   The defendant Mayor is the Mayor of East Haven, the chief executive officer of the Town, and the Chairperson of the Town Finance Committee.   The Board is a commission established pursuant to the Charter of the Town, and pursuant to Chapter VI, Section 7(A) is vested with the decision-making authority for all appointments to the East Haven police department, except for the Chief of Police.

In 2005, Nappe, a retired East Haven police officer, applied to be re-appointed as an East Haven police officer.   The Board refused to appoint Nappe, who then filed a civil action against the Board, entitled Robert Nappe v. East Haven Board of Police Commissioners, New Haven Superior Court Docket No. CV05-4008609-S (Nappe lawsuit), wherein Nappe sought an order of mandamus ordering the Board to reinstate him to the position of East Haven police officer.   The Board opposed the lawsuit.   Funds were approved by the Town for Town Attorney Lawrence C. Sgrignari to represent the Board in opposing the lawsuit.   On April 16, 2007 Judge Angela Robinson, a judge of the Superior Court, entered a judgment of mandamus in the Nappe lawsuit and ordered the Board to reinstate Nappe as an East Haven police officer.   The Board, represented by Attorney Sgrignari, appealed the judgment to the Connecticut Appellate Court on or about May 2, 2007.   The appeal operated as a stay of Judge Robinson's order.   Mr. Sgrignari, as Town Attorney, represented the Board and had agreed with the then Mayor Joseph Maturo, Jr. with respect to his fee for representing the Board in connection with the lawsuit.   Thereafter the Connecticut Supreme Court transferred the lawsuit to its own docket.   (S.C.17926).

The political situation in East Haven during the relevant times concerning this case had a bearing on the actions of the respective parties in this litigation.   Prior to the town election in November 2007 the Mayor of East Haven was a Republican, Joseph A. Maturo, Jr., and the Board was controlled by a 3 to 2 Republican majority.   In November 2007 the defendant Mayor, a Democrat, was elected.   However, the Board continued its 3 to 2 Republican majority.

The Mayor wished to have the appeal of the Nappe lawsuit, which had been filed by the Board through Attorney Sgrignari withdrawn, which would terminate the stay of Judge Robinson's order, and that Nappe could then be appointed as a police officer.   On or about March 20, 2008 the Mayor appointed Attorney James F. Cirillo, Jr. as Town Attorney for eight pending matters involving the Town of East Haven, one of which was the Nappe lawsuit then pending in the Supreme Court.   The reason for the appointment was that Attorney Patricia Cofrancesco, who previously had been appointed as Town Attorney by the new Mayor, had conflicts of interest on these eight listed matters, so that an additional town attorney had to be appointed to handle the eight files for the Town. On March 27, 2008 the Mayor notified Mr. Sgrignari that his services in the Nappe lawsuit pending in the Supreme Court were no longer required, and that Mr. Cirillo had filed an In Lieu of Appearance for Mr. Sgrignari in the action.   On that day Mr. Cirillo filed an appearance on behalf of the Town of East Haven in the Nappe lawsuit “in lieu of Lawrence C. Sgrignari ” and a purported withdrawal of the appeal from the Supreme Court.   Mr. Cirillo filed the pleadings in the Supreme Court as “assistant town counsel” on behalf of the Town of East Haven, which was no longer a party in the action.   On March 28, 2008 Mr. Sgrignari notified the Chief Clerk of the Supreme Court of the objection of the Board to the filings by Mr. Cirillo.

