Terrence Carter v. City of New London Board of Education et al. (2015)

RULING ON MOTIONS FOR SUMMARY JUDGMENT FILED BY THE DEFENDANTS CITY OF NEW LONDON BOARD OF EDUCATION (Doc. No. 115.00) AND MARGARET CURTIN (Doc. No. 113.00)

This case is an action by the plaintiff, Terrence Carter, seeking a declaratory judgment and money damages from the defendants, City of New London Board of Education (“Board”) and Margaret Curtin, Chairperson of that Board, based on the Board's rescission of his appointment as Superintendent of the New London Public Schools on August 28, 2014.  The complaint is in two counts:  Count One, against the Board, alleges breach of contract;  Count Two, against Curtin, alleges tortious interference with a business expectancy.  Both defendants have filed motions for summary judgment.  See Doc. Nos. 113.00 and 115.00.  For the following reasons, the court finds that the material facts are not in dispute and that the defendants are entitled to judgment as a matter of law.  Therefore, judgment shall enter in favor of the defendants, City of New London Board of Education and Margaret Curtin, and against the plaintiff, Terrence Carter.

I

The law governing summary judgment is well settled.  As our Appellate Court has summarized:

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.  (Citation omitted;  internal quotation marks omitted.)  Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).

* * * *

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.  (Citations omitted;  internal quotation marks omitted.)  Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17–45 and 17–46, a party opposing a summary judgment motion “must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999).  As noted by the trial court in this case, typically “[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.”  (Internal quotation marks omitted.)  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).  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.”  (Citations omitted;  internal quotation marks omitted.)  Id., 244–45.

Rockwell v. Quintner, 96 Conn.App. 221, 227–29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The Practice Book further mandates that “[a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence.  Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings.”  Practice Book § 17–45.  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”  Practice Book § 17–46.

II

In connection with their motions for summary judgment, the defendants filed affidavits signed by Margaret Curtin, Attorney Saranne Murray, Attorney Anthony Shannon and Attorney Christopher Engler.  They also supplied the court with numerous exhibits including a transcript of the deposition of the plaintiff in this matter, and voluminous other records and correspondence documenting the facts in the case.  The plaintiff filed an objection with an affidavit.  Attached was a copy of his employment contract with the Board, signed by the plaintiff, but not by the Board.

Based on a review of the materials filed, and other undisputed matters, the court finds that the following material facts are not in dispute:  At all times relevant to the allegations of the complaint in instant case, the defendant, Board, was the governmental agency within the City of New London responsible for hiring the Superintendent of Schools for the City. General Statutes § 10–157(a).  The defendant, Curtin, was at all times relevant to the complaint, Chairperson of the Board, who could be authorized by vote of the board to sign an employment contract for a Superintendent.  With the term of the incumbent Superintendent of Schools for the City of New London set to expire on June 30, 2014, the defendant Board began a nationwide search for a replacement in late 2013.  It formed a search committee and hired a consultant to assist it with its efforts.

A posting for the opening of Superintendent of Schools was made in March 2014.  On March 11, 2014, the plaintiff submitted an application for the position.  In his application, he listed his education as follows:  BA from Rutgers University (May 1987);  MPH/MSW from University of California at Berkeley (May 1990);  CAS from National–Louis University in Educational Administration and Leadership (May 2005);  and Ph.D. anticipated from Lesley University in Adult Learning and Leadership (May 2013).  Nevertheless, he stated that his highest degree attained was Ed.D./Ph.D.

He further submitted a 2007 case study of his work while principal of a Chicago elementary school which stated that he earned a doctorate in adult learning and leadership from Lesley University in Cambridge, MA. He also supplied three reference letters in which he was referred to as “Dr.” and he signed correspondence to the Board as “Terrence P. Carter, Ph.D.”

A background check commissioned by the board uncovered a bankruptcy filing by the plaintiff in Illinois in 2012 which he had not disclosed.  On inquiry, he explained that he filed for bankruptcy due to credit card debts run up by his wife in his name during a contentious divorce.  He said he later “rescinded” the bankruptcy filing and chose not to pursue a claim against his wife so as to avoid a rift in his relationships with his children.  Leslie University also disclosed that the plaintiff was a doctoral candidate at Leslie University, but that an award of a Ph.D. was not expected until August 25, 2014.

