Eric Fine v. Town of Westport et al. (2014)

MEMORANDUM OF DECISION re MOTIONS FOR SUMMARY JUDGMENT (# 125.00 AND # 136.00)

Nature of the Proceeding

This is an action focusing on the pension benefits plaintiff claims he is entitled to receive, as a result of his promotion into the then-newly created position of Chief Technical Specialist in the Westport Fire Department.   Plaintiff had been a long-term employee in the department, and therefore had been a member of the union representing paid firefighters (Westport Firefighters' Local 1081, International Association of Firefighters, AFL–CIO.   Local 1081—hereafter “Union”).   As a member, he was (would be) entitled to pension benefits upon retirement under the plan applicable to firefighters.   His new position was not subject to the collective bargaining agreement for firefighters, and the varying claims of the parties all center on his contention that he is entitled to pension benefits under the firefighters' pension plan, based on his promotional position, despite the undisputed fact that his position at the time of retirement was not a union position.   His claim is that he was assured—it was part of the contract he claims existed—that he would continue to be covered by the plan.  (Not in dispute is his entitlement to pension benefits predicated on his earlier employment while in a union position.)

For purposes of this motion, the court adopts the recitation of facts utilized by the U.S. District Court in an earlier phase of this dispute:

The Town has a pension fund established in accordance with an agreement under state law between the Town and Union (“Fund Plan”) for the benefit of the employees of the Town Fire Department.

The Union represents the uniformed and investigatory employees of the Westport Fire Department.

The Pension Board is responsible for carrying out the Fund Plan and managing the pension fund.   According to Section 9.8 of the Fund Plan, the Pension Board has the exclusive right to interpret the Fund Plan and to decide any matter in connection with its administration.   Section 12.5 of the Fund Plan states:  “The determination of the Pension Board as to the identity of the proper payee of any benefit under the Plan and the amount of such benefit properly payable shall be conclusive ․”

From 1982 through 2005, plaintiff worked as a firefighter and technical specialist for the Westport Fire Department.   From 2005 through June 2007, plaintiff served as the project manager and technical specialist for the implementation of a public radio communication system replacement and upgrade project for Westport.   He continued to be employed by the Town Fire Department at this time.

From 1982 through June 2007, plaintiff was a member of the Union and participated in the pension fund for members of the Town Fire Department.   During that time, plaintiff contributed a portion of his wages exceeding $98,190.

On July 2, 2007, plaintiff commenced a newly-created “exempt” non-Union position entitled Chief Specialist.   In accepting this position, plaintiff understood that he would continue to be an employee of the Town Fire Department, would have firefighting duties and would participate in the pension fund.1  Plaintiff served as the Chief Specialist for the Town Fire Department until March 31, 2008.   During that time, he made contributions to the pension fund.

On March 11, 2008, plaintiff notified the Chief of the Fire Department, Christopher Ackley, that he intended to retire effective April 1, 2008.   On March 13, 2008, Gary Marks, President of the Union, opposed plaintiff's receipt of pension payments that included the period that plaintiff served as Chief Specialist on the basis that plaintiff was not a firefighter employee of the Fire Department during that time.   However, the Pension Board voted to award plaintiff a pension that included his nine months of service as Chief Specialist.

By letter, the Town confirmed that the Pension Board had approved plaintiff's retirement request and that he would receive a monthly pension of $2,768.85 until he reached the age of 49, after which time it would increase to twice that amount.   In another letter, the Town confirmed that plaintiff would receive $5,537.70 per month as a result of reaching the age 49.

On April 21, 2008, Marks and the Union filed a grievance challenging plaintiff's receipt of a pension.   The grievance was denied.   On June 17, 2008, Marks and the Union brought a grievance to the State Board of Mediation and Arbitration.   Plaintiff was advised that he was not a party to the arbitration of this grievance.

On February 9, 2010, an arbitration panel ruled that the Town should “reform” plaintiff's pension to exclude the period after his appointment as Chief Specialist.   The arbitration panel also noted that plaintiff was entitled to the return of his contributions made during the time that he served in the nonfirefighting position.

The Town did not appeal this ruling.   On September 20, 2010, the Pension Board held a meeting to consider its responsive action to the ruling.   Plaintiff attended the meeting and expressed his concern that reform of his pension would violate his due process rights because he had not been represented in the arbitration process.

The Pension Board voted to provide plaintiff pension benefits that did not include his service as Chief Specialist.   Effective November 1, 2010, plaintiff's monthly pension was reduced from $5,642.92 to $3,534.54.

Fine v. Westport, No. 3:10–cv–1785 (WWE) (U.S.D.C. Conn., June 13, 2011).

(The estimated present value of the incremental pension benefits to which plaintiff claims he is entitled, based on approximately 9 months of service in his new position, is in the area of $800,000.)

There are three “categories” of parties—two sets of defendants and the plaintiff.   One set of defendants is comprised of the Town of Westport and the Westport Fire Pension Board (hereafter referred to as “Pension Board”);  the other is comprised of the Union and certain individuals formerly holding office with the Union and/or positions on the Pension Board (as Union-designated members).   There are four pending motions/cross motions for summary judgment—each defendant group has filed a motion for summary judgment against the plaintiff, and the plaintiff has filed a cross motion in each instance.   This memorandum of decision only addresses the motions by and against the Town defendants.

The operative complaint is plaintiff's revised complaint (# 104.00).   The first count asserts a claim of breach of the (implied ² ) employment contract, against the Town of Westport;  the fourth count ³ asserts a breach of contract claim (based on the pension plan) against all institutional defendants;  the fifth count asserts a breach of the covenant of good faith and fair dealing relating to the pension plan/fund, against the Union (see footnote 1);  and the sixth count asserts tortious interference with contractual rights, against the Union and its officials.

The Westport defendants have moved for summary judgment claiming that

summary judgment is warranted because:  1) plaintiff's claims are barred by the Fennell doctrine;  2) the Pension Board is not a proper defendant;  3) Plaintiff cannot obtain judicial review of a final binding arbitration decision;  4) Plaintiff cannot appeal the final decision of the Pension Board;  5) even if Plaintiff can prove formation of a valid contract, performance by the Defendants is precluded by impossibility and illegality;  and 6) the award of additional pension benefits to plaintiff would violate the Connecticut State Constitution prohibition against public emoluments.

