Jules Awdziewicz et al. v. City of Meriden et al. (2014)

AMENDED MEMORANDUM OF DECISION ¹

This case, Awdziewicz v. Meriden, docket number CV–07–4014676–S, began in 2007, when the plaintiffs filed this action that raises issues analogous to those raised in an action commenced in 2005, namely, Kiewlen v. Meriden, docket number CV–05–4014677–S.²  The operative complaint in the Awdziewicz file is dated April 24, 2007.

The plaintiffs in this case are retired Meriden police and fire department employees who allege that the defendant, the city of Meriden, has been miscalculating their pension benefits.   In count one, the plaintiffs seek an order of mandamus.   In count two, they allege breach of contract and breach of the implied covenant of good faith and fair dealing claims based upon the language of two special acts and a stipulated judgment, which will be set forth below.   In count three, they allege a violation of a stipulated judgment.   In count four, they allege a violation of due process under the constitution of Connecticut, and in count five, they allege violations of 42 U.S.C. §§ 1983 and 1985 for violation equal protection and due process under the fourteenth amendment of the United States constitution.   Central to each of the plaintiffs' claims is the argument that the defendant has misconstrued the special acts and stipulated judgment that govern the defendant's pension plan.

The defendant denied the allegations and also raised as special defenses the doctrine of laches and statutes of limitations pursuant to General Statutes §§ 52–576 and 52–577.   The defendant also contends that the plaintiffs have now made claims that were not pleaded in their complaints.³

Both cases were tried together to court on October 19, 2011, October 26, 2011, and December 16, 2011.   The parties thereafter submitted briefs, the last of which was received by this court on September 7, 2012.

At the trial, the parties stipulated that any collective bargain agreements entered into since 1993 through the time of the hearing have either recited or incorporated by reference the following Special Acts:  25 Spec. Acts 977, No. 229, § 2 (1949) and 26 Spec. Acts 947, No. 340 (1953) (§ 85D–Old Charter), which set forth the pension rate for retirees.

Section 85D provides, in relevant part, as follows:  “The rate of pension of any retired fireman or policeman shall be one-half of the prevailing rate of pay for the rank he has attained and holds at the time of retirement.   Prevailing rate of pay means the annual pay as fixed from time to time by the board of public safety, and in addition thereto shall include such cost-of-living bonus or other emolument as may be granted to the active members of the fire and police departments by the board of apportionment and taxation.” ⁴  (Emphasis added.)

The court accepts that stipulation.   The court also accepts the parties' stipulation that none of those bargaining agreements have either recited or incorporated by reference a 1982 stipulated judgment between the defendant and the Meriden Retired Police and Firefighter's Association.⁵  The stipulated judgment provides in relevant part:  “Group Insurance Benefits to Retired Policemen.   Each ․ member who is a retired policeman ․ shall have the option to have himself and his dependents become participants under such policy or policies of group health insurance, group dental insurance and group life insurance as are provided by [the defendant] to active policemen and their dependents.”  (Emphasis added.)

There is an identical section that pertains to retired firemen.   The stipulated judgment further provides that “[t]he amount of group insurance to be paid by [the defendant] on behalf of each participating retired policeman and fireman is as follows ․” (Emphasis added.)   The judgment then lists what is to happen during the subsequent years of “participation” and provides:  “iii) For the Third year and all subsequent years of participation, an amount equal to one-half (1/2) of the total premium attributable to the participation of each retired policeman and fireman and his respective departments.”   (Emphasis added.)

The court finds that all of the plaintiffs in this case are either retired Meriden police officers or fire fighters.   The court also finds the defendant's witnesses to be credible.

The court further finds that since at least 1983, the defendant has paid its pension benefits in the following manner.   For all police and fire personnel and retirees, the defendant maintains records as to each one's rate of pay, emoluments, deductions for taxes and insurance.   The records for the health insurance emolument are further categorized as “SINGLE,” “MEMBER + 1,” and “FAMILY.”   Each of these categories, in turn, has subcategories of “WORKING,” (an active employee), “RETIREE,” and “WIDOW.”   The amount of the health insurance emolument for a retiree is one-half of the amount to insure an active employee in an equivalent position.

