1565 387 AFSCME v. Leo C. Arnone, State of Connecticut Commissioner of Corrections et al. (2012)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS

This is the most recent of several lawsuits filed in Hartford arising from the state budget process of 2011, and raising subject matter jurisdiction issues.¹  At some point, no later than May 11, 2011, the defendant, commissioner of correction for the state of Connecticut, Leo C. Arnone (Arnone) decided to close the Bergin Correctional Institution (Bergin) and communicated that fact to the plaintiffs, Locals 1565 and 387 (unions), who represent Connecticut correction officers.   The decision was largely driven by budgetary constraints and, specifically, the need to cut almost $70 million from the department of correction (DOC) budget, as part of an effort to avoid a state budget deficit for fiscal year 2011–12.   Realistically, to cut such a large sum from the DOC budget, a prison had to be closed.   Bergin was chosen both because of its size and because its inmates were classified as a level two, making them easier to accommodate in other correctional facilities than inmates with a higher security level.   Layoffs of the unions' members were to accompany the closing.

The following sequence of events ensued.   First, an agreement was reached between the SEBAC ² negotiators and the state, and the layoff notices were rescinded.   Then that agreement failed to be ratified in voting by the SEBAC union members.   The layoff notices to correction officer members of the plaintiff unions were reissued.   During that protracted process, Bergin began closing down.   Inmate intake ceased, inmates were transferred to other DOC facilities and staff was transferred.   By the end of July, the last inmate left Bergin.   On August 1, 2011, the unions made a demand upon Arnone to negotiate the impact of closing Bergin upon the health and safety of their members.   By August 5, the last DOC employee left Bergin.   By a filing dated August 8, 2011, the plaintiffs filed a prohibited practices complaint against the DOC with the state board of labor relations.

The plaintiff unions commenced this lawsuit on August 9, 2011.   The revised concession and job security agreement, reached between the state and SEBAC negotiators, was later ratified by the state employee unions.   On August 25, 2011 the plaintiffs and defendant Arnone executed a memorandum of understanding as to employees who were “displaced, reassigned, or laid off between June 2011 and August 2011.”   It specifically provided that after ratification of the SEBAC and state agreement by the legislature, all layoff notices would be rescinded.   Subsequently, that agreement was ratified by the legislature and the layoff notices were again rescinded.   The budget incorporating the state and SEBAC concessions took effect.

Bergin remained closed.   The inmates and staff were already reassigned to other facilities and the expense to reopen the closed prison was beyond the DOC budget.   In addition, the unconventional housing units used in other facilities after the closure of Bergin were to be eliminated by November 2011 because of a declining prison population.³  The total prison population in Connecticut will drop by at least 1,500 inmates between the time of suit and August 2012.   The population of Bergin immediately prior to the decision to close it was 978 inmates.

The complaint, which is thirty-eight pages long, alleges many facts but essentially complains that closing Bergin will result in overcrowding in the remaining prisons, placing union members at increased risk of personal harm, that the state failed to bargain with the plaintiffs about the impact of closing Bergin, that the closing means layoffs of union members and that the governor, not Arnone, ordered the closure of Bergin.   The plaintiffs allege that the closure of Bergin constitutes a violation of the union members' substantive due process rights under the United States and Connecticut constitutions to be free from state action that increases the risk of harm to them, and is an action by the governor in excess of his statutory authority.   The plaintiffs seek temporary and permanent injunctive relief to prevent the layoff of their members and the closing of Bergin and “[r]equiring that any inmates and correctional officers that have been transferred out of Bergin be transferred back to that prison pending the outcome of this matter.”   The plaintiffs also seek declaratory judgments that the closing of Bergin has violated the correction officers' substantive due process rights and that the governor acted in excess of his statutory authority in ordering a prison closed.   The actions complained of, and the relief sought, relate solely to Bergin.   Gates Correctional Institution, another Connecticut prison, was closed by the DOC on June 1, 2011, with first notice of that closing being given to the plaintiff, Local 1565, on April 1, 2011.

In response to the complaint of the plaintiffs, the defendants have moved to dismiss the complaint on four grounds:  Mootness, the failure of the plaintiffs to exhaust their administrative remedies, the doctrine of sovereign immunity and the political question doctrine.⁴  After each side filed two briefs addressing the motion to dismiss, the court held an evidentiary hearing.   At that hearing the plaintiffs called as witnesses Lisamarie Fontano, president of Local 387 and Luke Leone, president of Local 1565.   The defendants placed the deposition testimony of Arnone into evidence.   Each side presented additional exhibits and made oral argument.