In apparent response to plaintiff's arguments that many of defendants' contentions were outside the scope of the pleadings, the Westport defendants filed a request to amend, seeking to modify their answer and special defenses (# 154.00).   That elicited an objection (# 155.00) which in turn, generated an order from the court, Jennings, J. (# 155.86), recognizing that certain special defenses proposed by the Westport defendants seemingly raised jurisdictional issues that needed to be addressed before considering anything further.⁴  The court, Jennings, J., vacated that order (# 155.87), based on the representations of counsel that the issues raised in the special defenses had been addressed during the course of argument on the summary judgment motions before the undersigned.

Subject matter jurisdictional issues need to be addressed whenever and however raised.

[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.  Honan v. Dimyan, 85 Conn.App. 66, 69 (2004).

It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged ․ Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728 (2013).

At the outset, then, the court must identify the subject matter jurisdictional issues before it, and resolve them, before continuing to address anything else in the case (the substantive issues identified in the pending motions).

Legal Standards

The law governing summary judgment and the accompanying standard of review are well settled.   Practice Book § [17–49] requires that 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.   A material fact is a fact that will make a difference in the result of the case ․ The facts at issue are those alleged in the pleadings ․

In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․

The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ․ The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ․ To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.

[T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred ․ Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue ․ Such assertions are insufficient regardless of whether they are contained in a complaint or a brief ․ Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact ․

Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ․ a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.   Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.   Requiring the nonmovant to produce such evidence does not shift the burden of proof.   Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial.  ( [I]ndeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists.)  Walker v. Dept. of Children & Families, 146 Conn.App. 863, 869–71 (2013) (citations and internal quotation marks, omitted;  ellipses as in cited case).

Discussion

Jurisdictional issues

The jurisdictional issues that have been raised by defendants, and were identified by Judge Jennings, relate to both remaining counts directed to the Westport defendants:  the third special defense as to the first and fourth counts states that “[t]he Court is without subject matter jurisdiction to review the [SBMA ⁵ ] arbitration award per Conn. Gen.Stat. § 52–418” and the fourth special defense as to those counts alleges that “[t]he Court is without subject matter jurisdiction to review the defendant Pension Board's decision and/or the Pension Board's decision is not subject to appeal because there is no statutory authority that provides for the same” (relying on Danziger v. Demolition Board of City of Stamford, 18 Conn.App. 40, 44 (1989)).

The court believes that the jurisdictional implications of the third and fourth special defenses are mostly illusory, particularly in the context of this motion for summary judgment.   The court does not read the complaint as invoking § 52–418 (which relates to vacating arbitration awards).   The court is not being asked to “review” the decision in an impermissible sense, i.e. determine its validity, but rather is being asked to review the decision in the same manner that it might be asked to review any document or decision before it—analyze the document and determine the extent to which it is applicable to this case.   In that sense, it is no different than the court's “review” of the pension plan documents or the Westport Charter, to the extent that those documents are before the court.

With respect to the fourth special defense, plaintiff does not appear to be asking the court for appellate review of the Pension Board decision, in the sense of an administrative appeal.   In this regard, the court finds defendants' invocation of the Danziger decision to border on the ironic—while defendants cite to page 44 of that decision, at page 46, the court referred to Diaz v. Board of Directors, 2 Conn.App. 43 (1984), specifically stating that “in Diaz, we held that the trial court had subject matter jurisdiction over the plaintiff's plenary action for an injunction and other relief ․ challenging the order of the board of directors of the municipal pension fund, in the absence of a statutory right to an administrative appeal from that order.”   Indeed, the very next sentence is directly applicable here:  “The plaintiffs in this case have similar avenues of recourse.”

Unlike Danziger, where the plaintiff formulated his legal action as an administrative appeal, plaintiff here has taken an approach seemingly more consistent with Diaz. This is not an action against the Pension Board seeking appellate review of the decision, but rather plaintiff is seeking reinstatement of the pension benefit to which he claims he is entitled—essentially an injunctive form of relief—as well as damages, with the Town the primary target in this regard.

As to both special defenses, the alternate perspective is that to the extent plaintiff may be perceived as possibly treading into forbidden areas, the court simply can and will decline to go there—the court will not provide any relief overstepping jurisdictional limitations.

The court cannot dismiss the first and fourth counts based on the special defenses being discussed—at most, they force the court to recognize that plaintiff's claims are subject to certain limitations with jurisdictional implications.   To put it differently:  the court has jurisdiction to entertain the claims alleged in the first and fourth counts, but must be cognizant of potential limitations on the scope of those counts.

Accordingly, the court finds there to be no jurisdictional impediments to proceeding to address the merits of the motions (or the case in general, to the extent it survives this motion).

Non-Fennell Issues

The foregoing provides an appropriate segue to certain more generalized comments about defendants' motion and plaintiff's response (and cross motion).   In general, the parties fail to distinguish between evidence sufficient to permit a particular result, and evidence that mandates a certain result.   For example, when the Westport defendants contend that they are entitled to judgment based on a constitutional argument (prohibited emolument), even assuming that their contention has any merit, they fail to explain adequately (if at all) why the court would be required to find a constitutional violation, rather than simply permitting such a finding.   Summary judgment, of course, only would be appropriate if the undisputed evidence mandated a singular outcome.   Similarly, defendants would not be entitled to judgment on the employment contract claim, as a matter of law, simply by prevailing on their contention that the court cannot “review” the arbitration award, even assuming that that is what plaintiff is attempting to do—nonreviewability of the arbitration award does not necessarily compel any particular result as to the employment count.

That, in turn, provides an appropriate segue to yet another pervasive problem.   Defendants, especially, fail to differentiate between the claims being challenged—they seem to take the position that each and every one of their defenses is equally applicable to both the first and fourth counts, at least to the extent that they identify both counts as being subject to essentially all of their defenses.  (The sole exception is that their claim that the Pension Board is not a party that can be sued properly is limited to the fourth count, as the first count is not specifically directed to the Pension Board.)   Again, while the arbitration award at least plausibly plays a role in the pension contract claim, it would appear to play at most a minimal evidentiary role with respect to the employment contract claim of the first count.   Nonetheless, defendants contend that that defense entitles them to judgment, as a matter of law, as to both counts.

