Patrick T. McMahon v. City of Middletown et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANT CITY OF MIDDLETOWN'S MOTION TO DISMISS COUNT ONE (# 105)

On December 10, 2012, the plaintiff filed a three-count complaint against the city of Middletown ¹ and Eric P. Daigle.   On February 4, 2013, the defendant moved to dismiss count one on the ground that it is an appeal, pursuant to the defendant's applicable Personnel Rules, of the defendant's mayor's decision to terminate the plaintiff's employment and that the court lacks subject matter jurisdiction because those Personnel Rules cannot create jurisdiction of this court over such appeals.   The plaintiff submitted an opposing memorandum.   Oral argument was heard on May 6, 2013.

FACTS

In count one, the plaintiff alleges the following facts, which for present purposes are taken as true and construed in his favor.²  In October of 2007, the plaintiff was hired by the defendant as Deputy Chief of Police.   The plaintiff was a permanent employee of the defendant.   The plaintiff was not subject to discipline or termination without progressive discipline, due process and just cause.   From these allegations, the court finds that there was a contract of employment between the plaintiff and the defendant and that the rights in the preceding sentence arose from that contract.

In 2009, then-Mayor Sebastian Giuliano appointed the plaintiff as Acting Chief of Police for the city of Middletown.   While he was Acting Chief of Police, the plaintiff's permanent position remained Deputy Chief of Police.

Mayor Giuliano nominated the plaintiff to become permanent Chief of Police.   That nomination was blocked by a dispute between Mayor Giuliano and the Middletown Town Council.

As Acting Chief of Police, the plaintiff tried to manage the Middletown Police Department in a fiscally responsible manner.   In particular, he insisted that police officers provide adequate police protection to the public during regular shifts and opposed paying officers overtime pay for work that could and should be done during regular shifts.   These efforts were opposed by the police officers' union.

In the fall of 2011, Mayor Giuliano ran for re-election.   The plaintiff's status was a major issue in the election.   Mayor Giuliano wanted the continued support of the police officers' union to win re-election.   William McKenna was a Middletown police officer and a police officers' union member who was closely aligned with the union leadership and connected with a number of influential Middletown politicians and public figures, including some political opponents of Mayor Giuliano.   In April 2011, for political gain, Mayor Giuliano appointed McKenna Acting Deputy Chief of Police.   Mayor Giuliano did so over the plaintiff's objections.   McKenna did not have the minimum qualifications to be Deputy Chief.   McKenna coveted the position of Chief of Police and considered the plaintiff a roadblock to achieving that position.

On September 29, 2011, the plaintiff attended a gathering of firefighters and police officers at Mezzo Grille, a local bar in Middletown.   The plaintiff attended the event dressed in civilian clothes, without his department-issued badge or firearm.   He did, however, carry his personal firearm and a badge that he had purchased to identify him as a police officer.   The plaintiff purchased several alcoholic beverages for others at the bar but did not himself consume alcohol, to the best of his recollection.

On or about October 7, 2011, an “anonymous blog” was posted on The Middletown Press 's website suggesting that the plaintiff's presence at the bar on September 29 was illegal or improper.   Although McKenna believed the plaintiff had come close to violating applicable rules or regulations, McKenna knew that the plaintiff had not actually committed any violation.   Nevertheless, McKenna and police officers' union leaders went to Mayor Giuliano, accused the plaintiff of violating police department rules, and insisted that the mayor remove the plaintiff as Acting Chief.   The mayor was seeking the campaign endorsement of the police officers' union.   On October 17, 2011, Mayor Giuliano removed the plaintiff from his position of Acting Chief and put him on administrative leave of absence.   The mayor said that he needed the plaintiff gone until after the election.   For political gain, Mayor Giuliano then appointed McKenna as Acting Chief of Police.   McKenna did not then possess the minimum qualifications to be Acting Chief of Police.