On March 28, 2008 the Board held an emergency public meeting at the East Haven police department to discuss the Nappe lawsuit pending in the Supreme Court.   Mr. Sgrignari recounted the efforts of the Mayor and Mr. Cirillo to withdraw the appeal.   After further discussion the Board adopted three resolutions, each by three to two votes, with the three Republican members in the majority.   The first resolution was that Mr. Sgrignari was to continue to represent the Board in the Nappe action in the Supreme Court and was to take all necessary action to prevent the appearance of other counsel, and to prevent the appeal from being withdrawn.   The second resolution was that Mr. Cirillo is not authorized to take any action in the Nappe action pending in the Supreme Court on behalf of the Board, and that any action taken by him thus far is null and void.   The final resolution stated that it was the opinion of the Board that the Town Attorney and Assistant Town Attorney appointed by the Mayor have impermissible conflicts of interest in advising the Board in the Nappe action pending in the Supreme Court, that the Board desired independent representation, and that the Board hereby retains, “subject to a proper retainer agreement and fundings, or other adequate financial allotments” the plaintiffs' firm in matters of conflict with the office of the Mayor.   Mr. Sgrignari then filed an objection to the in lieu of appearance of Mr. Cirillo in the pending action in the Supreme Court pursuant to the rules of appellate procedure section 62-9(a).

The defendants continued in their efforts to withdraw the action pending in the Supreme Court, through the filings by Town Attorney Cirillo, so as to terminate the stay of the Superior Court order that the Board should reinstate Nappe as an East Haven police officer.   Once the stay of the order of the Superior Court was lifted the defendants intended to appoint Nappe as an East Haven police officer despite their knowledge that the Board was opposed to a withdrawal of the appeal and was opposed to the appointment of Nappe as a police officer.

The Board was the entity that possessed jurisdiction over all appointments to the East Haven police department, except for the Chief of Police, and the actions of the defendants undermined and usurped the authority of the Board with respect to maintaining the appeal of the court's order in the lawsuit brought by Nappe, and with respect to the appointment of Nappe as an East Haven police officer.

The Mayor had terminated Mr. Sgrignari as an Assistant Town Attorney handling the Nappe case in the Supreme Court.   On March 31, 2008 the Board retained the plaintiff as counsel for the Board to take whatever legal action was necessary to maintain the integrity of the Board in view of the obvious conflict of interest between the position of the defendants and the Board with respect to the handling of the Nappe lawsuit, and the appointment of Mr. Nappe as an East Haven police officer.

On April 4, 2008 Attorney Mark J. Kovak of the plaintiff firm filed an action in this court entitled East Haven Board of Police Commissioners v. Town of East Haven and Mayor April Capone Almon, Docket No. CV08-4030652 (injunction action) seeking, inter alia, an ex parte temporary injunction and a permanent injunction.   On April 7, 2008 this court (Silbert, J.) entered an ex parte temporary injunction enjoining the defendants from taking any action to undermine or interfere with the Board's appeal to the Supreme Court, from taking any further action to undermine or usurp the Board's decision-making authority with regard to the appointment of Nappe as an East Haven police officer, and from taking any action to hire Nappe as an East Haven police officer without the advance consent and approval of the Board.

Thereafter the defendants in the injunction action filed a motion to dismiss the action, and in the alternative, to have the temporary injunction dissolved.   Judge Silbert heard argument on the defendants' motions and on May 9, 2008, denied the motion to dismiss, and reduced the scope of the injunction so as to provide that the defendants are enjoined “from taking any action to hire or reinstate Nappe as an East Haven police officer without the advance consent and approval of the plaintiff, pending the Supreme Court's rulings on the issues previously discussed.”

The Mayor, proceeding on the belief that the Nappe lawsuit had been withdrawn, on April 3, 2008 had directed Leonard Gallo, the Chief of Police, to reinstate Nappe as an East Haven police officer.   Chief Gallo followed the instructions of the Mayor and on April 7, 2008 Nappe was issued a gun and badge by Chief Gallo.   On April 9, 2008 the Town and the Mayor were served with the injunction issued by Judge Silbert and Nappe was ordered to return his gun and badge.

The Supreme Court sustained the Board's objection to Mr. Cirillo's in lieu of appearance, and the withdrawal of the Nappe appeal filed by Mr. Cirillo was not processed by the Supreme Court.