Having addressed the jurisdictional implications of two of the special defenses, the court believes that non-Fennell claimed bases for summary judgment (quoted above) can be addressed relatively summarily.   Summary judgment grounds 3 and 4 are essentially the “jurisdictional” issues already discussed—as noted, at most, they identify possible limitations on the scope of what the court can do, but are not bases for judgment on any or all counts directed to the Westport defendants.   Again, the court is not being asked to change or invalidate the arbitration decision but rather is being asked to consider the extent, if any, to which it is applicable to plaintiff.   In this regard, the Town's position was especially mercurial.   At argument, the town seemed to be arguing that it disagreed with the SBMA award and that it was essentially not arguing that town officials did not have authority to include plaintiff in the firefighter pension plan;  but that if the SBMA award were valid and enforceable, such that plaintiff could not be in the plan, then town officials did not have authority to commit the town to provide such benefits.

Similarly, the court is not being asked to render appellate review of the Pension Board decision.   To the extent that plaintiff may argue in ways that seem to approach those off-limit areas, the court will avoid any temptation presented.

To put matters into a somewhat more formalistic posture:  accepting the validity of the special defense relating to invalidation of the arbitration award would not necessarily entitle defendants to judgment on any count.   Likewise, accepting the validity of the special defense relating to the unavailability of appellate review of the Pension Board decision would not necessarily entitle defendants to judgment on any count.   Indeed, keeping in mind the court's prior discussion of the Danziger and Diaz cases, defendants do not address much less establish definitively that the Diaz approach, involving a permissible plenary action, is not and cannot be pursued by plaintiff, under his complaint, given the allegations and facts before the court.

Defendants claim that this lawsuit implicates the constitutional prohibition against public emoluments.⁶  At page 22 of their brief, defendants state that “the Town has no authority to create an extra-contractual responsibility outside of the union agreement.   Such a special pension agreement would constitute an unconstitutional public emolument, and Plaintiff can point to no legitimate public purpose to validate the Town's payment of pension benefits to the plaintiff for the time he served as Chief Technical Specialist.”

The issue is not whether defendants can frame the dispute in a manner favorable to their position.   Defendants provide no reasoned argument as to how or why a compensation package being offered to an individual, in a situation such as this, necessarily violates the constitutional prohibition.   There is evidence before the court that other public officials (non-union members of the Fire Department, at the upper ranks) also have pension benefits tied to or based on (if not actually in) the fire pension fund.   Undoubtedly there are numerous Town employees who are not in unions, who have a singular position (especially, heads of various departments), and presumably defendants do not claim that aspects of the compensation package for each or every one of those individuals is subject to review under the constitutional prohibition against public emoluments, simply because there may be some unique aspect of the compensation package being provided.   Defendants may well believe that it is improper, from a contractual perspective, to “piggyback” a nonunion member's pension rights onto a union pension plan, but there is no explanation of how an actual or possible contractual violation is transformed into a constitutional violation.   Defendants do not discuss much less establish a standard for determining when and if an aspect of a compensation package, offered to a prospective employee, necessarily violates the constitutional prohibition, and in the absence of certitude as to the violation of the constitutional prohibition, defendants are not entitled to summary judgment.

To put it differently:  the Town appears to be conflating the issue of contractual limitations on the ability to give a particular contractual benefit with the notion of a constitutional prohibition on public emoluments—the fact that a Union contract may prohibit a particular form of benefit does not mean that the benefit itself is unconstitutional if given to a non-union member without regard to such a prohibition.   Defendants are arguing what appears to be a non sequitur:  if plaintiff's new position had been a union position, or if the union had acquiesced, plaintiff would be entitled to the pension benefit, but because his new position was not a union position, and the union did not acquiesce, the benefit somehow must be considered to be a prohibited public emolument.

Defendants claim that the Pension Board is not a proper party.   The court believes that Luysterborghs v. Pension & Retirement Board, 50 Conn.Sup. 351 (2007) [43 Conn. L. Rptr. 584], holding that municipal agencies, boards, departments are not legally recognized parties (generally ) and therefore cannot be sued, provides the proper analysis.   The exception, of course, is in connection with administrative appeals where a right of review is statutorily provided and therefore, of necessity, the agency is presumptively a competent party for such review.   Otherwise, however, a department or board would not be a proper party.

The court believes that plaintiff's reliance on Zahrijczuk v. Water Pollution Control Authority of Branford, 52 Conn.Sup. 422 (Super.2012) [53 Conn. L. Rptr. 665], is misplaced.   While not necessarily rigorously true, designation of a body as an “authority” generally correlates with an increased level of independence if not outright autonomy.   Some examples:  Under § 8–40, a municipal housing authority is specifically designated as a “public body corporate and politic.”   Similarly, § 15–120cc(b) provides that the Connecticut Airport Authority shall have continuing existence as “a body politic and corporate,” and until recently repealed, § 32–203 provided for the existence of “a body politic and corporate to be known as the ‘Lower Fairfield County Conference or Exhibition Authority.’  “ More narrowly, there is an extensive body of caselaw indicating that a water pollution control authority is an autonomous body, capable of being sued in its own right/name;  see, e.g. Garufi v. Stamford, 2010 Ct.Sup. 14778, J.D. Stamford/Norwalk at Stamford, FST CV 09 5013040 (July 16, 2010) and cases cited therein.   Conversely, the analysis in Zahrijczuk works from the starting point that a water pollution control authority has been characterized by our Supreme Court as a quasi-municipal corporation, and there is no suggestion that the Pension Board (or any locally-created pension board) has ever been so characterized by an appellate court of this state.   Accordingly, while the analysis in Zahrijczuk is consistent with other trial court decisions, e.g. Garufi, this court does not believe that it can be extrapolated to pension boards in general or the Pension Board in this case.⁷

That leads to consideration of the consequences of such an improper party.   In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 400 (1995), the court treated the improper naming of the board of tax review, rather than the municipality itself, as a misnomer.   That, however, was in the context of a situation where the municipality had not been named at all.   Here, the Town of Westport is a party.   In effect, then, all of the allegations directed to the Pension Board are and should be considered to be part of the allegations directed to the Town.