I

The Legal Standard

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  C.R. Klewin Northeast, LLC v. State, 299 Conn. 167, 174, 9 A.3d 326 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).   The court is not limited to the allegations of the complaint in determining a motion to dismiss, where the parties have supplemented the record with uncontested evidentiary material.  Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  (Internal quotation marks omitted.)   Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

In this case, the defendants have raised issues of justiciability, which speak to the court's jurisdiction over the subject matter.  “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ․ Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant ․ As we have recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter.”   (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206 (2010).   The doctrine of exhaustion of administrative remedies also implicates subject matter jurisdiction.  Pet v. Dept. of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988).   In deciding these issues, the court recognizes that “[t]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).

II

Mootness

“It is a well-settled general rule that the existence of an actual controversy is an essential question to ․ jurisdiction;  it is not the province of ․ courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow ․ An actual controversy must exist not only at the time the [case is brought] but also throughout the pendency of the [case] ․ When, during the pendency of [a case], events have occurred that preclude [the] ․ court from granting any practical relief through its disposition on the merits, a case has become moot ․ The determination of whether a claim has become moot is fact sensitive ․” (Citations omitted;  internal quotation marks omitted.)   Ayala v. Smith, 236 Conn. 89, 93–94, 671 A.2d 345 (1996).

The plaintiffs' complaint seeks injunctive relief to prevent the layoffs, reassignment or relocation of correction officers.   Those layoffs were rescinded subsequent to the initiation of the lawsuit.   The issue of reassignment and relocation of correction officers was resolved by the memorandum of understanding between the parties, signed approximately two weeks after the suit was filed.   Accordingly, prayers for relief A4, B4 and C4 are moot.

Bergin prison closed four days before this case was initiated and the last inmate left that prison more than a week before this case was brought.   Accordingly, prayers for relief A1–3, 5 and 6;  B1–3, 5 and 6;  and C1–3, 5 and 6, which seek to enjoin the closure of Bergin and transfer of inmates from Bergin, are moot.

Prayers for relief A7, B7 and C7 each seek injunctive relief ordering that inmates and correction officers be transferred back to Bergin.   The plaintiffs also seek declaratory relief that, by closing Bergin and laying off correction officers, the substantive due process right of the officers to be free from increased danger has been violated.

Bergin is now closed.   The only evidence submitted on the issue indicates that it would be prohibitively expensive to reopen it.   These prayers are premised upon allegations, made in August 2011, that the inmate population within the remaining prisons was expanded by the transfer of Bergin prisoners such that inmates were placed in unconventional housing i.e. temporary beds in gyms, offices, etc. with a resultant overcrowding and loss of prisoner amenities (indoor recreation, showers, programs), thereby causing an increased risk of prison violence.   They were also premised upon correction officers being laid off, causing understaffing at the prisons.   In short, these prayers for relief are premised upon no change in the prison situation since early August 2011.

However, the layoffs did not occur.   And the evidence is uncontroverted that the inmate prison population would drop, with an end to the unconventional housing, and any attendant safety concerns, by November 2011.   For all those reasons, these prayers for relief are moot.

Finally, the plaintiffs seek a declaratory judgment that the governor acted in excess of his authority in ordering Bergin closed.⁵  However such a declaration, in the absence of injunctive relief, is inappropriate.  “Courts sit to determine causes and to enforce their determination.   It is a general rule that what they cannot enforce they cannot decree ․ It is not our function to render opinions which are simply advisory.”  (Citation omitted;  internal quotation marks omitted.)  Pellegrino v. O'Neill, 193 Conn. 670, 683, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S.Ct. 236, 83 L.Ed.2d 176 (1984).

The plaintiffs have claimed that this case falls within the ‘capable of repetition’ exception to the mootness doctrine.   To fall within that exception, the plaintiffs must establish:  “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before ․ litigation can be concluded.   Second, there must be a reasonable likelihood that the question presented in the pending case will rise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as a surrogate.   Third, the question must have some public importance.   Unless all three requirements are met, the [case] must be dismissed as moot.”  (Internal quotation marks omitted.)  Ayala v. Smith, supra, 236 Conn. 95.