Within a week of the final ruling by Judge Silbert, a Republican member of the Board died, and the Mayor appointed a Democrat to replace the deceased member, resulting in a change in the political control of the Board.   The newly constituted Board then retained new counsel who withdrew the Nappe action, and the new Board appointed Nappe as an East Haven police officer by a three to two vote, with the three Democrats in the majority.

The plaintiff then submitted its bill for legal services rendered to the Town in the amount of $25,041.18 (exhibit 8).   The Mayor has refused to authorize payment of the bill and the bill is unpaid.   This action against the Mayor and the Town seeking payment, of the bill was then instituted.

The plaintiff cites the case of Gesmonde, Pietrosimone, Sgrignari, Pinkus & Sachs v. City of Waterbury, 231 Conn. 745 (1995), as authority in support of its claim for payment of the legal bill for services rendered to the Board.   In that case the civil service commission of the City of Waterbury retained the plaintiff law firm to represent the commission in a dispute with the Mayor and the Corporation Counsel over the promotion of five Waterbury police officers to the position of detective.   The commission believed that the appointments made by the Mayor and the Corporation Counsel were illegal, that there was an obvious conflict of interest between the commission and the Corporation Counsel, and that the commission needed independent counsel to represent its interests.   The plaintiff brought two actions to rescind the promotions, judgments were entered finding the promotions illegal, and the judgments were affirmed on appeal by the Supreme Court.   The plaintiff presented its bill for legal service to the city and the request for payment was denied.   The plaintiff then brought suit alleging a breach of contract, or, in the alternative, a quantum meruit count for the fair value of the legal services rendered.   The trial court found that the commission was authorized to retain the plaintiff, that a binding contract existed, and that the plaintiff was entitled to be paid for its legal services.   On appeal to the Supreme Court the city claimed that the commission lacked the authority to bind the city contractually to fund the plaintiff's legal services to the commission.   The Supreme Court found that the city was legally obligated to pay for the legal services.

The court in Gesmonde contains language that is also appropriate in the instant case.  “The city first argues that the commission lacked the authority to bind the city contractually to fund the plaintiff's legal services to the commission.   The city's argument raises an issue of first impression for this court ․

“Under the circumstances of this case, we conclude nonetheless that, because of the conflict of interest between the commission and the corporation counsel who ordinarily would have represented the commission, the commission had the inherent power to hire outside counsel for the purposes of representation of its interests.   As the record shows, the corporation counsel was faced with a direct conflict between the city's position and that of the commission regarding the promotion of the five police officers to detective.   The corporation counsel supported the mayor's position that the officers were properly promoted despite the fact that the civil service list was ignored ․ It is apparent that not only was the corporation counsel opposed to the commission's position, but was actively resisting it every step of the way.   Because of this obvious conflict of interest, the commission had the implied authority to hire independent counsel to represent its interests.

“The weight of authority supports our conclusion.  “As a general rule, when a municipal corporation has legal counsel charged with a duty of conducting the legal business of a governmental agency, contracts with other attorneys for additional or extra legal services are void.”  Coventry School Committee v. Richtarik, 122 R.I. 707, 715, 411 A.2d 912 (1980).   There is, however, a well recognized exception to the general rule.  “Notwithstanding lack of specific statutory authority, a municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting ․ This authority is necessarily implied in order to enable the board to effect the purposes of its creation and to allow it to properly function ․

“Under the circumstances, we conclude that a direct and obvious conflict of interest existed for the corporation counsel and that he would have been disqualified from representing the commission even if he had so desired.   Additionally, the very purpose of the civil service commission was being challenged by the blatant disregard of the certified civil service list by the appointing officials.   Therefore, in order for its unique interests to be represented in the underlying dispute the commission had the implied authority, under the facts of this case, to engage the plaintiff's legal services.   We conclude, therefore, that the city was legally obligated to provide the funds to pay for those services.”  Gesmonde, Pietrosimone, Sgrignari, Pinkus & Sachs v. City of Waterbury, 231 Conn. 745, 749-55 (1995).