There remains the nature of relief to be granted.   The court cannot enter (summary) judgment in favor of a party that doesn't exist—the very basis for the request for relief.   The court can either dismiss or strike the claim depending upon perspective—the court cannot exert jurisdiction over a nonexistent party and a legally sufficient claim cannot be asserted against a party that doesn't exist.   Further complicating any jurisdictional claim is that counsel filed an appearance on behalf of the Pension Board, and more than 30 days elapsed without any jurisdictional challenge—if the jurisdictional defect is personal, it has been waived.

Synthesizing the foregoing, the court believes that the appropriate order is dismissal of the case against the Pension Board;  see, e.g. Henderson v. Lagoudis, 148 Conn.App. 330 (2014);  subject to the complaint being read in a manner wherein references to the conduct of the Pension Board are deemed to be references to the Town acting through the Pension Board.⁸

Defendant also has claimed that impossibility is justification for a failure to perform—it excuses what otherwise might be deemed a breach.   See, e.g., Straus v. Kazemekas, 100 Conn. 581 (1924).   Again, there is a problem of a failure to differentiate between the independent claims being asserted against the Westport defendants—a claim based on the pension plan/agreement itself, and a claim based on the employment contract which provided for pension benefits.

Defendant does not address the question of whether a party's ability to provide substitute performance of an equivalent nature is or might be an impediment to a claim of impossibility.   An almost trivial example would be if a person went to a car dealership and entered into a contract for a particular vehicle with a designated Vehicle Identification Number (VIN), with the vehicle in transit to the dealership.   If the vehicle were delivered to a different dealership and sold, then it would be impossible for the dealer to deliver the designated vehicle, but that would not seem likely to be a basis for claiming impossibility of performance.   There likely would be in existence alternate vehicles allowing substitute performance, and if the alternate vehicles were not exactly the same, either the parties could agree on an adjustment or there might be a breach of contract claim for the difference in value.   If no comparable vehicle were available, are defendants suggesting that such a frustrated buyer would not have available a breach of contract claim (or other legal remedy) based on being deprived of the benefit of the bargain?   Translating the concept to this case, the fact that the Town might not be able to honor its commitment to provide pension benefits through a particular pension fund would not mean that an equivalent benefit could not be provided separately—in the sense of impossibility.

More fundamentally, defendant does not address the question of whether impossibility can be based on contractually-assumed obligations/limitations relating to a third party.   The State Board of Mediation and Arbitration was not interpreting legal principles in a vacuum but rather rendering a decision concerning the contractual relationship between defendant and a union representing its employees.   The right to arbitration was based on a collective bargaining agreement which, in turn, required a nexus between a filed grievance and the collective bargaining agreement in order to empower the Board to render a decision.   Defendant has failed to analyze impossibility in such a context, involving contractual rights if not truly volitional activity.   One can envision countless scenarios involving contractually-based limitations on the ability to act, which almost certainly would not come within the realm of impossibility as a defense.   For example, if A has a right of first refusal with respect to property owned by B, and B enters into an agreement to sell the property to C without any mention of A's rights, could B rely on impossibility based on A's exercise of its right of first refusal as a defense to a suit brought by C for breach of contract?   Or if D agrees to buy E's property but fails to notify E of an inability to get a mortgage loan within the time limits set by a mortgage contingency clause (or neglected to include a mortgage contingency clause in the agreement), could D defend a lawsuit based on impossibility of paying the purchase price without a mortgage loan?

Defendant cites Roy v. Stephen Pontiac–Cadillac, Inc., 15 Conn.App. 101 (1988).   In that case, the court stated:

The cases and commentary suggest that [t]he applicability of the defense of commercial impracticability [under § 2–615] turns largely on foreseeability.   The relevant inquiry is whether the risk of the occurrence of the contingency was so unusual or unforeseen and the consequences of the occurrence of the contingency so severe that to require performance is to grant the buyer an advantage he did not bargain for in the contract.   If the risk of the occurrence of the contingency was unforeseeable, the seller cannot be said to have assumed that risk.   If the risk of the occurrence of the contingency was foreseeable, that risk is tacitly assigned to the seller.   The seller's failure to provide a contractual excuse against the occurrence of a foreseeable contingency may be deemed to be an assumption of an unconditional obligation to perform.   Phrased somewhat differently, if a contingency is foreseeable, the section 2–615 defense is unavailable because the party disadvantaged by the fruition of the contingency might have contractually protected itself ․

15 Conn.App. 105–06 (internal quotation marks omitted).

In its analysis, defendant ignores the issue of foreseeability as identified in Roy, notwithstanding the fact that the risk of Union opposition/challenge apparently was known at the outset (and is part of defendant's own submission—see, Exhibit L).  Defendant does not explain why the Town's “failure to provide a contractual excuse against the occurrence of a foreseeable contingency [should not be] deemed to be an assumption of an unconditional obligation to perform.”

Focusing more narrowly on the technical aspects of a claim of impossibility, as identified in cases such as Straus v. Kazemekas, defendant does not address issues of fault, foreseeability and/or reliance either in absolute terms or in terms of implied conditions of the contract.   For there to have been an implied condition relating to plaintiff's ability to continue in the pension plan notwithstanding his promotion to a non-union position, the court would be required to determine conclusively that (impliedly) the parties would have agreed to such a condition if it had been expressly identified at or before the time the parties entered into their agreement.   That would seem to present a factual issue—assuming plaintiff did not claim that he never would have agreed to such a condition.   The court has been presented with evidence that, even at the outset, there was some level of uncertainty as to whether the Union would object to the continued inclusion of plaintiff in the pension plan (see, Exhibit L to defendant's submission) such that it would be difficult to fit this situation into the framework of impossibility and frustration of purpose, as discussed in Straus.

Yet again, the issue before the court is not whether there is evidence that might permit a factfinder to conclude that impossibility excused performance but rather whether the situation, as presented to the court at this time, unequivocally compels that conclusion.   Defendants have not met their burden in that regard.

Fennell Issues

The true battleground of this case, and especially of the competing motions for summary judgment, is the extent to which Fennell v. Hartford, 238 Conn. 809 (1996) is applicable and controls the outcome.

