State of Connecticut Ex Rel George Jepsen, Attorney General v. James J. Santorella (2013)

MEMORANDUM OF DECISION RE MOTION FOR PARTIAL SUMMARY JUDGMENT (# 108)

In this action the plaintiff, the State of Connecticut through its Attorney General, seeks revocation and/or reduction of the pension benefits of the defendant, James Santorella, pursuant to General Statutes § 1–110a(a) on the grounds that he was convicted of a crime related to state or municipal office.   The State seeks partial summary judgment on the issue of liability.

Both parties submitted memoranda in support of their positions and oral argument on the motion was heard by the court on January 7, 2013.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Citation and internal quotation marks omitted.)   The Episcopal Church v. Gauss, 302 Conn. 408, 421–2 (2011).

General Statutes § 1–110a(a) states:  “Notwithstanding any provision of the general statutes, on or after October 1, 2008, if any public official or state or municipal employee is convicted of or pleads guilty or nolo contendere to any crime related to state or municipal office in state criminal or federal criminal court, the Attorney General shall apply to the Superior Court for an order to revoke or reduce the pension of any kind to which such public official or state or municipal employee is otherwise entitled under the general statutes for service as a public official or state or municipal employee.”

Thus, to come within the provisions of the statute the State must prove that:  1) Santorella was a public official or state or municipal employee;  and 2) he was convicted of or pled guilty or nolo contendere to a crime related to state or municipal office in state criminal or federal criminal court.

As to the first criteria, for purposes of General Statutes § 1–110a(a), General Statutes § 1–110(2) states that:  “ ‘State or municipal employee’ means state employee, as defined in section 5–154, and includes an employee of any quasi-public agency, as defined in section 1–120, or any person, whether appointed or under contract, who provides services for a city, town or other political subdivision of the state for which a pension is provided.”   The defendant has admitted in his answer that he was employed by the City of Stamford from June 10, 1974 through May 21, 2010 and that he is entitled to pension benefits by virtue of his employment by the City of Stamford.

The issue before the court focuses on the second criteria, that is, whether Santorella was “convicted of or [pled] guilty or nolo contendere to any crime related to state or municipal office” within the meaning of the statute.

A review of the evidence presented reveals that the following facts are undisputed:  Santorella was arrested and the state charged, by long form information, that:  “in the City of Stamford between February 2010 and May 2010, the said James Santorella as an officer and agent of a public community, to wit:  the City of Stamford, with intent to prejudice the said City of Stamford, appropriated its property to his own use, the value of said property exceeding Two Thousand Dollars ($2,000), in violation of Sections 53a–119(6), 53a–121(b) and 53a–122(a)(4) of the Connecticut General Statutes.”   Exhibit A to Affidavit of Thomas J Martin.   On September 8, 2011 Santorella pled guilty to one count of larceny in the First Degree in violation of General Statutes §§ 53a–119(6), 53a–121(b) and 53a–122(a)(4).   At the time he pled guilty, the state's attorney recited the factual basis of the plea.   Santorella agreed that those facts were substantially correct.   Those facts disclose that Santorella took funds from an account belonging to the City of Stamford containing bid deposits.   As part of the criminal proceedings, Santorella made restitution to the City of approximately $133,000.

The defendant claims that his guilty plea is not conclusive of issues of fault or liability.   He cites Jacobs v. Goodspeed, 180 Conn. 415, 418–9 (1980).   There the defendant had pled guilty to the statute prohibiting following too closely regarding the accident concerning which the negligence suit was brought.   The trial court set aside the verdict for the defendants finding that the evidence established that the defendant was negligent as a matter of law.   The Supreme Court reversed.   The Court held that:  “The defendant's guilty plea to the statutory violation was an admission tending to prove his negligence ․ as was his statement in his motor vehicle report.   Such admissions, however, are not conclusive.”   Santorella also cites Rawling v. New Haven, 206 Conn. 100, 111 (1988), where the Court stated:  “As a general rule, a criminal judgment based on a plea of nolo contendere or a plea of guilty has no preclusive effect in a subsequent civil action, even though, under the law of evidence, a plea of guilty may constitute an admission against interest.   1 Restatement (Second), Judgments 85, comment b (1982).   This rule is justified because neither type of plea is the product of actual litigation.   The same reasoning applies equally to a dismissal of criminal charges.”   More recently, in Griffin v. Parker, 22 Conn.App. 610, 623 (1990), reversed on other grounds, 219 Conn. 363 (1991), the court held:  “We conclude that [a] prior conviction estops a party in a later civil suit from contesting facts necessarily established in the criminal proceeding ․ Symmetry of the parties in the two cases is not controlling.   Fairness is.   If the defendant did not appeal from his criminal conviction, it would ordinarily not be unfair to prevent him from relitigating, in a subsequent civil action, the precise issue determined by a higher standard of proof in the prior criminal action.”   (Citation and internal quotation marks omitted.)   Therefore a conviction based on a guilty plea may not have preclusive effect in subsequent civil proceedings, while a conviction after trial will.

However, in this case, regardless of the preclusive effect of Santorella's guilty plea in some other context, the court agrees with the State that the issue, under the statute, is not whether, as Santorella claims, he actually engaged in the conduct alleged and committed the crimes charged, but whether he was “convicted of or [pled] guilty or nolo contendere to any crime related to state or municipal office.”  “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case ․ When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ․ In seeking to determine that meaning ․ [General Statutes] § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․” State v. Webster, 308 Conn. 43, 51–2 (2013).   The language of the statute directs that court determine whether Santorella pled guilty to a crime “related to state or municipal office,” not whether the facts which formed the basis of his arrest and plea were or could be proven.   The language of General Statutes § 1–110a(a) is clear in that the only issue to be determined here is whether Santorella pled guilty to a crime related to state or municipal office as defined by General Statutes § 1–110(3).   The evidence is undisputed that he did.

