Greg DeMunnik et al. v. City of Danbury (2011)

MEMORANDUM OF DECISION

Facts

This action is brought by forty-eight (48) former officers of the Danbury Police Department against the City of Danbury (“City”).   All of the plaintiffs retired in good standing under provisions of the Danbury City Charter.   Compl., ¶ 1.   The City's Common Council had many years ago created a police benefit fund for eligible retirees by Ordinance found in Chapter 14, Art. III of the City's Code of Ordinances.   Three (3) separate police pension funds existed when this action was commenced-a pre-1967 Fund, a 1967 Fund, and a 1983 Fund. All plaintiffs are members of either the Pre-1967 or 1967 Pension Fund. Joint Stip. Of Facts (“JSF”) # 256.   All, at the time of their retirement, had obtained the highest grade level of their respective ranks and their pensions were calculated on that basis.   Most of them retired when there were only five (5) pay grades;  there are now two (2) additional pay grades (Steps 6 and 7).   Step 6 was established in 1985 and Step 7 in 2007.   The City has continued to pay the plaintiffs at the highest salary level for the rank at which they served just prior to retirement.   The retirees did, however, receive pension increases as such increases were given current officers of the same rank as the pensioners had held within the force.

The plaintiffs seek declaratory and injunctive relief.   They allege the City has circumvented the City Charter and Code of Ordinances which require pensions be increased “to correspond to any increase in salary received by members of the same grade and rank of such member while in the active service of the department” by adding the two (2) additional pay grades and not compensating them at what are now the highest pay grades.   Thus, they argue, their pension benefits have been diluted because, having been paid at the top salary step for their rank when they retired, they are no longer paid at that top step.

The defendant has denied the plaintiffs' pensions ought now-and in the future-be calculated at the top salary level then existing and has asserted five (5) special defenses:  1) The action is barred by the applicable statute of limitations;  2) Plaintiffs have waived their right to pursue their claims because they knew or should have known additional steps were added to the applicable bargaining contracts;  3) Plaintiffs are estopped from pursuing their claims because they knew or should have known of the contract changes yet took no action until 2007 when this suit was commenced;  4) They waived their rights to pursue claims based on step increases not available when they served;  and 5) They are barred from pursuing these claims under the doctrine of laches.   The plaintiffs have denied these special defenses.

The action, originally brought in Danbury Superior Court, was transferred to the Complex Litigation Docket in Waterbury and was tried on the regular docket on December 7, 8, and 16, 2010, at which time numerous witnesses testified, many exhibits and two hundred seventy-four (274) Joint Stipulations of Fact (Def.Exh. 561) were submitted, and closing arguments were heard.   The Stipulations provide the relevant factual underpinnings of the parties' dispute-to include the service history of each plaintiff.

The plaintiffs have asserted that, “[s]ince the time of their retirements, the defendant has taken certain actions to circumvent the provisions of the City Charter which guarantee ․ increases in their pension ․” Compl., ¶ 15.   They allege the “current pay grade seven corresponds to the pay grade five” at which they retired (¶ 24),¹ that “[t]he pay grade five on which the defendant is currently computing the plaintiffs' pension is not the same grade five under which they retired” (¶ 23), and that “the current pay grade seven corresponds to the pay grade five” under which the plaintiffs retired. ¶ 24.   They argue that, by continuing to dilute their pensions since Steps 6 and 7 were added in 1985 and 2007 respectively, the City has created a continuing violation of their pension rights.²

The plaintiffs do not challenge the City's authority to enter into or to administer labor agreements nor do they dispute that, under C.G.S. § 7-450(a), the City may by ordinance establish, inter alia, pension and retirement systems such as the police pension funds here at issue.   That statute reads in pertinent part:

Any municipality or subdivision thereof may, by ordinance, or with respect to a municipality not having the authority to make ordinances, by resolution adopted by a two-thirds vote of the members of its legislative body, establish pension, retirement, or other postemployment health and life benefit systems for its officers and employees and their beneficiaries, or amend any special act concerning its pension, retirement, or other postemployment health and life benefit systems toward the maintenance in sound condition of a pension, retirement, or other postemployment health and life benefit fund or funds, provided the rights or benefits granted to any individual under any municipal pension or retirement system shall not be diminished or eliminated ․

Nor does either party dispute that the centerpiece of this action is the pension Ordinance Section 14-52(c), Exh. 504, which reads:

With respect to the Pre-1967 Police Pension Fund of Danbury and to the 1967 Police Pension Fund of Danbury and to the pension benefits of their respective members, the term “pay,” as used in any applicable section of this article, shall be defined as the highest salary or compensation received by any regular member of either fund during the years in which such member served the city;  and such pension when determined by the appropriate board of directors shall not thereafter be reduced, but shall be increased to correspond to any increase in salary received by members of the same grade and rank of such member while in active service of the department.

Applicable Law

“It is well established that a city's charter is the fountainhead of municipal powers ․ The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised ․ Agents of a city ․ have no source of authority beyond the charter.  [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language.”  (Citations omitted.).  Alexander v. Retirement Board, 57 Conn.App. 751, 759 (2000).   Where the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful.  Id., citing New Haven v. Local 884, Council 4 AFSCME, AFL-CIO, 44 Conn.App. 764, 768, cert. denied, 241 Conn. 915 (1997).   When a charter is construed, the rules of statutory construction generally apply.  Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 9 (1988).  “As with the interpretation of a statute, the interpretation of a charter is a question of law for the court to decide.”   Alexander, supra, at 759.  (Citation omitted.)  “When construing a [city] charter, the court must determine the intent of the legislative body that promulgated the rules ․ To determine the intent of the charter, [t]he enactment must be examined in its entirety and its parts reconciled and made operative so far as possible.   Intent is to be ascertained from the language used, if it is plain and unambiguous;  or, if it is not, by considering the legislation in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances ․” (Internal quotation marks omitted.)  Testa v. Waterbury, 55 Conn.App. 264, 270 (1999).

The goal in interpreting a city's charter and ordinances is “to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case.”  Keely v. New Haven, 275 Conn. 580, 608 (2005).   Principles of contract law guide the interpretation of collective bargaining agreements.  Poole v. Waterbury, 266 Conn. 68, 87-88 (2003).  “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms ․ [A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 110 (2006), citing to Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498 (2000).   If its language ․ is clear and unambiguous, there is no room for alteration.   A corollary of this rule of construction is that the intent is to be found not in what a drafter meant to say but in the meaning of what was said.  Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 765 (1993).   It is assumed that the words express the intent, in which case there is no room for judicial construction.

Adjudication

The plaintiffs argue the language of the Ordinance (as above cited) must be read to mean that, because additional steps were added to the salary grid of current officers at a time when the pensioners had retired at the top step of their salary scale (at the highest pay “grade” for the “rank” each held at retirement),³ they should receive the benefit of the added steps-albeit those steps did not exist when they retired-so that they always remain at the “top” salary grade as they were when retired.   The necessary response is that to “interpret” the Ordinance (or the applicable collective bargaining agreement) in that way is to ignore the precise words of the documents so as to impart to the language an ambiguity not present.

Section 14-52(c), the Ordinance providing for police pension benefits under the Pre-1967 and 1967 Plans, is found in Article III of the Danbury Code of Ordinances.   Exh. 504.   The Ordinance makes three (3) pronouncements:  1) “Pay” is defined as the highest salary or compensation received by any such member during the years in which such member “served the city.”  (Emphasis added.);   2) Once determined by the appropriate board of directors, the pension amount shall not thereafter be reduced;  and 3) Such pensions, once appropriately calculated, shall be increased to correspond to any increase in salary received by members of the “same grade and rank of such member while in active service of the department.”  (Emphasis added.)   The parties agree the “pay” upon which pension calculations for these plaintiffs was made based upon the highest salary received by each plaintiff during the years each was actively employed.   Nor is there any dispute but that the pension amount received by each plaintiff has never been reduced.   Exh. 561-Joint Stipulations of Fact (“JSOF”)-# 255.   There was no evidence at trial that any plaintiff's pension has not increased as a result of salary increases given by bargaining agreements to current officers;  in fact, Officers DeMunnik, Foley (both James and Carl), and Pimental testified both at trial and by deposition that their pension amounts were increased as a result of current officers' salary increases.   Exh. 561-JSOF # 227;  Williams Tr., at 33.   Officer DeMunnik testified that, as a result of such increases in his pension amount, he had actually been paid less in his active years of service.