At a special meeting held on June 12, 2014, the Board voted “to appoint Terrence Carter as the Superintendent of Schools, effective August 1, 2014, subject to ratification of the terms and conditions of a negotiated contract.”

The plaintiff promptly negotiated a contract with Board staff.  He also put his Chicago real estate on the market for sale, rented his Chicago residence, and put his personal belongings in storage.  He relocated to New London, as required by the contract.

The progress on his employment became derailed when, on July 18, 2014, newspaper articles began appeared in the Hartford Courant written by reporters Jon Lender and Kathleen Megan, reporting that the plaintiff had been referring to himself as “Dr. Terrence Carter” or “Terrence Carter, Ph.D.” in numerous public or official documents for years when, in fact he had no accredited doctorate.  The plaintiff reportedly told the reporters that he had a degree from Hamersfield University in London which would permit his practice in the ministry.  He provided a college transcript, but the transcript was from Lexington University for a degree in Human Resources Management and Organizational Learning.  An investigation showed that Lexington University was a proverbial “diploma mill” source, selling degrees for a price of up to several hundred dollars.  Other disclosures were made in newspaper articles written by reporter Colin Young of The Day of New London.

As to what happened next, the parties are in dispute.  The plaintiff averred that he signed the negotiated contract in June 2014 prior to a June Board meeting, and that Curtin told him, prior to that June meeting, that the newspaper article was not a problem and that she “had the votes to adopt the written agreement and authorize her signature of same.”  He averred that she told him that “the signing of the written agreement was a pro forma matter and that he should not attend the meeting.”  He stated that, contrary to her assurances, at the June meeting, she told the Board, “she was unaware of why I was absent and she failed to provide them with my explanations for the content in the Hartford Courant article.”  Curtin denies the plaintiff's allegations.  The court finds that there was no evidence in the record of a June 2014 meeting to vote on the plaintiff's contract.  Moreover, the record shows that the article allegedly discussed in June was not published until July 18, 2014, and that the contract plaintiff alleges that he signed in June was dated July 17, 2014.  He signed it above a signature line for “Dr. Terrence Carter.”

It is undisputed that the Board was scheduled to vote on the contract on July 21, 2014.  That meeting was cancelled to permit more time to study the plaintiff's credentials.  The meeting was rescheduled for July 24, 2014.  At that meeting the Board went into executive session to discuss the matter.  The plaintiff was present at all times.  He gave a statement to the Board at that time.  He stated that the he had never used the title “Dr.” verbally or on any professional documents in his educational career.  He said that others had so referenced him “in some non-school related community activities” and that, in hindsight, he should have corrected them.  He stated that he did use the title “Dr.” in the corporate setting and in his role as the Director of Christian Education Ministries and a “mega church” in San Francisco based on a degree that he received from Hamersfield University, which he admitted was unaccredited.  He then left the Executive Session.  The Board determined, at that time, that it should conduct further investigation into the matter, and it hired a law firm to do so.

The law firm it hired was Shipman & Goodwin, LLP. Attorneys from that firm interviewed the plaintiff and several other witnesses, and they conducted an internet based search and search of public records concerning the plaintiff and his application.  The report demonstrated that the plaintiff had frequently held himself out as having a doctorate degree, including a Ph.D. in organizational leadership from Stanford University.  The report showed that his cover letter and application to the Board contained many passages that were plagiarized.  And it showed that he was dishonest in answering questions about his bankruptcy filing history.  His explanation of circumstances of his 2012 bankruptcy being caused by wife during their divorce, and concern for his relationship with his children, were not truthful as he was never married and he had not seen his children in years.  Also, the report revealed a 1999 bankruptcy filing in California which he did not disclose and, at first, denied.  The report from Shipman & Goodwin was received by the Board at its meeting on August 28, 2014.  The Board members unanimously voted to “rescind its appointment of Mr. Terrence Carter and decline to enter into any contract of employment with him.”