From June 1, 1982 until 1989, the defendant insured its liability for health insurance costs for active employees and retirees with a private insurance carrier.   As of 1989, the defendant became self-insured in this regard and now bases the amount of the health insurance emolument on the cost of health insurance for active employees, which it obtains from its insurance administrator.   It is undisputed that the defendant does not have a separate health plan for retirees;  rather, such retirees participate in the same plan as active employees.   The value of this emolument for retired employees is being able to participate in the health plan of active employees or in receiving a portion of the money that the defendant pays to provide the health plan benefit for active employees.   Thus, according to the finance department, as the cost of providing health insurance for active employees increased, so too the cost of the emolument paid to retirees increased in proportion.   The defendant has always calculated the health insurance emolument at the time of the issuance of a pension check, rather than at the time of the retirement.

In 1999, as the result of a collective bargaining agreement between active firemen and policemen and the defendant, a cost share for health insurance was imposed upon active firemen and policemen hired after July 1, 1999.   Subsequently, this cost share for health insurance was imposed upon all active firemen and policemen as of July 1, 2002.   Thereafter, the defendant recalculated the health insurance emolument for retirees because a cost share was now being paid by all active employees.⁶  This was accomplished as follows:  each year the defendant's finance department would receive the monthly rates for active employees from its insurance administrator.   The finance department would use these rates to determine the amount of the health insurance emolument for all retirees.   Following the imposition of the cost share, the cost to the defendant's health insurance coverage to active employees was reduced because of the cost share that the employees were now paying.   Consequently, the emoluments were recalculated effective to July 5, 2005 to reflect this lower cost.

The plaintiffs argue that because there is no mention of a “cost share” in either Special Act, § 85D, its legislative history, or the stipulated judgment, it should not be applied to the retirees.   They contend that the “[s]tipulated [j]udgment can only be interpreted to mean the actual premium cost or inherent value of the insurance product in and of itself.”   They further contend that the cost share cannot be imposed upon them by the collective bargaining agreement because they were never included in the collective bargaining process.

The defendant contends that the plaintiffs' argument is flawed because it ignores the language of § 85D, which provides that the “[p]revailing rate of pay means the annual pay ․ and ․ other emolument as may be granted to active members of the ․ departments.”  (Emphasis added.)   The defendant argues that the “evidence is undisputed that the health insurance emolument for retirees is indexed to the cost of health insurance coverage for active employees, which is precisely what the Special Act mandates.”

“The principles that govern statutory construction are well established.   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, including the question of whether the language actually does apply ․ 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 ․ When a statute is not plain and unambiguous, we also look for interpretative guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)  Francis v. Fonfara, 303 Conn. 292, 297, 33 A.3d 185 (2012).  “We must interpret the statute so that it does not lead to absurd or unworkable results.”  State v. Drupals, 306 Conn. 149, 165, 49 A.3d 962 (2012);  see also State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010) (“[I]t is axiomatic that those who promulgate statutes ․ do not intend to promulgate statutes ․ that lead to absurd consequences or bizarre results” [internal quotation marks omitted] ).

This court begins its analysis by noting that the references in both § 85D and the stipulated judgment to “active” members plainly refers to those employees who have not yet retired.  “Active” is defined as follows:  “That is in action ․ actually subsisting;  the opposite of passive.”   Black's Law Dictionary (5th Ed.1979).   Indeed, to be active they must be “participants.”   A “participant” is defined as “one that participates:  one that takes part or shares in something with others ․” Webster's Third New International Dictionary (1961).   Thus the plain language of both § 85D and the stipulated judgment index the health insurance emolument to the cost of health insurance for firemen and policemen actively working.   Inasmuch as the defendant's cost for the health insurance emolument is decreased by the share cost of its active employees, the plain language of the stipulation and § 85D mandate that the one-half of the emolument allotted to retires must also be reduced in proportion.   It is clear to this court, moreover, that the defendant's finance department follows a procedure that implements the plain language of the stipulation and § 85D.

Contrary to the plaintiffs' arguments, this court finds nothing in the plain language of § 85D that prohibits such a construction.   Indeed, if the statute had intended the emolument to be frozen at the time of a retirement it could have so stated but it did not.   Further, the use of the term “active” evinces an intent to tie the cost health insurance emolument to present times rather than to the past.   See, supra, footnote 4. Indeed, the plaintiffs' construction would create a scenario whereby, in essence, the defendant would be awarding a health insurance emolument to retirees that is larger, if doubled, than the one allotted active employees.   Such a construction, which would award the plaintiffs greater than one-half of the emolument, directly contradicts the plain language of § 85D and the stipulated judgment, which declares the retirees are entitled only to one-half of the emolument.   Therefore, the court rejects the plaintiffs' construction of the pension acts and agrees with the defendant's construction.   The court also finds that the defendant has operated the pension plan properly and in accordance with the plain language of the Special Acts and the stipulated judgment.