On October 26, 2011, on McKenna's recommendation, the defendant retained Defendant Eric P. Daigle to conduct an investigation of the plaintiff.   McKenna was the real complainant with regard to Daigle's investigation.   The purpose of having Daigle investigate and write a report was to create a pretext for terminating the plaintiff from his employment, so McKenna could become Chief of Police.   McKenna instructed Daigle what to investigate.   McKenna told Daigle, in writing, “[You will] conduct a fair and unbiased investigation to determine if in fact, [sic] Patrick McMahon drank alcoholic beverages at local establishments while wearing an exposed Middletown Police issued Chief badge and firearm.   It is believed that he did in fact drink alcohol while wearing the badge and gun and then, in tum, withheld this information and was untruthful in his response to both his immediate supervisor, Mayor Sebastian Giuliano, as well as a large number of his subordinates during a Middletown Police Union meeting.”   McKenna also gave Daigle a list of “Facts of the case” suggesting the facts Daigle was expected to confirm.   McKenna was to be consulted if Daigle desired to interview anyone not listed by McKenna.   McKenna told Daigle whom to interview and in what order.

Daigle is a former Connecticut State Trooper, a lawyer, an investigator, and a longtime friend of McKenna.   Neither Daigle nor McKenna disclosed their friendship to the mayor, his administration, or the public.   Daigle pretended to be conducting an independent investigation, but kept McKenna abreast of all important developments and consulted McKenna repeatedly to determine the course of the investigation.

At the time of Daigle's investigation, the plaintiff had acknowledged that he had consumed alcohol in public restaurants (not bars) while out of uniform and carrying his personal badge and personal sidearm.   To do so was and is legal and permitted for police officers.   The plaintiff also acknowledged that, on one occasion, while off-duty, sitting at a table at a NAACP event with Mayor Giuliano, he consumed a glass of wine while wearing his police uniform.   The mayor had assured him that there was nothing wrong with doing so and that previous chiefs had done so.

On November 8, 2011 Mayor Giuliano was defeated in his re-election bid by Daniel T. Drew. The referendum to appoint the plaintiff permanent Police Chief failed.   Mayor Drew kept the plaintiff on administrative leave because the Middletown Democratic Party had long opposed the plaintiff.

On February 17, 2012, defendant Daigle issued his final report.   The date of the incident Daigle investigated was October 11, 2011—the blog post date—even though the allegation was limited to events at the Mezzo Grille on September 29, 2011.   Daigle admitted in the report that the impetus for his investigation was the anonymous blog that falsely ³ alleged McMahon was drinking at a bar while in uniform.   Daigle was unable to sustain the charge that the plaintiff had violated a rule concerning consumption of alcohol.   Daigle admitted that the only time McMahon consumed alcohol while in uniform was at the NAACP event, sitting at a table with Mayor Giuliano and that that conduct was completely acceptable.

Daigle found, however, the plaintiff had been untruthful to Mayor Giuliano and the defendant city's personnel director.   The plaintiff had not been untruthful to either Mayor Giuliano or the personnel director and neither of those officers of the defendant had accused the plaintiff of being untruthful.

Daigle found that the plaintiff had engaged in conduct unbecoming a police officer by carrying his personal firearm and personal badge off-duty at professionally-related social events and partaking of alcohol, albeit not to excess.

Daigle found the plaintiff had engaged in conduct unbecoming a police officer by honestly and appropriately ⁴ stating to police union members that he would not discipline subordinate police officers who engaged in the same lawful conduct in which he had engaged.

On February 17, 2012 Mayor Drew informed the plaintiff he would be allowed to resign as Deputy Chief of Police and, if he did, the defendant would not publicly release Daigle's report.   The plaintiff declined to resign.

On February 23, 2012, Mayor Drew held a hearing to determine whether there was just cause to terminate the plaintiff from his permanent position as Deputy Chief of Police.   At the hearing, no evidence was adduced to establish just cause.   Mayor Drew immediately terminated the plaintiff without giving a reason.

After the plaintiff's termination, McKenna was appointed permanent Chief of Police.

The plaintiff alleges that his termination was without just cause for eight reasons:  (1) the plaintiff was not forewarned of the consequences of the alleged misconduct;  (2) the plaintiff was terminated without a meaningful investigation into whether he violated an established rule or order;  (3) the plaintiff was terminated without a fair and objective investigation;  (4) the defendant's investigation did not prove that the plaintiff engaged in the alleged misconduct;  (5) the defendant did not apply its employment termination rules objectively to the plaintiff;  (6) the plaintiff's termination was not sufficiently related to the investigation and his employment record;  (7) the plaintiff was denied a full and fair hearing;  and (8) the plaintiff's conduct did not constitute just cause for termination.