Subsequently, Shipman & Goodwin received records showing that the plaintiff had been convicted of shoplifting on May 25, 1983 in a New Jersey Municipal Court.  In his application to the Board, he had answered “No” to the question “[h]ave you ever been convicted of a criminal offense other than a minor traffic violation?”

In his affidavit in response to the defendants' motion for summary judgment, the plaintiff averred that “I do not have a criminal record.  I gave complete and accurate information regarding my bankruptcy.  I provided accurate information about my background and qualifications to the New London Board of Education in my application and in my interviews with the Board, and specifically, I did not mislead or defraud the Board concerning my educational, employment or criminal histories.”

III

Both defendants have filed motions for summary judgment seeking a judgment in their favor without a trial.  The issues are discussed seriatim:

A

The defendant, Board, moves for summary judgment as to Count One of the plaintiff's complaint against it, which alleges breach of contract.  The Board argues that material facts are not in dispute and that it is entitled to judgment as a matter of law because (1) there was no contract ever formed between the plaintiff and the Board;  (2) the claim is barred by Fennell v. City of Hartford, 238 Conn. 809, 681 A.2d 934 (1996);  and (3) even assuming, arguendo, that a contract exists, the contract is void because the board was induced to enter into it by the plaintiff's fraudulent conduct.  The court agrees with the Board on all three points.

The plaintiff opposes the motion, inter alia, on the grounds that the material facts are in dispute and, therefore, the matter can only be resolved at trial.  The court does not agree.  While the plaintiff does dispute certain critical facts, particularly concerning alleged assurances by Curtin and her actions in contradiction to her alleged assurances, his contentions are conclusory and unsupported by any evidence.  Therefore, his disagreement with the facts is no barrier to resolution of the issues by summary judgment.  “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”  Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The elements of a breach of contract action are:  the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.  Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004);  T. Merritt, Connecticut Elements of an Action (2010–2011 Ed.) § 4:1.  It is beyond cavil that the parties did not have an express contract in the instant case.  The only contract in evidence is an employment contract dated July 17, 2014 and it was only signed by the plaintiff, not by the Board.  While it is true that the Board voted to appoint the plaintiff as Superintendent of Schools on June 12, 2014, that appointment was conditional.  It was subject to ratification of the terms and conditions of a negotiated contract.  That ratification never occurred, and the appointment was rescinded on August 28, 2014.

Plaintiff argues that even if the existence of an express contract is questionable, the parties' actions and statements created, at the very least, an implied contract.  As with a breach of express contract, the basic elements of a cause of action for breach of implied contract are “formation, performance, breach and damages.”  Bross v. Hillside Acres, Inc., 92 Conn.App. 733, 782, 887 A.2d 420 (2006);  Gianetti v. Gerardi, 52 Conn.Sup. 207, 213, 44 A.3d 911 (2010), aff'd, 133 Conn.App. 858, 58 A.3d 1211 (2012).  “Whether a contract is styled express or implied involves no difference in the legal effect, but lies merely in the mode of assent.”  (Citations omitted;  internal quotation marks omitted) Boland v. Catalano, 202 Conn. 333, 337, 521 A.2d 142 (1987).

A true implied [in fact] contract can only exist ․ where there is no express one.  It is one which is inferred from the conduct of the parties though not expressed in words.  Such a contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefore, and the defendant, knowing such circumstances, avails himself of the benefit of those services.  In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth Although both express contracts and contracts implied in fact depend on actual agreement ․ [i]t is not fatal to the finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognize the existence of contractual obligations.

(Citations omitted;  internal quotation marks omitted.)  Janusauskas v. Fichman, 264 Conn. 796, 804–05, 826 A.2d 1066 (2003).