Interestingly, none of the former officers who testified at trial demonstrated, prior to his retirement, any interest in reviewing the language of the Ordinance or of the collective bargaining agreement under which that particular plaintiff had retired.   Detective Patrolman James Foley testified that, though he had once been President of the union, he never-once retired-asked to see either document to review the language re pensions because he was only interested in “salary increases” given current officers for their correlative impact on his pension amount.   Officer Pimental was still actively serving when Step 6 was added to the salary schedule and, thus, he realized the benefit of that step increase.   Yet, the gentleman testified he never inquired the effect-if any-yet another step increase during retirement would have on his pension amount.   He further testified that, while an executive officer of the union, he was not opposed to Step 7 having been ratified and recalled that, at that meeting, the City's Mayor stated the addition of yet another step would not affect retirees-a statement he later considered inaccurate because retirees had in his view been adversely affected by not having received it.   Officer Pimental, who had consulted a respected labor lawyer on this issue, conceded he had not asked anyone what would happen to his pension amount if Step 7 were added after he had retired.   Carl Foley, an ex union President, also testified he never asked what effect an added step would have on his pension.   Shown Exh. 528, the collective bargaining agreement in effect when he retired, he agreed there was no language in Art. 18-specifically Section 18.1-addressing that circumstance.   Robert Williams, who took a disability retirement in 2004, testified by deposition (Exh. 558).   Since the early 1980s, he had been active in the union, having served as President, Vice-President, and having been a member of the Executive Board.   His experience while on the Executive Board included being tasked with reviewing collective bargaining agreements to include the 1986-88 agreement (which he had negotiated as President of the union and which he signed on December 1, 1987) as well as the 1988-91 agreement (which he also-on August 24, 1989-signed as President).   He was involved in contract negotiations when Step 6 was added for certain ranks (sometime between the 1981-84 contract and the 1985-86 contract).   Williams recalled there being no language in the collective bargaining agreement applicable on his retirement date which indicated a step increase for current officers meant a corresponding step increase for retirees.   Exh. 561-JSOF # 232.   Nor could Officer Williams identify any such language in the Ordinance.   Exh. 561-JSOF # 228, # 237.⁴  No collective bargaining agreement from 1967 (Exh. 505) through June 30, 2009 (Exh. 530) contains any language stating a pensioner was entitled to move up a step when a step increase was added to the wage scale of current officers.   Exh. 561-JSOF # 46.   In fact, when the 1981 and 1985 negotiations resulted in increasing the number of steps for each rank, the union took no action to ensure retirees would reap the benefit of such change.   JSOF-# 48.   Further, the parties agree that, since at least January 1983, the union has been aware of step increases having been added yet took no steps to ensure those step increases would apply also to pensioners.   JSOF-# 49.