At the outset, the court needs to note that Fennell is but a particularized application of an oft-cited principle—a party dealing with a governmental entity, and particularly a municipality, is constrained by the limits of the actual authority of the individual(s) with whom he/she is dealing.  Norwalk v. Board of Labor Relations, 206 Conn. 449 (1988) (attorney lacked authority to bind municipality to settlement);  Keeney v. Old Saybrook, 237 Conn. 135, 145–55 (1996) (where agreement required approval of Board of Selectmen, neither First Selectman nor counsel had authority to bind Town);  New Haven v. Local 884, Council 4, AFSCME, AFL–CIO, 44 Conn.App. 764, 768–70 (1997) (attorney lacked authority to enter stipulated agreement in connection with grievance arbitration).

Yet again, defendant does not adequately distinguish between the two contractual claims it is attacking.   Indeed, the court's impression, especially based on counsel's argument, is that defendant may not be pressing the issue of validity of the employment contract but rather is focusing on the issue of pension rights.

The court believes that before delving into the details of the arguments of the parties, it might be helpful to review the legal framework believed to be applicable.   This is necessary, in part, as a result of plaintiff's repeated references to the original special act that created the pension plan, in contrast to defendants' reliance on the current charter and plan language.

General Statutes § 7–188 et seq. establish the procedures for implementation of Home Rule, indicating that, going forward, charters rather than special acts will be the basis for local law.  Section 7–188(a) ⁹ specifically states that such procedures can amend and supersede special acts, subject only to the limitation that they cannot contravene the Constitution or general statutes.   The statute does note, however, that mere non-inclusion of a provision from a special act into an adopted charter does not necessarily mean that the special act provision has been repealed, presumably leaving it to the court to apply the usual rules of statutory interpretation in divining the intent behind such non-inclusion.

An additional overlay, necessary for a complete understanding of the legal framework, is the applicability of labor law in general, and the Municipal Employees Relations Act (MERA), General Statutes § 7–467 et seq., in particular.   In the case of a conflict between a collective-bargaining provision and a charter provision, relating to terms and conditions of employment, General Statutes § 7–474(f) ¹⁰ provides that the collective-bargaining provision generally will prevail.

As a general principle of labor law, applicable also to municipal employees, a collective bargaining agreement is an agreement between the union acting on behalf of all employees, and the employer—unless specifically provided in the agreement, individual employees generally do not have enforcement rights of their own.   An exception to this general rule applies in cases where a union may be said to have failed to adequately represent its members' interests—a union may be held accountable for a failure to honor its duty of fair representation, and in a case where the union has been accused of a breach of the duty of fair representation, the employer also may be sued directly by the individual.   See, General Statutes §§ 7–468(d) and 7–470(b)(3);  but recourse may first be required to the State Board of Labor Relations, Piteau v. Board of Education, 300 Conn. 667 (2011).

The final and complementary legal principle is that the union represents existing employees, within the collective-bargaining unit.   Once an employee leaves employment in a position covered by the union contract (whether through retirement or otherwise), he/she is no longer an employee for purposes of that contract.

Synthesizing some of the foregoing legal principles, plaintiff's invocation of language from a special act, in and of itself, is an insufficient analysis of applicable law with respect to the controlling legal principles in Westport—due consideration needs to be paid to the current charter language and the extent to which special act language has survived despite changes wrought by iterations of the charter under the Home Rule Act. Further, to the extent that the pension plan has been modified (if not wholly replaced) as a result of collective bargaining, language in a special act—or even in the current charter—must be read giving due deference to the superseding impact of collective-bargaining.

The court has attempted to grapple with the Fennell issues and sub-issues and plaintiff's efforts to avoid the potentially lethal impact of that decision.   Unfortunately, like the Hydra of Hercules' second labor, each time an issue as identified by the parties seemingly was addressed or eliminated, two new ones became apparent.   Accordingly, the court believes that (to mix metaphors) instead of trying to negotiate the maze of issues presented by the cross motions, the court will go back to basics and identify the more fundamental problems it has encountered.

A natural starting point is the nature of plaintiff's claim.   Plaintiff insists that there is an express contract as the basis for his claim, but with sufficient references to conduct of Town officials and his understanding and belief as to inclusion of a pension benefit as to lend at least some level of credence to the claim of defendant that the contract being claimed is an implied contract.  Biello v. Watertown, 109 Conn.App. 572, 579–84 (2008) stands for the proposition that one cannot have an implied contract in a municipal context, without running afoul of Fennell.   Plaintiff does not explain why that case is not a bar—how his situation is different, or why there is a need for repeated references to indicia of an implied contract if he truly has an express contract.

Plaintiff also insists that any infirmities have been cured by ratification.   Ferrucci v. Town of Middlebury, 131 Conn.App. 289 (2011) indicates that there are limited, if any, circumstances in which a claim of ratification can apply, in a Fennell type situation.   Again, plaintiff does not explain why the principle articulated in that case is not a bar—why the court should not simply disregard ratification claims.

Parnoff v. Yuille, 139 Conn.App. 147 (2012) indicates that ratification should be a matter set forth in the pleadings.   Plaintiff has not alleged ratification as part of his reply to the special defense relying on Fennell.   Invoking Fennell does not appear to be a fact-based allegation as is required for a special defense (Practice Book § 10–50),¹¹ but to the extent plaintiff apparently understood the nature of the defense, Parnoff teaches that more than a denial was required if a plaintiff intends to rely on ratification.  (And again, the explicit reliance on claimed ratification is inconsistent with the claim that there was an express contract.)

With respect to the claim of ratification, as previously noted, plaintiff does not identify the nature of proof required, and for purposes of this motion, does not identify the quantum of proof that would be needed to remove the issue from status as a material issue in dispute.

Ultimately, many of these questions depend upon a central but seemingly overlooked issue that is something of a bridge or link between the two claims of plaintiff.   Plaintiff claims, in the alternative, a breach of his employment contract and a breach of his rights under the pension plan.   What the parties appear to have overlooked is that an employment contract is not a monolithic concept, a consideration that is especially significant in light of the Town's apparent vacillation on the issue of plaintiff's claim of an employment contract.

The parties are in agreement that an issue or potential issue is the formation of an employment contract.   The parties are in agreement that an issue is plaintiff's entitlement to benefits under the firemen's pension plan.   The “link” that the parties appear to have overlooked is the process by which, under applicable Westport law, employment benefits in a non-union position are determined—particularly, pension benefits.