The plaintiffs fail to meet the ‘capable of repetition’ exception as to the first and second grounds.   On both occasions that a prison was closed (Gates and Bergin), the plaintiffs had at least two months advance notice.   The effect, if any, of a future closing of a prison and/or layoff of correction officers was not established to be of such a limited duration that a majority of challenges to future closure and layoffs will become moot before future litigation can be concluded.   Nor is the second exception established.   The on again, off again nature of the 2011 SEBAC and state negotiation process may explain why the plaintiffs delayed, but those particular circumstances cannot be reasonably expected to occur in the future.   Nor is there an established likelihood that prisons will be closed in the future under circumstances that result in layoffs or the use of unconventional housing, with a reduction of prisoner amenities and any resultant safety risk to correction officers.   Under these circumstances, the plaintiffs have failed to establish the applicability of the ‘capable of repetition’ exception.

Because the claims set forth in the plaintiffs' complaint have become moot since this action was initiated, and the remedies requested are moot, this case is not justiciable.   The motion to dismiss is granted.

III

Exhaustion of Administrative Remedies

The defendants have claimed that the plaintiffs have failed to exhaust their administrative remedies so as to deprive this court of jurisdiction.   Specifically, they claim that the plaintiff unions have not yet finished the adjudication of their claim before the state board of labor relations which alleges that the defendants engaged in a prohibited practice.   In that claim, the plaintiffs allege that the defendants failed to bargain collectively in good faith concerning the impact upon the health and safety of the correctional officers from the closing of Bergin.   The defendants also claim, accurately, that the plaintiffs have neglected to pursue their contractual ⁶ and statutory right to present any employee health and safety issues arising from the closing of Bergin to the state department of labor, under the Connecticut Occupational Safety and Health Act (COSHA).

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter ․ Because the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff[s'] claim ․ [W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to its previous rulings ․ The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions ․ The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ․ in advance of possible judicial review ․ Most important, a favorable outcome will render review by the court unnecessary as the United States Supreme Court has noted:  A complaining party may be successful in vindicating his rights in the administrative process.   If he is required to pursue his administrative remedies, the courts may never have to intervene.”  (Citations omitted;  internal quotation marks omitted.)  Pet v. Dept. of Health Services, supra, 207 Conn. 350–52 (1988).

It is undisputed that the plaintiffs have not yet finished the process of adjudicating the complaint which they initiated before the state board of labor relations, only one day before the commencement of this suit.   The gist of that complaint is that the DOC failed to bargain in good faith with the plaintiffs concerning the impact of the closure of Bergin on its members.   The impact of the closure of Bergin on its members constitutes the core of this lawsuit.⁷  This court does not accept the plaintiffs' argument that pursuit of the claim that the DOC failed to bargain in good faith about the Bergin closure is futile merely because the plaintiffs have raised purportedly constitutional claims in their complaint.  “It is a cardinal principle of judicial review that when an adequate administrative remedy is provided by law, it should be exhausted ․ Claims of constitutional violations are no exception to this general rule ․ Application of this principle, however, is limited to those situations where the pursuit of administrative remedies is not necessarily futile.”  (Citations omitted;  internal quotation marks omitted).  Sullivan v. State, 189 Conn. 550, 553–54, 457 A.2d 304 (1983).   To the extent that the plaintiffs claim the process before the state board of labor relations was too slow to prevent the closure of Bergin, that is irrelevant.   Bergin was closed before this lawsuit was brought.   Nor is the court persuaded that allowing the complaint to the board of labor relations to run its course will necessarily prove futile.

In addition, the collective bargaining agreement of July 1, 2008, which remains, in relevant part, in place between the parties, provides that:  “[D]isputes over unsafe or unhealthy working conditions shall be processed through the Labor Department for compliance with COSHA ․” Article 24 SAFETY, Corrections [NP–4] Bargaining Unit Contract Between State of Connecticut and Council 4 of the American Federation of State, County and Municipal Employees, page 50.⁸

COSHA is specifically designed for the protection of state employees.   In General Statutes § 31–67(d) ‘Employer’ is defined as “the state and any political subdivision thereof.”   COSHA is available to any state employee under Connecticut law, including the plaintiffs, regardless of the provisions of the collective bargaining agreement between the parties.   It is administered by the state department of labor (DOL).⁹

General Statutes § 31–370(a) provides that:  “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”   The plaintiffs' allegations as to the effects of closing Bergin (overcrowding resulting in an increased risk of bodily harm to the union members because of inmate violence and an increase in the transmission of treatment resistant diseases from inmates to correction officers), fall within the scope of § 31–370(a).