The Ordinance must be read as internally consistent;  no claim is made that it is not.   It is therefore relevant that, in defining “pay,” Sect. 14-52(c) (Exh. 504) stated it was the highest salary received by any regular member of either the 1967 or pre-1967 Police Pension Funds (of which all forty-eight [48] plaintiffs are members) during the years in which the member “served the city.”   It further provided increases shall be provided and must correspond to any salary increase received by members “of the same grade and rank” of that member “while in active service of the department.”   The Ordinance is simply devoid of any language that provides for a change in the “grade” of a pensioner after retirement.   The plaintiffs urge the court to interpret the language of both the Ordinance and the collective bargaining agreements (Exhs. 507-29 are the collective bargaining agreements which cover the plaintiffs' various retirement dates beginning 12/4/1969 and ending 8/6/05) to provide that officers at the highest pay grade for their rank at retirement will throughout their retirement-and beyond ⁵ -be entitled to a pension benefit calculated at the highest pay grade established after their retirement and available only to current officers of the same rank as these plaintiffs were when they retired.   The language chosen by the drafters of the Ordinance defeats that argument.   Instead, the drafters chose to say a retiree shall be compensated at the highest salary received during the years in which he “served the city.”   Section 14-52(c).  It also ignores that, applicable to members of the 1967 and pre-1967 Pension Plans (all of these plaintiffs), such pension benefits “shall be increased to correspond to any increase in salary received by members of “the same grade and rank” of the retiree while in “active service of the department.”   The language of the Ordinance does not entitle pensioners who retired at Step 5 to receive benefits conferred by the later addition of Step 6 (added in 1985) or Step 7 (added in 2007) because the pensioners' retirement pay is, by the express language of the Ordinance, to be calculated at the grade and rank of the retirees when they last served the City. The argument that the language is ambiguous denies the internal consistency of the chosen verbiage and the plaintiffs' interpretation is entirely blunted by the words the drafters chose.

Nor do the collective bargaining agreements buttress the plaintiffs' position.   In 1925 (before employees were unionized), the General Assembly passed a Special Act providing retired police officers who had at least twenty (20) years of service and were at least sixty-five (65) years of age would receive a monthly pension of not more than one-half (1/2) the compensation of active police officers;  it provided that such pension “shall not thereafter be reduced but may be increased to correspond to any increase in salary.”   Exh. 1, Def's. 1/8/10 Motion for Summary Judgment (hereafter “M/SJ”).⁶

An examination of the pension language in the applicable collective bargaining agreements yields the same result.   The first Agreement presented in the 1925 Special Act (Exh. 1 to 1/8/10 MSJ); ⁷  twice therein, it stated the amount received “shall not thereafter be reduced, but may be increased to correspond to any increase in salary.”   The word “may” was changed to “shall” in 1949 by Special Act 512, Section 4. Exh. 3. Despite the Union membership being limited to active employees, there is a history of labor contracts implementing language which impact retirees.   See, for example, the Agreements of July 1, 1972, and July 1, 1973, which provided retirees would be eligible for continued medical coverage on a 50/50 cost sharing basis.   Exhs. 9, 10-Art. 19, Sect. 19.5.   When, however, new Steps were added for Sergeants, Captains, and Lieutenants, effective January 1, 1983, no language was added to adjust the payment of pension benefits because of the new Steps having been added.   Then current employees covered by the Pre-1967 and 1967 Pension Plans would have the opportunity to advance on the Steps while employed;  nothing, however, provided that a retiree would move to the next higher Step. See Exh. 16, Articles XVIII and XIX. A new step (Step 6) was added for police officers and detective police officers with ten years service in the 1985-1986 Agreement with the same absence of language referable to the calculations of pension amounts for already retired officers.   Exh. 18.   Of specific interest is that negotiations in 1993 addressed the escalating costs of providing medical insurance and several cost containment measurements were implemented.   The drafters of that Agreement made clear by their language that medical insurance cost containment measures would be applicable to “retirees who retire on or after the date of implementation of [medical insurance] cost containment measures as well as their dependants and widows/widowers ․” Exh. 25, Art. 19, Sect. 19.3.   This language acknowledges that the parties to a collective bargaining agreement could-and did-include language impacting future pensioners when considered desirable or necessary.   Clearly they knew how to provide that retirees would be impacted by pension benefit changes made subsequent to retirement.   As defendant points out, these changes were made even after salary steps had been added;  yet, the pre-1967 and 1967 Pensions Plans stayed the course in limiting pension payment increases to those received by active officers of the same grade and rank as the retirees had when they retired.   If the Union had wanted retirees to benefit from the added Steps, they could have negotiated to secure such benefits but did not despite steps having been added at several different times.