The plaintiff claims lost salary and benefits from the date of his termination to the present.

DISCUSSION

“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.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).   A motion to dismiss is the appropriate means by which a claim of lack of subject matter jurisdiction may be raised.  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).   In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.   Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

In the present case, the defendant argues that the court lacks subject matter jurisdiction over count one of the plaintiff's complaint.   Specifically, the defendant argues that the Personnel Rules for Defined, Non–Bargaining Positions (“Personnel Rules”),⁵ which apply to the plaintiff's former position of Deputy Chief of Police, cannot create a right to appeal the mayor's decision to this court.   The plaintiff argues that this action is not an administrative appeal.⁶

Appeals from administrative officers or boards exist only under statutory authority, and, unless a statute provides for them, courts are without jurisdiction to entertain them.  Danziger v. Demolition Board of Stamford, 18 Conn.App. 40, 44, 556 A.2d 625, cert. denied, 211 Conn. 805, 559 A.2d 1139 (1989).   A municipal ordinance or policy is not a statute and, therefore, cannot create jurisdiction of state courts.  Id. In this case, the defendant's Personnel Rules cannot confer jurisdiction on this court to hear an appeal from the plaintiff's “separation.”   That conclusion does not mean that the plaintiff is without a judicial remedy.   See Danziger v. Demolition Board of Stamford, supra, 18 Conn.App. 46.   The plaintiff may still bring a plenary action against the defendant to obtain judicial review of its action.   Id. Unlike an administrative appeal, a plenary action is a suit or action that is independent of any other proceeding, and the merits of the case are fully inquired into and determined.   Durgin v. Madison, Superior Court, judicial district of New Haven, Docket No. CV 09 4032277 (January 28, 2010, Lager, J.).   If a close reading of the complaint indicates that the case is a plenary action, and it is properly pleaded as such, then the plaintiff is entitled to have his case heard.  Diaz v. Board of Directors of the 1967 Police Pension Fund of Danbury, 2 Conn.App. 43, 45–8, 476 A.2d 146 (1984).

Count one alleges that the defendant's mayor, Mayor Daniel Drew, held what was called a hearing under the Personnel Rules applicable to the plaintiff's employment to determine whether there was just cause to terminate the plaintiff from his permanent position as Deputy Police Chief.   At the hearing, no evidence was adduced to establish just cause.   A hearing to determine whether probable cause exists to terminate a public servant's employment must be a bona fide hearing.  Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545–6, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).   A finding of just cause must be supported by substantial evidence.  Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 562, 733 A.2d 197 (1999).   A finding of just cause for termination that is based on no evidence cannot stand.

The interpretation of pleadings is always a question of law for the court.   Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   Count one, considered in the light most favorable to the plaintiff, is not an appeal, administrative or otherwise.   Count one is a plenary action for breach of the plaintiff's employment contract with the defendant city.   The plaintiff essentially alleges that the defendant breached the explicit terms of the plaintiff's employment contract.   More specifically, count one adequately alleges that the defendant hired the plaintiff as Deputy Chief of Police, a permanent position with just cause protection from discipline and termination, and, while he was in that position, terminated his employment without just cause, to his loss.   That count one includes allegations that might be evidentiary in nature ⁷ affects neither its essence nor its sufficiency.   The title of count one, “Termination of Plaintiff's Employment Without Just Cause,” neither changes nor dilutes its essence.⁸  In particular, the title is no admission that count one is an appeal.

The basis for the defendant's motion—that count one is an appeal provided by section eleven of the defendant's Personnel Rules—is without merit.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss count one of the plaintiff's complaint is denied.

Leeland J. Cole–Chu

Judge

FOOTNOTES

FN1. The city of Middletown will hereinafter be referred to as “the defendant.”   Eric P. Daigle is not a party to this motion..  FN1. The city of Middletown will hereinafter be referred to as “the defendant.”   Eric P. Daigle is not a party to this motion.