This court also agrees with the defendant that the plaintiffs did not plead a violation of General Statutes § 7–450c or claims under the collective bargaining agreements and therefore cannot recover on those grounds.   See O'Brien v. Coburn, 39 Conn.App. 143, 147–49, 664 A.2d 312 (1995).   The plaintiffs have also failed to brief the issue of a breach of the covenant of good fair dealing and therefore this court considers the claim to be abandoned.   See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (“Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned” [internal quotation marks omitted] );  Connecticut National Bank v. Giacomi, 242 Conn. 17, 44–45, 699 A.2d 101 (1997) (“[The court] is not required to review issues that have been improperly presented ․ through an inadequate brief”).

Based upon the foregoing, this court enters judgment on the allegations of the plaintiffs' complaint as follows.

As to Count One

“The plaintiff in an action for a writ of mandamus bears the burden of proving the deprivation of a clear legal right that warrants imposition of such an extraordinary remedy.”  (Internal quotation marks omitted.)  Honan v. Greene, 37 Conn.App. 137, 143, 655 A.2d 274 (1995).   The court finds that the plaintiffs are not entitled to a writ of mandamus because they have not established that they have clear legal right to have the health insurance emolument “frozen” at the time of retirement.   Judgment for the defendant will enter on this count.

As to Count Two

The plaintiffs claim that the Special Acts, in conjunction with the stipulated judgment, past collective bargaining agreements, past practices of the defendant from 1982 to 2005, and § 7–450c, form a contract which the defendant has breached by imposing a “cost share” component to the health insurance emolument.   In an action for breach of contract, the court must determine the intent of the parties from the plain language of the contract.   See Kronholm v. Kronholm, 16 Conn.App. 124, 130–31, 547 A.2d 61 (1988).   As stated previously, this court has determined that the defendant has been interpreting the language of the Special Acts and the stipulated judgment correctly.   Therefore, the plaintiffs have not established that there has been a breach of contract, or that there has been a breach of the covenant of good faith and fair dealing.  Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007) (“To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith” [internal quotation marks omitted] ).   Judgment for the defendant will enter on this count.

As to Count Three

The plaintiff's allegation that there has been a breach of the stipulated judgment fails for the same reasons noted by the court in addressing their claims in count two.   Judgment for the defendant will enter on this count.

As to Count Four

The plaintiffs claim that after the 1982 stipulated judgment, the defendant took unilateral action in interpreting and administering the pension benefits which violated their due process rights under the Connecticut constitution by depriving them of “notice and an opportunity to be heard.”

The plaintiffs, however, have failed to present any independent analysis under state constitutional grounds and therefore the court will not consider such claims.   See State v. Genotto, 220 Conn. 796, 811–12, 601 A.2d 1013 (1992).   The plaintiffs cannot prevail on their claim under the federal constitution inasmuch as the court has found that the defendant has correctly interpreted the language at issue and properly administered the pension benefits.   Moreover, claims of a contractual breach do not rise to the level of constitutional infringement.   See Costello v. Fairfield, 811 F.2d 782 (2d Cir.1987);  A. Aiudi & Sons v. Plainville, 862 F.Sup. 737 (D.Conn.1994).   Accordingly, judgment for the defendant will enter on this count.

As to Count Five

In order to prevail upon their equal protection claim, the plaintiffs must demonstrate that the defendant “is affording different treatment to similarly situated groups of individuals.”  Pham v. Starkowski, 300 Conn. 412, 430, 16 A.3d 635 (2011).   Moreover, an equal protection claim is cognizable only if the governmental action implicates a fundamental right or an inherently suspect classification.   See Shuchman v. State Employees Retirement Commission, 1 Conn.App. 454, 461, 472 A.2d 1290 (1984).   No such right or classification is present here.   At most, the plaintiffs point to the difference between themselves and an earlier group of retirees.   This does rise to the level required.   See id.   There is no discussion of 42 U.S.C. §§ 1983 and 1985 except for a conclusory claim for damages and attorney fees thereunder.   Accordingly, this court will not address such issues.   See Connecticut National Bank v. Giacomi, 242 Conn. 44–45.   As noted, this court has found that the defendant has followed the same practices in all pension cases administered under § 85D and the stipulated judgment, and therefore the plaintiffs cannot prevail because they have not demonstrated that they have been treated differently for other similarly situated individuals.   Additionally, inasmuch as the court finds that the defendant has properly administered the pension plan consistent with the plain language of the Special Acts and stipulated judgment, there has been no violation of due process.