That remained so when new Steps were negotiated in 2007 following a reorganization of the department.   The number of Captains and Lieutenants was reduced from six to three (6 to 3) and twelve to ten (12-10) respectively, thus significantly reducing promotional opportunities.   Several desk assignments (“inside jobs”) performed by uniformed officers were to be out sourced; ⁸  thus, many officers who had been working indoors would now be working on the road and, because those assignments were more physically demanding, the City and the Union again agreed to establish additional salary Steps.   They did not negotiate that present retirees would benefit from the new Steps nor that future retirees would advance on the salary schedule should new Steps later be added.

At trial, Saranne Murray, Esq. testified.   She has been the City's labor council and chief spokesperson in the City's collective bargaining negotiations with numerous unions-to include the City's police union.   She was the City's representative and spokesperson in negotiations regarding Vision 2009.   The negotiations actually began in June of 2006, concluded in March of 2007, and extended the then existing bargaining agreement from July 1, 2007, to June 30, 2009.   1/8/10 Tr., p. 10.   An additional Step-Step 7-was added for those officers in certain ranks (or positions) with eleven (11) years of service.   “The additional step was the ultimate agreed upon method of the parties to compensate employees in the bargaining unit who were actively working at the time for the anticipated impact on their conditions of employment of the reorganization in vision (sic) 2009.”  Id. She testified that, in the course of discussing whether the addition of Steps would have any impact on already retired officers, she and the City's actuary, having reviewed the language of the Ordinance providing for retirees under the Pre-1967 and 1967 Pension Funds, determined the Steps would have no impact on those pensioners.  Id., at 12-13.   She had also been advised by the Finance Department of the City that changes in the step structure had not had any effect on individuals retired prior to those changes.  Id., at 13.   Interestingly, the 1983 Pension Plan (which didn't affect the interests of any of these plaintiffs) had no provision comparable to that of the Pre-1967 or 1967 Pension Plans which linked salary increases for actives with increases for retirees (Id., at 14);  thus, these plaintiffs continue to have pension increases not afforded officers retiring under the 1983 Plan. She discussed her research with the Union's chief spokesperson (Atty. Erik Brown) as well as with the entire negotiating committee.

Much was made at trial of an e-mail Atty. Murray sent to Atty. Brown on January 23, 2007 (Plaintiffs' Trial Exh. 1), informing him of the results of her research as above just referenced.   The e-mail-in its entirety-reads:

According to the information we have so far on the post-retirement adjustments for the Pre- and Post-1967 Plans, a retiree who retired prior to the addition of Step 6 did not get the benefit of that new step-they got whatever salary increase those at step 5 got.   This seems to support interpretation of the phrase “same grade and rank” as including the step, not just the salary line.   Thus, we may be able to ensure that the increase due to reorganization does not create a windfall for retirees if we make a new step at each of the ranks which is getting the increase.   For Police Officer and Detective Police Officer, we could do that by making a Step 7 with 11 years of service, and then for the higher ranks by making a Step 4 for three years of service in the rank (since Step 3 is now 2 years).   The new step would be 1% above the old the first year, 2.5% the second year and 4.5% the third year.

Do you think this would fly with your client?   I don't want to propose something that will upset the process.9