The plaintiff has submitted a detailed bill reflecting its charges for legal services rendered to the Board in the injunction action brought by the Board against the Town and Mayor Almon.  (Exhibit 8.) The defendants' brief makes no reference to the bill or any objection to the amount of the charges.   The court finds that the services on the bill were necessary and the charges were appropriate.   The only objections raised by the defendants' brief relate to the “funding” requirement of the motion adopted by the Board.   The motion provided that the Board retained the plaintiff to represent the Board in matters of conflict with the office of the Mayor, “subject to a proper retainer agreement and funding or other adequate financial allotments ․” The brief also points out the various provisions in the Town Charter which provide for the Town Attorney or the Mayor to handle all litigation and the settlement or compromises of litigation.

The reference in the defendants' brief to the “funding” language in the motion authorizing the retention of the plaintiff to represent the Board in its dealings with the Mayor suggests that the defendants are claiming that the Board was authorizing the retention only if adequate funding was available to pay the legal fees.   There is no evidence that the Board considered the retention of the plaintiff as being so restricted.   The Board, its Chairman, and Attorney Novack were promptly advised by the Mayor that she would never approve any funds for the plaintiff's legal services.   There was no evidence that the Board or any member ever expressed any concern over the funding.   There was evidence that the Board was advised by Mr. Sgrignari about the decision in the Gesmonde case and that the Town would be required to pay for the legal services, which apparently satisfied the Board.

The Gesmonde decision points out that the general rule that when a town has counsel to conduct its legal affairs contracts for additional legal services are void.   However, when the municipal attorney is disqualified from acting, the Board can retain its own counsel to effect the purposes of its creation and to allow it to properly function.   That is the situation that the Board in this case was confronted with and the retention of the plaintiff as legal counsel was appropriate.

The last claim in the defendants' brief appears to claim that the plaintiff must have “success” in whatever legal efforts are undertaken in order to be paid.  Gesmonde includes no such requirement.   In addition, the plaintiff was seeking an injunction restraining the defendants from taking any action to hire Nappe as a police officer, and on May 9, 2008 the court ordered that the defendants be enjoined from taking such action without the approval and consent of the plaintiff.

In this case the court finds that the Board had the sole authority to make appointments, except for the Chief of Police, to the East Haven police department, that there was a clear conflict of interest between the Board and the town attorney with respect to preserving the appeal in the Nappe action, and in appointing Nappe as a police officer, that the actions of the town and the mayor challenged the right of the Board to perform its essential function pursuant to the town charter, that in order to defend and perform its responsibilities under the town charter the Board had the implied authority to retain counsel, that a binding contract to provide legal services to the Board existed, and that the plaintiff is entitled to be paid its reasonable charges of $25,041.18.

The defendants have filed eight special defenses.   None of these special defenses have been proven.

The plaintiff claims, and the court finds, that the failure of the defendants to pay a reasonable bill for attorneys fees incurred by the Board under the circumstances of this case constitutes an unlawful detention of money under Connecticut General Statutes Section 37-3a.   The court awards 5% interest on the plaintiff's bill from October 1, 2008 to the date of judgment, totaling $2,905.21.

A review of the court file discloses that the plaintiff filed an offer of compromise of $26,000.00 on March 29, 2010, and it has recovered $27,946.39 which is more than the offer of compromise.   The plaintiff is entitled to 8% offer of compromise annual interest on the amount recovered from the date the complaint was filed, August 3, 2009, to the date of judgment, totaling $3,310.92.

Accordingly, for the reasons above-stated a judgment may enter in favor of the plaintiff on the first count as against the defendants Town of East Haven and Mayor April Capone Almon in the sum of $31,257.31 plus taxable costs.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.