Accordingly, judgment for the defendant will enter on this count.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. In its original memorandum of decision, this court stated that the claims and issues in Kiewlen v. Meriden, docket number CV–05–4014677, and Awdziewicz v. Meriden, docket number CV–07–4014676, were identical and issued virtually the same memorandum for each case;  however, this was an error.   After the court issued its decisions, the defendant filed an appeal to the Appellate Court.   During the pendency of the appeal both parties filed a joint motion asking that the Awdziewicz case be remanded to this court in order for it to address issues that had been heard but not ruled upon.   By order dated July 24, 2013, the Appellate Court granted the motion and a hearing and the issue was held on November 14, 2013.   This court recognizes and apologizes for its error and now issues this amended memorandum..  FN1. In its original memorandum of decision, this court stated that the claims and issues in Kiewlen v. Meriden, docket number CV–05–4014677, and Awdziewicz v. Meriden, docket number CV–07–4014676, were identical and issued virtually the same memorandum for each case;  however, this was an error.   After the court issued its decisions, the defendant filed an appeal to the Appellate Court.   During the pendency of the appeal both parties filed a joint motion asking that the Awdziewicz case be remanded to this court in order for it to address issues that had been heard but not ruled upon.   By order dated July 24, 2013, the Appellate Court granted the motion and a hearing and the issue was held on November 14, 2013.   This court recognizes and apologizes for its error and now issues this amended memorandum.

FN2. The Kiewlen plaintiffs, who began this action, filed a motion for certification of a class action, but apparently that motion was either denied or not acted upon;  the court's file is unclear on this point..  FN2. The Kiewlen plaintiffs, who began this action, filed a motion for certification of a class action, but apparently that motion was either denied or not acted upon;  the court's file is unclear on this point.

FN3. Speciflcally, the defendant claims that the plaintiffs did not allege in their complaints that they were entitled to health insurance emoluments in accordance with collective bargaining agreement, or that the defendant had violated General Statutes § 7–450c.   The defendant also claims that the plaintiffs have not briefed the issue of the breach of the covenant of good faith and fair dealing and therefore argues that any such claim should be deemed abandoned..  FN3. Speciflcally, the defendant claims that the plaintiffs did not allege in their complaints that they were entitled to health insurance emoluments in accordance with collective bargaining agreement, or that the defendant had violated General Statutes § 7–450c.   The defendant also claims that the plaintiffs have not briefed the issue of the breach of the covenant of good faith and fair dealing and therefore argues that any such claim should be deemed abandoned.

FN4. Black's Law Dictionary (5th Ed.1979) defines “active” as follows:  “That is in action ․ actually subsisting;  the opposite of passive.   An active debt is one which draws interest.   An active trust is a confidence connected with a duty.   An active use is a present legal estate.”   (Emphasis added.)Black's Law Dictionary (9th Ed.2009) defines “emolument” as follows:  “Any advantage, profit, or gain received as a result of one's employment or one's holding of office.”.  FN4. Black's Law Dictionary (5th Ed.1979) defines “active” as follows:  “That is in action ․ actually subsisting;  the opposite of passive.   An active debt is one which draws interest.   An active trust is a confidence connected with a duty.   An active use is a present legal estate.”   (Emphasis added.)Black's Law Dictionary (9th Ed.2009) defines “emolument” as follows:  “Any advantage, profit, or gain received as a result of one's employment or one's holding of office.”

FN5. A copy of that stipulation is attached hereto as “Attachment A.”.  FN5. A copy of that stipulation is attached hereto as “Attachment A.”

FN6. The plaintiffs assert that the cost share was originally 6 percent but had grown to 10 percent by the time of trial..  FN6. The plaintiffs assert that the cost share was originally 6 percent but had grown to 10 percent by the time of trial.

Fischer, Jack W., J.