The plaintiffs focused upon the City's intent that there be no “windfall” for retirees by virtue of an additional Step being created for current officers of certain ranks with eleven years of service as indicative of an intent to deny retirees a further increase in their pension benefits.   What this argument ignores is that the intent of Vision 2009 was to compensate current officers for a more difficult work environment with markedly fewer opportunities for advancement.   When viewed from the vantage point of the purpose of the reorganization, it would in fact have been both an unexpected and unearned gain had the retirees received the financial incentives intended only for current officers disadvantaged by Vision 2009.¹⁰  No other evidence was offered to support the retirees' argument the City acted duplicitously so as to deprive these plaintiffs.   No claim is made these plaintiffs were forced-or encouraged-to retire when they did or that the City made promises it failed to deliver.   Contrary to plaintiffs' assertion that the reference in Atty. Murray's e-mail to a “windfall” was a demeaning characterization of increases due the retirees and an attempt to circumvent the pensioners' rights (Opp. Mem. to MSJ, 3/19/10, at 18), the assertion these plaintiffs were “due” the increase afforded by additional steps or that they had a “right” to receive such additional increases many years post-retirement is unpersuasive given their inability to identify the source of such rights.   The argument that the clear implication of the e-mail is to find a way to increase the pay of current officers “while avoiding the requirements of the pension ordinance to match the increase provide (sic) active members with a commensurate increase to the retired members” (Id.) denies the language of the Ordinance and rests solely upon the retirees' subjective belief that “same grade and rank” must be interpreted so as to include “grades” no one of the plaintiffs had when they served the City.

The plaintiffs posit their pensions have been “diminished” because, in calculating their pension amounts, the City does not use as the basis the highest salary level of current officers (Opp. Mem. to MSJ, 3/19/10, at 9) and that such diminution violates C.G.S. § 7-450c.   That argument ignores that the statute only precludes a municipality shall not diminish or eliminate any benefit “granted to any retiree under such retirement or pension system that was in effect on the date of such retiree's retirement (Emphasis added.).”   The symmetry of this statutory language and that of the Ordinance in defining “pay” as the highest compensation received during the years the member “served the City” (Exh. 4-Art.   III of Danbury Code, MSJ, 1/8/10) negates the retirees' argument not merely because at trial and in depositions the retired officers testified they do not now receive less in their pension checks but in fact receive more as a result of salary increases given current officers but also because it is clear the drafters of the Ordinance ¹¹ intended to-and did-echo the statutory verbiage.

The City has breached no duty owed the plaintiffs.   It is compliant with the applicable ordinances and collective bargaining agreements.   The retirees have received all that the defendant has promised.   The plaintiffs' claims for injunctive and declaratory relief are denied.

Judgment for the defendant enters this date.

Sheedy, J.

FOOTNOTES

FN1. In fact, not all of the plaintiffs retired at pay grade 5 but all plaintiffs claim their pension benefits have been diluted since Steps 6 and 7 were added because all retired at the highest salary level for the rank at which they were when they last served the City..  FN1. In fact, not all of the plaintiffs retired at pay grade 5 but all plaintiffs claim their pension benefits have been diluted since Steps 6 and 7 were added because all retired at the highest salary level for the rank at which they were when they last served the City.

FN2. Having effectively pled a continuing course of conduct, the affirmative statute of limitations defense may be defeated.   See Sherwood v. Danbury Hospital, 252 Conn. 193, 203-04, 207, n.12 (2000).   There must however be evidence of a breach of duty that remained in existence after the commission of the claimed original wrong and the duty owed must not have terminated prior to commencement of the period allowed for bringing a suit based on that wrong.   Finally, there must be evidence of either a special relationship between the parties giving rise to a continuing duty or some later wrongful conduct related to the prior act.   Id., at 203..  FN2. Having effectively pled a continuing course of conduct, the affirmative statute of limitations defense may be defeated.   See Sherwood v. Danbury Hospital, 252 Conn. 193, 203-04, 207, n.12 (2000).   There must however be evidence of a breach of duty that remained in existence after the commission of the claimed original wrong and the duty owed must not have terminated prior to commencement of the period allowed for bringing a suit based on that wrong.   Finally, there must be evidence of either a special relationship between the parties giving rise to a continuing duty or some later wrongful conduct related to the prior act.   Id., at 203.