General Statutes § 31–374(f)(1) specifically provides that an employee or his union may notify the labor department of any imminent danger of physical harm.   If the DOL determines that there are reasonable grounds to believe that such a danger exists, it must make an inspection.¹⁰

The labor commissioner is required by General Statutes § 31–375 to promptly issue a citation for violation of General Statutes § 31–370(a) if, after inspection, he believes that the DOC has created a hazard likely to seriously harm the unions' members.   He is required to do so in writing, stating in detail the nature of the violation and fixing a reasonable time for abatement of the violation.¹¹

COSHA provides for an appeal process to contest any citation, by either the DOC or the unions, to a COSHA review commission under General Statutes § 31–377.   After all administrative remedies are exhausted, either the DOC, the unions or the DOL may then appeal to the superior court under the Uniform Administrative Procedures Act.¹²

Significantly, if the commissioner of labor believes that the danger to the correctional officers is so imminent that it cannot await the conclusion of the normal COSHA enforcement process, he has recourse to petition the Superior Court for an injunction to correct such conditions.   And if the labor commissioner arbitrarily or capriciously fails to so do, the unions may bring an action in Superior Court against the DOL for a writ of mandamus to compel the commissioner to seek such a court order.¹³

The plaintiff unions do not contest that they failed to exhaust their administrative remedies under COSHA but attempt to excuse that failure by claiming that such exhaustion would be futile.

First, they complain that the DOL would be unable to act quickly enough to prevent the closure of Bergin.   This argument ignores the reality that Bergin was closed four days prior to this suit being initiated.   Second, they assert that they were unable to know to which prison to refer the DOL for overcrowding while Bergin was still open.   This argument also ignores the reality that the Bergin prisoners were all reassigned more than a week before this suit was filed.

Third, they insist that the DOL lacks sufficient expertise to determine if the increased prison crowding imposes a danger to the correctional officers, but offer no proof of such a lack of expertise.   The court is unpersuaded by this argument.   The legislature has empowered the DOL to oversee questions concerning safe working environments for all state employees.   That the plaintiffs doubt the expertise of the DOL does not render the administrative remedy of filing a COSHA complaint legally futile.   If a subjective lack of faith by a plaintiff in the ability of an administrative agency rendered an administrative remedy futile, the exhaustion of administrative remedies rule would be swallowed by the futility exception.

The plaintiffs' attempt to avoid the COSHA process by bringing suit directly in this court would, if allowed, frustrate the multiple and sound policy reasons underlying the exhaustion of administrative remedies principle.   Because the plaintiffs have failed to exhaust their administrative remedies, this case is not justiciable.   For this additional reason, the motion to dismiss is granted.

Conclusion

In the present case, the defendants have demonstrated that the plaintiffs failed to exhaust their administrative remedies under COSHA and before the state labor relations board.   Additionally, the claims set forth in the plaintiffs' complaint and the remedies requested in that complaint have been made moot by events since this case was initiated.   For both of these reasons, the court may not exercise jurisdiction over this case.   The motion to dismiss is granted.

James T. Graham

Superior Court Judge

FOOTNOTES

FN1. See also Roger Sherman Liberty Center, Inc. v. Donald Williams, 52 Conn.Sup. 118, 28 A.3rd 1026 (2011) and Connecticut State Police Union v. Dept. of Emergency Services & Public Protection, Superior Court, judicial district of Hartford, Docket No. CV116024776 (January 13, 2012, Graham, J.).  FN1. See also Roger Sherman Liberty Center, Inc. v. Donald Williams, 52 Conn.Sup. 118, 28 A.3rd 1026 (2011) and Connecticut State Police Union v. Dept. of Emergency Services & Public Protection, Superior Court, judicial district of Hartford, Docket No. CV116024776 (January 13, 2012, Graham, J.)

FN2. SEBAC is an acronym for the coalition of state employee unions which negotiated with the state over concessions and job security in connection with the budget in question..  FN2. SEBAC is an acronym for the coalition of state employee unions which negotiated with the state over concessions and job security in connection with the budget in question.

FN3. The inmate population annually increases temporarily from July to October..  FN3. The inmate population annually increases temporarily from July to October.

FN4. Because this motion has been disposed of upon other grounds, the court does not reach the claims as to sovereign immunity and the political question doctrine..  FN4. Because this motion has been disposed of upon other grounds, the court does not reach the claims as to sovereign immunity and the political question doctrine.

FN5. The evidence is to the contrary.   Arnone decided to close a prison and chose Bergin.   Further, the governor is the chief executive of the state.  “The supreme executive power of the state shall be vested in the governor.”   Conn. Const., art.   IV, § 5..  FN5. The evidence is to the contrary.   Arnone decided to close a prison and chose Bergin.   Further, the governor is the chief executive of the state.  “The supreme executive power of the state shall be vested in the governor.”   Conn. Const., art.   IV, § 5.