That “missing link” is an essential consideration.   The Town appears to be vacillating as to whether it is contesting the existence of an employment contract with respect to plaintiff's promotion, but certainly based on the deposition testimony of the first Selectman which the Town attached to its submission (exhibit X at pp. 39–40), there is at least a factual issue as to whether the first Selectman had the authority to create the position and hire plaintiff to fill it.   As discussed below, if plaintiff's possibly-unauthorized agreement with the Town included continued participation in the firemen's pension fund, despite his promotion to a non-union position, then there may well be a factual issue as to ratification.   Between those two issues lies the question of whether participation in the firemen's pension fund was part of plaintiff's employment contract.

This, in turn, requires consideration of the method, under Westport law, for deciding the details of the benefit and compensation package that an employee (outside of a collective bargaining agreement) would get upon hiring or promotion.   Was it properly made part of plaintiff's employment contract?   Biello, 109 Conn.App. 581–84, indicates that a Fennell-type analysis applies to specific aspects of an employee's benefit/compensation package—there, the actual amount of compensation.   The issue was not whether the plaintiff was an employee or entitled to be paid, but rather compliance with the lawful mechanism for setting the rate of compensation applicable to the plaintiff.   Here, whether defendant seriously contests the lawfulness of the promotion itself, the issue is compliance with the (or a) mandated procedure for determination of employment benefits/compensation.

Identification of the proper methodology for providing benefits has not been addressed by the parties, and the court will not presume that the right to hire (which plaintiff claims is a power vested in the First Selectman) also imparts plenary authority over compensation and benefits.   For example, does the First Selectman have authority to give a non-Union employee free, lifetime medical insurance as a part of the compensation package?   Could he give such an employee, without regard to prior service, an immediately-vested pension benefit equal to his/her full salary?   Are there any limits to salary, vacation, sick time leave, etc. that the first Selectman can incorporate into an agreement, without outside authorization or approval (assuming he even plays a role in determining benefits)?   Or is there some structure or some required methodology, relating to benefits/compensation in general and pension/retirement rights in particular?

The issue of proper methodology implicates not only the existence of a binding contract but also has ramifications with respect to plaintiff's claim of ratification.   Ratification is premised on the conduct of the principal, but if ratification were to be a viable theory in the municipal context, then at least on an a priori basis, the same officials with authority to approve a contract would have to be the ones whose conduct constitutes ratification.   Absent identification of the proper mechanism, the court has no way of determining whether the appropriate officials have, or might have, ratified entitlement to this pension benefit.   Alternatively, if plaintiff chooses to argue that different officials can and did ratify plaintiff's claim for these pension benefits, the authority of such figures must be measured against the authority of the “appropriate officials,” using such “appropriate officials” as a benchmark if nothing else.   An example:  based on the submissions, the court has the sense that the Pension Board has authority only with respect to a person claiming a right to pension benefits derived from the individual's prior employment relationship with the Town;  if that perception is correct, then the question becomes how the Pension Board could be deemed to (effectively) create such a right via ratification or otherwise.   The court cannot make a determination as to whether this impression is correct, based on the absence of any attention to this issue by the parties.

It also implicates plaintiff's claim of status as a beneficiary of the pension plan.   That claim is somewhat circular, as status as a beneficiary presumes that he was a party intended to benefit from the plan, even after his promotion, but he could only be a beneficiary if he can identify the formal mechanism through which he became a beneficiary, consistent with (or at least not barred by) Fennell.  “It is well settled that one who [is] neither a party to a contract or a contemplated beneficiary thereof cannot sue to enforce the promise of the contract ․” Loiseile v. Browning & Browning Real Estate, LLC, 147 Conn.App. 246, 254 (2013).   The court can conceive of at least three different conceptual mechanisms, depending upon local law, whereby plaintiff might have a colorable claim to status as a beneficiary:  local law may designate a body or official(s) with general authority over awarding pension benefits;  a body or designated official(s) may have authority to change this particular pension plan with respect to beneficiaries;  or a body or designated official(s) may have plenary authority over compensation and benefits, without regard to authority to change a particular pension plan.

The court has searched the briefs, seeking any discussion relating to the process by which the Town of Westport determines benefits, particularly pension-type benefits, for non-union employees.   There is evidence that, as a matter of practice, upper-echelon non-union personnel in the fire department (e.g. deputy fire chiefs), were allowed to continue to participate in the fund, but that is more of an issue related to collective bargaining and possible exceptions to a general rule, rather than a process of general applicability.   The court recognizes that plaintiff does not appear to be abandoning the claim of past practice, at least as a possible argument, but to the extent that the Town presumably has other non-unionized employees, there presumably is a general procedure for determining benefits that they will receive;  even if benefits are the product of negotiations, there still needs to be some process by which the benefits “officially” become part of the compensation package.   Whether the answer is that the First Selectman has such authority, or the compensation package needs to be approved by the Representative Town Meeting, or approval of the Board of Finance is required, or some other process is provided, the court needs to know what that “default” process is (or if there are multiple mechanisms, what they are) and the extent to which such procedure was followed with respect to plaintiff.   The court notes that the analysis in cases such as Fennell and Keeney always starts with identification of the proper procedure, under local law, for the municipality to bind itself to, or modify, a contractual obligation.

To apply the foregoing discussion to the positions of the parties:  defendant relies upon Fennell, but as noted above, the starting point is and must be identification of the proper procedure applicable to the issue at hand.   In this case, the issue is not a matter of administration, which seemingly would be within the scope of authority of the Pension Board, but rather entitlement to participation in the plan itself as part of an employment contract.   If a properly-approved benefit associated with plaintiff's promotion was participation in this pension plan, then neither the SBMA decision nor the reversal of decision by the Pension Board would automatically entitle defendant to judgment;  rather, the situation would then be a Hobson's choice between violating the collective bargaining agreement and resulting arbitration award, or violating the contractual obligation to plaintiff.¹²

This likewise impacts plaintiff's reliance on ratification and the court's earlier identification of the need to identify the proper parties whose conduct might constitute ratification.   Further, with respect to claims relating to contract formation, Keeney emphasizes that not only must the proper party or body act in order to form a binding contract, but it also must be done with the appropriate formality.   In that case, the court specifically identified the need for selectmen to act at a duly-noticed meeting rather than acting individually in a more informal context.  237 Conn. 149–53.   Thus, for example, here, plaintiff's recitation that the First Selectman ratified the contract by virtue of his vote as a member of the Pension Board (brief at page 2) blurs the distinction between his conduct as First Selectman and as a member of a decision-making board.   Similarly, assuming the First Selectman had the necessary level of authority, statements made by the First Selectman at other times would need to be evaluated in context, particularly given the judicially-recognized concern about oral representations of municipal officials potentially giving rise to “endless litigation on the basis of misinformation by employees,” Biello, 109 Conn.App. 583.