FN2. “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009)..  FN2. “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

FN3. For present purposes, the allegations of the complaint are taken as true.  Conboy v. State, supra, 292 Conn. 651.   Count one alleges, at paragraph 33, “Daigle admitted in his report the impetus for the investigation was the anonymous blog that falsely alleged McMahon was drinking at a bar while in uniform.”   It is not clear whether the plaintiff is alleging Daigle's report admits the blog post made a false allegation or that the blog post made an allegation that the plaintiff claims was false.   The present ruling does not depend on which of those alternatives is intended..  FN3. For present purposes, the allegations of the complaint are taken as true.  Conboy v. State, supra, 292 Conn. 651.   Count one alleges, at paragraph 33, “Daigle admitted in his report the impetus for the investigation was the anonymous blog that falsely alleged McMahon was drinking at a bar while in uniform.”   It is not clear whether the plaintiff is alleging Daigle's report admits the blog post made a false allegation or that the blog post made an allegation that the plaintiff claims was false.   The present ruling does not depend on which of those alternatives is intended.

FN4. The plaintiff's allegation at paragraph 37 of count one is, “Daigle ‘found’ the plaintiff had engaged in ‘conduct unbecoming’ [a police officer] because he honestly and appropriately stated to police union members that he would not discipline subordinate police officers who engaged in the same lawful conduct in which he had engaged.”  (Bracketed phrase in original.)   The court's ruling does not depend on whether the plaintiff is alleging that Daigle found the plaintiff had “honestly and appropriately” made this statement or that Daigle found he made the statement which the plaintiff claims was honest and appropriate.   See note 3..  FN4. The plaintiff's allegation at paragraph 37 of count one is, “Daigle ‘found’ the plaintiff had engaged in ‘conduct unbecoming’ [a police officer] because he honestly and appropriately stated to police union members that he would not discipline subordinate police officers who engaged in the same lawful conduct in which he had engaged.”  (Bracketed phrase in original.)   The court's ruling does not depend on whether the plaintiff is alleging that Daigle found the plaintiff had “honestly and appropriately” made this statement or that Daigle found he made the statement which the plaintiff claims was honest and appropriate.   See note 3.

FN5. The Personnel Rules are an exhibit to the defendant's memorandum of law.   Section eleven of the Personnel Rules provides in relevant part:  “Any employee separated for ‘Just Cause’ is entitled to appeal their separation through the American Arbitration Association (AAA) or Superior Court ․ In the event that the employee agrees to proceed in such manner, an employee separated for ‘Just Cause’ may request a hearing before the Common Council on the separation.   The exercise of this option shall not bar the employee's right to further appeal the matter to AAA or Superior Court.”.  FN5. The Personnel Rules are an exhibit to the defendant's memorandum of law.   Section eleven of the Personnel Rules provides in relevant part:  “Any employee separated for ‘Just Cause’ is entitled to appeal their separation through the American Arbitration Association (AAA) or Superior Court ․ In the event that the employee agrees to proceed in such manner, an employee separated for ‘Just Cause’ may request a hearing before the Common Council on the separation.   The exercise of this option shall not bar the employee's right to further appeal the matter to AAA or Superior Court.”

FN6. In his memorandum of law, the plaintiff states that he attempted to have his termination overturned by the defendant's Common Council, its legislative body, but this effort failed due to the council's failure to muster a quorum.   Even if these allegations were included in count one, they would not change the nature of count one as a breach of contract case or affect this ruling..  FN6. In his memorandum of law, the plaintiff states that he attempted to have his termination overturned by the defendant's Common Council, its legislative body, but this effort failed due to the council's failure to muster a quorum.   Even if these allegations were included in count one, they would not change the nature of count one as a breach of contract case or affect this ruling.

FN7. See Practice Book § 10–1:  “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved ․”.  FN7. See Practice Book § 10–1:  “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved ․”

FN8. Count two of the plaintiff's complaint also alleges breach of contract.   Whereas the allegations in count one give rise to a cause of action for breach of an express term of the employment contract, count two alleges a breach of the implied term of the covenant of good faith and fair dealing..  FN8. Count two of the plaintiff's complaint also alleges breach of contract.   Whereas the allegations in count one give rise to a cause of action for breach of an express term of the employment contract, count two alleges a breach of the implied term of the covenant of good faith and fair dealing.

Cole–Chu, Leeland J., J.