FN6. The contract between the plaintiffs and the DOC expired on June 30, 2011.   The plaintiffs allege, and the defendants do not contest, that the parties still had an obligation to negotiate mandatory conditions of employment under General Statutes § 5–278a..  FN6. The contract between the plaintiffs and the DOC expired on June 30, 2011.   The plaintiffs allege, and the defendants do not contest, that the parties still had an obligation to negotiate mandatory conditions of employment under General Statutes § 5–278a.

FN7. The other crucial impact on the plaintiffs, the layoffs, had been rescinded by the time of the hearing on this motion to dismiss..  FN7. The other crucial impact on the plaintiffs, the layoffs, had been rescinded by the time of the hearing on this motion to dismiss.

FN8. The plaintiffs contend in their complaint, and the court accepts, that:  “[T]he parties' obligation to negotiate mandatory conditions of employment survives expiration of the agreement pursuant to Connecticut General Statutes § 5–278a.”.  FN8. The plaintiffs contend in their complaint, and the court accepts, that:  “[T]he parties' obligation to negotiate mandatory conditions of employment survives expiration of the agreement pursuant to Connecticut General Statutes § 5–278a.”

FN9. “There is created in the Labor Department a Division of Occupational Safety and Health ․ This division shall administer all matters pertaining to occupational safety and occupational health.”  General Statutes § 31–368(a)..  FN9. “There is created in the Labor Department a Division of Occupational Safety and Health ․ This division shall administer all matters pertaining to occupational safety and occupational health.”  General Statutes § 31–368(a).

FN10. “Any employee or representative of employees who believes that there is a violation of an occupational safety or health standard or that there is an imminent danger of physical harm may request an inspection by giving notice to the commissioner ․ of such violation or danger ․ If upon receipt of such notification the commissioner determines there are reasonable grounds to believe that such violation or danger exists, he shall make an inspection ․ as soon as practicable ․” General Statutes § 31–374(f)(1)..  FN10. “Any employee or representative of employees who believes that there is a violation of an occupational safety or health standard or that there is an imminent danger of physical harm may request an inspection by giving notice to the commissioner ․ of such violation or danger ․ If upon receipt of such notification the commissioner determines there are reasonable grounds to believe that such violation or danger exists, he shall make an inspection ․ as soon as practicable ․” General Statutes § 31–374(f)(1).

FN11. General Statutes § 31–375(a) reads, in relevant part, as follows:  “If, upon inspection or investigation, the commissioner ․ believes that an employer has violated any provision of ․ [§ ]31–370 ․ he shall, with reasonable promptness, issue a citation to the employer.   Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of this chapter ․ alleged to have been violated.   The citation shall fix a reasonable time for the abatement of the violation.”.  FN11. General Statutes § 31–375(a) reads, in relevant part, as follows:  “If, upon inspection or investigation, the commissioner ․ believes that an employer has violated any provision of ․ [§ ]31–370 ․ he shall, with reasonable promptness, issue a citation to the employer.   Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of this chapter ․ alleged to have been violated.   The citation shall fix a reasonable time for the abatement of the violation.”

FN12. “Any person, including the commissioner, adversely affected or aggrieved by an order of the review commission, after all administrative remedies provided by this chapter have been exhausted, is entitled to judicial review in accordance with section 4–183.”  General Statutes § 31–378..  FN12. “Any person, including the commissioner, adversely affected or aggrieved by an order of the review commission, after all administrative remedies provided by this chapter have been exhausted, is entitled to judicial review in accordance with section 4–183.”  General Statutes § 31–378.

FN13. General Statutes § 31–380(a) provides in relevant part:  “The Superior Court shall have jurisdiction upon petition by the commissioner to restrain or enjoin any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this chapter ․” Section 31–380(c) provides in relevant part:  “If the commissioner arbitrarily or capriciously fails to seek relief under this section, any employee who may be injured by reason of such failure ․ or the representative of such employee, may bring an action against the commissioner in the superior court ․ for a writ of mandamus to compel the commissioner to seek such an order ․”.  FN13. General Statutes § 31–380(a) provides in relevant part:  “The Superior Court shall have jurisdiction upon petition by the commissioner to restrain or enjoin any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this chapter ․” Section 31–380(c) provides in relevant part:  “If the commissioner arbitrarily or capriciously fails to seek relief under this section, any employee who may be injured by reason of such failure ․ or the representative of such employee, may bring an action against the commissioner in the superior court ․ for a writ of mandamus to compel the commissioner to seek such an order ․”

Graham, James T., J.