In light of the pervasive nature of this threshold-type problem with application of Fennell to this case, the court will not go through a point-by-point analysis of the arguments of the parties relating to Fennell.   The court will note some of the other problems it has encountered.

Although mentioned earlier, it bears repetition:  Both sides have failed to distinguish, adequately, between the continuum of weight/persuasiveness of evidence and the standard for summary judgment.   Summary judgment requires that a party establish “what the truth is” (Ramirez, supra) and not simply that there is overwhelming evidence in support of its position or unconvincing evidence in support of the adversary's position.   For example, ratification is an inference to be drawn by the factfinder, based on evidence of conduct—plaintiff has not provided an analysis of the circumstances under which (if they exist at all) a court could be compelled to infer ratification, the standard that would be needed for summary judgment.   Marshaling the evidence in support of his position does not satisfy the summary judgment burden.  (The same can be said about defendant's efforts to obtain summary judgment based on defenses of public emolument and impossibility, as discussed earlier.)

At pages 13–14 of their brief, defendant argues:

Plaintiff's Fourth Count asserts a claim similar to the claim asserted by the plaintiffs in Fennell.   Plaintiff here alleges that the Pension Manual was the contract, and that it was ‘breached’ when the Pension Board voted to reform his pension award in accordance with the SBMA's mandate.   However, there is absolutely no evidence that the Pension Manual actually states that the Chief Technical Specialist must—or even should—be included in the pension plan;  nor is there evidence that those with authority under the Town Charter (the Board of [Selectmen] ) otherwise legally agreed that the Chief Technical Specialist position would be so included.   Moreover, the Fund Plan is not a document authorized by the Selectman, as the Hartford document in Fennell was, but rather, it is an agreement between the Defendant Town of Westport and the Defendant Union ․

The court has cited this passage at length because it incorporates at least two significant errors.   The issue is not whether any document states that the Chief Technical Specialist “must—or even should—be included in the pension plan” but rather whether such a position could be in the plan.   For defendants to be entitled to summary judgment on the issue, they have to show that plaintiff could not be in the plan, because their argument is premised on lack of authority at all.

Similarly, at least in general terms, the statement that “[m]oreover, the Fund Plan is not a document authorized by the Selectman, as the Hartford document in Fennell was, but rather, it is an agreement between the Defendant Town of Westport and the Defendant Union ․” fails to recognize the proper relationship between labor law and municipal law as discussed earlier in this decision.   As a collective-bargaining-type agreement, it presumptively takes precedence over otherwise-applicable provisions of local law, relating to terms and conditions of employment.   Defendant's arguments do not address this critical “piece of the puzzle.”   Defendant may well have a good argument as to why the plan does not override the Westport Charter (or the cited special act to the extent it has survived) in this particular scenario, but it has not presented such an argument to the court.

Conclusion

Defendant's jurisdictional special defenses do not address the court's jurisdiction over the subject matter of plaintiff's complaint.   Rather, at most, they represent limits on the scope of the court's ability to review certain matters that are issues underlying plaintiff's claims.   Even as special defenses, they would not suffice to defeat any of plaintiff's claims but rather, at most, identify certain areas of inquiry as “off-limits.”

The court agrees that the Pension Board is not a proper party—status as a party presupposes legal existence, and the Board does not have an identified independent legal existence.

Both on factual and legal grounds, defendant has failed to establish entitlement to judgment on the theories of impossibility and constitutional prohibition against public emoluments.   The fact that the Town may have contractually “painted itself into a corner” would not automatically entitle it to excused performance based on impossibility, nor would it necessarily transform a promised retirement benefit into a prohibited public emolument.

The Fennell issue, in broadest terms, is the true battleground of this case.   Absent proof, law, and arguments relating to the proper methodology for establishing benefits for non-union employees, the court cannot determine what was supposed to happen, what did happen, and whether what happened either created a contractual right or possibly constituted ratification.   The standard for summary judgment is establishing “what the truth is” as to factual matters, and that has not been accomplished.   To the extent that there has been attempted reliance on purely-legal issues, those have not been developed sufficiently to allow a determination.   The state of the pleadings, including the still-indefinite status of the proposed special defenses, is an overlay to these problems.

Further, the Town's vacillation as to whether there was a contractual relationship with plaintiff, of some form, relating to his promotion, only complicates things even further.   This may be a consequence of the perceived difficulty in arguing that the promotion, itself, was illegal;  the failure to parse the details of employment benefits/compensation from the employment relationship generally seemingly led to that conundrum.

At the risk of oversimplification, for the town to prevail on its summary judgment motion with respect to Fennell, it must establish that no available methodology for giving plaintiff pension benefits such as are claimed actually was followed, and, (conclusively) factually, ratification did not take place (or legally it could not take place).   For plaintiff to prevail on summary judgment against the Town, he must show either that an available methodology for giving him pension benefits was followed, or (conclusively) factually, ratification did take place.   Neither party has done so.

Summary judgment requires the moving party to establish, conclusively, “what the truth is,” and neither party has done so as to either count.

For all of these reasons, the Town's motion for summary judgment and plaintiff's cross motion for summary judgment, are denied;  the claim against the Pension Board is dismissed.

POVODATOR, J.