If the legislature had intended that the court require the State to establish the underlying facts supporting the crime alleged, it could have stated that only a conviction after trial would suffice.   Yet the statute applies not only to where the facts have been established through a trial but where a conviction follows after a plea of guilty or nolo contendere.   Normally, a plea of nolo contendere may not be used against a defendant as an admission in a subsequent criminal or civil case.  Groton v. United Steelworkers of America, 254 Conn. 35, 49 (2000).

General Statutes § 1–110(3) defines “crime related to state or municipal office” as “any of the following criminal offenses committed by a person while serving as a public official or state or municipal employee:  (A) The committing, aiding or abetting of an embezzlement of public funds from the state, a municipality or a quasi-public agency;  (B) The committing, aiding or abetting of any felonious theft from the state, a municipality or a quasi-public agency;  (C) Bribery in connection with service as a public official or state or municipal employee;  or (D) The committing of any felony by such person who, wilfully and with the intent to defraud, realizes or obtains, or attempts to realize or obtain, a profit, gain or advantage for himself or herself or for some other person, through the use or attempted use of the power, rights, privileges or duties of his or her position as a public official or state or municipal employee.”   The State claims that the facts here come within subsections (A), (B) or (D).

Santorella pled guilty to one count of larceny in the First Degree in violation of General Statutes §§ 53a–119(6), 53a–121(b) and 53a–122(a)(4).  General Statutes § 53a–119(6) provides that:  “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.   Larceny includes, but is not limited to:  ․ (6) Defrauding of public community.   A person is guilty of defrauding a public community who (A) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false;  or (B) knowingly accepts the benefits from a claim he knows is false;  or (C) as an officer or agent of any public community, with intent to prejudice it, appropriates its property to the use of any person or draws any order upon its treasury or presents or aids in procuring to be allowed any fraudulent claim against such community.   For purposes of this subdivision such order or claim shall be deemed to be property.”   By its terms a violation of the statute involves the defrauding of a public community by drawing any order upon its treasury for a fraudulent claim.   Santorella pled guilty to larceny in the First Degree in violation of the statute.   Larceny in the First Degree is a felony.  General Statutes § 53a–122(c).  Consequently, from a review of the elements of the crime Santorella pled guilty to, it relates to state or municipal office within the meaning of General Statutes § 1–110(3) in that it involves embezzlement ¹ of public funds;  felonious theft from a municipality;  and the commission of a felony, with the intent to defraud, through the use of his position as a municipal employee;  all within the meaning of subsections (A), (B) or (C) of that statute.

Santorella also argues that there was no “loss” by the City in that the money may not have belonged to the City and that presents an issue of fact foreclosing the granting of summary judgment.   This claim is without merit.   In State v. Waterman, 7 Conn.App. 326, 337–38, cert. denied, 200 Conn. 807 (1986), the defendant was found guilty by a jury of the crime of larceny in the first degree, by defrauding a public community, in violation of General Statutes 53a–122(a)(4) and 53a–119(6)(3).   The fraud with which the defendant first selectman was charged involved the purchase and delivery of sand, from a company he formed, in connection with maintaining town roads.   The state claimed that the company the defendant created was a sham company to enrich the defendant at the town's expense.   Although the defendant denied that the company was a sham, he admitted that he had created false trip tickets, but asserted that no harm was done since the tickets he prepared corresponded to the amount of sand the town actually received.   The Court held that:  “Nothing in the plain language of § 53a–119(6)(3) supports the defendant's position that the legislature intended that actual prejudice be proven as a prerequisite for a conviction of the crime of defrauding a public community.  General Statutes § 53a–119(6)(3) sets forth three elements of the offense of defrauding a public community:  (1) the defendant must be an officer or agent of a public community;  (2) he must appropriate its property to the use of any person or draw any order upon its treasury or present or aid in procuring or allowing a fraudulent claim against such community;  and (3) he must do so with intent to prejudice the community.   The specificity with which the three elements of defrauding a public community are set forth “connotes the legislative intent to exclude that which is not specifically stated ․ Under that part of the statute involving the presentation or aiding in procuring or allowing a fraudulent claim, no actual loss by or prejudice to the town is required.   The gravamen of the offense in such a case is the presentation of, or the aiding in the procuring or allowance of, a fraudulent claim.   If the legislature had intended that prejudice to the community was a prerequisite to conviction, it would have said so.   It is a general rule of statutory construction that penal statutes are not to be extended by inference or implication.”  (Citations and internal quotation marks omitted.)

Santorella was also convicted of a violation of General Statutes § 53a–122(a)(4).   That statute provides that:  “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a–119, and:  ․ (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.”  “Defrauding a public community” is defined in General Statues § 53a–119(6), discussed above.   Therefore, once again, a review of the elements of the crime itself, reveals that Santorella, by pleading guilty to a violation of General Statues § 53a–122(a)(4), pled guilty to a “crime related to state or municipal office” within the meaning of General Statutes § 1–110(3).

For the reasons stated above, the motion for summary judgment is granted.

Jane S. Scholl

FOOTNOTES

FN1. General Statutes § 53a–119(1) states that “[a] person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.”.  FN1. General Statutes § 53a–119(1) states that “[a] person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.”

Scholl, Jane S., J.