FN3. The term “rank” as used both in the Ordinance and the collective bargaining agreement is the “job title” or “job classification” for civil service purposes-i.e., “patrol officer,” “Detective Captain,” etc.   The term “grade” as used in the pension ordinance is the correlative of “step” as used in the bargaining contract.   Transcript, Saranne Murray, Esq., 12/8/10, at pp. 5, 33..  FN3. The term “rank” as used both in the Ordinance and the collective bargaining agreement is the “job title” or “job classification” for civil service purposes-i.e., “patrol officer,” “Detective Captain,” etc.   The term “grade” as used in the pension ordinance is the correlative of “step” as used in the bargaining contract.   Transcript, Saranne Murray, Esq., 12/8/10, at pp. 5, 33.

FN4. Yet, it was Officer Williams' “belief” that, when Step 6 was added, both current and retired officers with ten (10) years experience on the job would reap the benefit of the increase attached to that step.   That was based on his “understanding” of the pension plan and what was told to him by others when he joined the force.   Williams Dep. Tr., at 41.   Thus when Step 6 was added, he made no formal inquiry regarding the effect of the same on retirees nor did he discuss the same with union leadership.   Id., at 45..  FN4. Yet, it was Officer Williams' “belief” that, when Step 6 was added, both current and retired officers with ten (10) years experience on the job would reap the benefit of the increase attached to that step.   That was based on his “understanding” of the pension plan and what was told to him by others when he joined the force.   Williams Dep. Tr., at 41.   Thus when Step 6 was added, he made no formal inquiry regarding the effect of the same on retirees nor did he discuss the same with union leadership.   Id., at 45.

FN5. Surviving spouses, dependent children, and parents will, upon a retiree's death, take an adjusted annual pension as provided for by Sec. 14-58 of the Ordinance.   It provides that the adjusted pension amount is calculated as a percentage of the “pay and rank as was held by such former member at the time of such former member's death ․ or alternatively may elect to and shall have such member's total contribution to the appropriate police union fund returned ․” (Emphasis added.)   See e.g., 14-58(a)(2), (b)(2).   Again, the comparators are current officers of the same “grade and rank” of the retiree upon his death..  FN5. Surviving spouses, dependent children, and parents will, upon a retiree's death, take an adjusted annual pension as provided for by Sec. 14-58 of the Ordinance.   It provides that the adjusted pension amount is calculated as a percentage of the “pay and rank as was held by such former member at the time of such former member's death ․ or alternatively may elect to and shall have such member's total contribution to the appropriate police union fund returned ․” (Emphasis added.)   See e.g., 14-58(a)(2), (b)(2).   Again, the comparators are current officers of the same “grade and rank” of the retiree upon his death.

FN6. The Motion for Summary Judgment was not heard prior to trial..  FN6. The Motion for Summary Judgment was not heard prior to trial.

FN7. All of the identified exhibits with reference to collective bargaining agreements are as marked as attachments to the 1/8/10 MSJ..  FN7. All of the identified exhibits with reference to collective bargaining agreements are as marked as attachments to the 1/8/10 MSJ.

FN8. Use of civilians expanded from six to forty (6-40) positions to include dispatch/communications, the property room, and record keeping.   See Exh. 38 of 1/8/10 MSJ. The reorganization plan came to be known as “Vision 2009.”.  FN8. Use of civilians expanded from six to forty (6-40) positions to include dispatch/communications, the property room, and record keeping.   See Exh. 38 of 1/8/10 MSJ. The reorganization plan came to be known as “Vision 2009.”

FN9. No response from Attorney Brown has been produced..  FN9. No response from Attorney Brown has been produced.

FN10. “Windfall” is an unexpected, unearned, or sudden gain or advantage.   Merriam-Webster's Collegiate Dictionary, Tenth Edition, 1998, p. 1355..  FN10. “Windfall” is an unexpected, unearned, or sudden gain or advantage.   Merriam-Webster's Collegiate Dictionary, Tenth Edition, 1998, p. 1355.

FN11. As earlier herein referenced, the same language is found in the collective bargaining agreements..  FN11. As earlier herein referenced, the same language is found in the collective bargaining agreements.

Sheedy, Barbara J., J.