FOOTNOTES

FN1. It is not clear whether defendants acknowledge this sentence to be literally correct, to the extent it recites plaintiff's “understanding,” but it is clear that defendants dispute the factual accuracy of the reference to firefighting duties and participation in the pension plan.   (The District Court Judge had assumed the accuracy of plaintiff's recitations in his complaint for purposes of the motion under consideration, and this appears to be the only aspect of that recitation that might be perceived to be material and in dispute.).  FN1. It is not clear whether defendants acknowledge this sentence to be literally correct, to the extent it recites plaintiff's “understanding,” but it is clear that defendants dispute the factual accuracy of the reference to firefighting duties and participation in the pension plan.   (The District Court Judge had assumed the accuracy of plaintiff's recitations in his complaint for purposes of the motion under consideration, and this appears to be the only aspect of that recitation that might be perceived to be material and in dispute.)

FN2. The court recognizes that the propriety of the use of the word “implied” is in dispute.   Defendants repeatedly refer to the “implied” contract being asserted by plaintiff, whereas plaintiff repeatedly denies that the contract was implied.   The court does note, however, that plaintiff frequently refers to his “understanding” and what he “believed” based on the conduct and words of others.   As a practical matter, for purposes of this memorandum, a contract being “implied” is the alternative to a contract being formally adopted, which effectively is the Fennell issue discussed below..  FN2. The court recognizes that the propriety of the use of the word “implied” is in dispute.   Defendants repeatedly refer to the “implied” contract being asserted by plaintiff, whereas plaintiff repeatedly denies that the contract was implied.   The court does note, however, that plaintiff frequently refers to his “understanding” and what he “believed” based on the conduct and words of others.   As a practical matter, for purposes of this memorandum, a contract being “implied” is the alternative to a contract being formally adopted, which effectively is the Fennell issue discussed below.

FN3. A motion to strike, filed by the Westport defendants, was granted with respect to the second, third and fifth counts (# 105.86).   The second and third counts were directed only to the Westport defendants, and therefore no longer are in the case..  FN3. A motion to strike, filed by the Westport defendants, was granted with respect to the second, third and fifth counts (# 105.86).   The second and third counts were directed only to the Westport defendants, and therefore no longer are in the case.

FN4. This court heard arguments on the cross motions for summary judgment on November 25, 2013;  the objection to the request to amend had been marked “take papers” on the calendar for November 18, 2013, and the relevant order (# 155.86) was issued in mid-December..  FN4. This court heard arguments on the cross motions for summary judgment on November 25, 2013;  the objection to the request to amend had been marked “take papers” on the calendar for November 18, 2013, and the relevant order (# 155.86) was issued in mid-December.

FN5. SBMA=State Board of Mediation and Arbitration..  FN5. SBMA=State Board of Mediation and Arbitration.

FN6. Article First, § 1 of the Connecticut Constitution provides:  “All men when they form a social compact, are equal in rights;  and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”.  FN6. Article First, § 1 of the Connecticut Constitution provides:  “All men when they form a social compact, are equal in rights;  and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

FN7. The court notes that plaintiff has not identified any statute or other legal authority pursuant to which the Town had authority to create a corporate entity such as the Pension Board is claimed to be.   Municipalities can only act within the scope of powers given to them by the State, Buonocore v. Branford, 192 Conn. 399, 402 (1984)—absent identified authorization to do so, they lack general authority to create other legal entitles..  FN7. The court notes that plaintiff has not identified any statute or other legal authority pursuant to which the Town had authority to create a corporate entity such as the Pension Board is claimed to be.   Municipalities can only act within the scope of powers given to them by the State, Buonocore v. Branford, 192 Conn. 399, 402 (1984)—absent identified authorization to do so, they lack general authority to create other legal entitles.

FN8. Having concluded that the Board is not a proper party, for the remainder of this decision, the court will treat the town of Westport as the sole moving defendant..  FN8. Having concluded that the Board is not a proper party, for the remainder of this decision, the court will treat the town of Westport as the sole moving defendant.

FN9. “Any municipality, in addition to such powers as it has under the provisions of the general statutes or any special act, shall have the power to (1) adopt and amend a charter which shall be its organic law and shall supersede any existing charter, including amendments thereto, and all special acts inconsistent with such charter or amendments, which charter or amended charter may include the provisions of any special act concerning the municipality but which shall not otherwise be inconsistent with the Constitution or general statutes, provided nothing in this section shall be construed to provide that any special act relative to any municipality is repealed solely because such special act is not included in the charter or amended charter ․”.  FN9. “Any municipality, in addition to such powers as it has under the provisions of the general statutes or any special act, shall have the power to (1) adopt and amend a charter which shall be its organic law and shall supersede any existing charter, including amendments thereto, and all special acts inconsistent with such charter or amendments, which charter or amended charter may include the provisions of any special act concerning the municipality but which shall not otherwise be inconsistent with the Constitution or general statutes, provided nothing in this section shall be construed to provide that any special act relative to any municipality is repealed solely because such special act is not included in the charter or amended charter ․”

FN10. “Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7–467 to 7–477, inclusive, on matters appropriate to collective, as defined in said sections, and any charter, special act, bargaining ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission, or any general statute directly regulating the hours of work of policemen or firemen, or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees' retirement system or under the Policemen and Firemen Survivors' Benefit Fund, the terms of such agreement shall prevail ․”.  FN10. “Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7–467 to 7–477, inclusive, on matters appropriate to collective, as defined in said sections, and any charter, special act, bargaining ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission, or any general statute directly regulating the hours of work of policemen or firemen, or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees' retirement system or under the Policemen and Firemen Survivors' Benefit Fund, the terms of such agreement shall prevail ․”

FN11. The special defense alleged in the original answer filed by the Westport defendants (# 117.00) also invoked Biello, but without any recitation of facts or even suggestion of what the Fennell “doctrine” might be.   Defendants' proposed amended complaint re-asserts that special defense as the first special defense to the first and fourth counts..  FN11. The special defense alleged in the original answer filed by the Westport defendants (# 117.00) also invoked Biello, but without any recitation of facts or even suggestion of what the Fennell “doctrine” might be.   Defendants' proposed amended complaint re-asserts that special defense as the first special defense to the first and fourth counts.

FN12. This may have the unintended benefit of alleviating the ambivalence of the town with respect to the validity of the employment contract with plaintiff, relating to his promotion..  FN12. This may have the unintended benefit of alleviating the ambivalence of the town with respect to the validity of the employment contract with plaintiff, relating to his promotion.

Povodator, Kenneth B., J.