Plaintiff argues that he had an actual agreement with the Board, and it broke the agreement.  He argues that an agreement was reached after negotiations between the parties' attorneys.  The agreement was reduced to a written contract with all the terms and conditions clearly stated.  The plaintiff was instructed to sign the contract prior to the meeting, which he did.  Plaintiff was instructed that he would need to relocate to Connecticut, which he did.  Therefore, although the existence of a contract may be a question of fact, the actions and words of the parties suggest that the parties had formulated a full agreement, he argues.  Plaintiff's Brief, p. 6. For the same reasons that the court found no express contract, it finds no implied contract.  The agreement was clearly conditional, and the condition did not occur.  The court finds no evidence that plaintiff was assured, after his credentials and credibility were impugned, that the Board was willing authorize the signing of the contract.  Therefore, there was no implied contract.  Plaintiff's citations of authority to the contrary are inapposite.

Even if there was an implied contract, the court agrees with the defendant that an implied contract cannot be asserted against a governmental agency like the Board, based on the conduct of the Board's agents, under our Supreme Court precedent in Fennell v. City of Hartford, supra.  That case held that retirement benefits promised in an employee handbook could not form the basis of an implied contract binding on a municipality when the charter or applicable statutes required any such provisions be enacted by the city council.  While the facts in that case are not comparable to the instant case, the same principal is applicable here.  In the instant case, a state statute required that the superintendent of schools be hired by vote by the Board.  General Statutes § 10–157(a).¹  The Board did not do so in the instant case.  It voted to hire him subject to approval of a contract, but it did not approve a contract.  To the contrary, it declined to enter into any contract of employment with him.  So, any actions by agents of the Board, even if they occurred and could form the basis for an implied contract in a private setting, are not actionable in this governmental setting.  “[A]ll who contract with a municipal corporation are charged with notice of the extent of ․ the powers of municipal officers and agents with whom they contract;  and, hence, it follows that if the ․ agent had in fact no power to bind the municipality, there is no liability ․” (Citation omitted, internal quotation marks omitted.)  Fennell v. City of Hartford, supra, 238 Conn. 814.

Finally, the Board argues that even assuming, arguendo, that the Board and plaintiff had a contract, express or implied, the contract was void because the Board was induced into entering it by the plaintiff's fraudulent conduct.  Fraud in inducement to enter into a contract is an equitable defense.  Practice Book § 10–50;  Texaco, Inc. v. Golart, 206 Conn. 454, 459, 538 A.2d 1017 (1988).  A party fraudulently induced to enter into a contract can rescind the contract.  See Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 32, 889 A.2d 785 (2006).  To prevail on fraudulent inducement claim or defense, the defendant must prove “(1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury.”  (Internal quotation marks omitted.)  Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777, 802 A.2d 44 (2002);  citing Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995).  “A fraudulent representation ․ is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it ․ This is so because fraudulent misrepresentation is an intentional tort.”  (Citations omitted;  internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010).  The standard of proof in such cases is that of clear and convincing proof, a standard greater than proof by a fair preponderance of the evidence but less than proof beyond a reasonable doubt.  Cf. Stuart v. Stuart, 297 Conn. 26, 40, 996 A.2d 259 (2012);  Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 296, 478 A.2d 257 (1984), overruled on other grounds, Kaczynski v. Kaczynski, 294 Conn. 121, 981 A.2d 1068 (2009);  see, also, Kilduff v. Adams, 219 Conn. 314, 326–27, 593 A.2d 478 (1991) (burden of proving each element of fraud, except damages, is by clear and satisfactory;  or clear, precise and unequivocal evidence).

In the instant case, the evidence was clear and convincing that the plaintiff repeatedly and intentionally misrepresented his educational credentials, work product, criminal history and financial history to get the defendant to hire him as Superintendent of Schools for the City of New London.  He deceived the Board into taking steps to award him a contract, until his deceptive conduct was revealed in newspaper stories.  The evidence proves the defense of fraudulent inducement.

B

The defendant, Curtin, also moves for summary judgment as to Count Two of the complaint against her for tortious interference with a business expectancy.  She asks for judgment in her favor on the grounds that (1) there was no contract between the plaintiff and the board and, even assuming arguendo that such a contract did exist, there is no evidence Ms. Curtin intentionally interfered with that contract, and no evidence that her conduct was tortious nor that any loss allegedly suffered by the plaintiff was the result of Ms. Curtin's conduct;  (2) the claim is barred by the intracorporate conspiracy doctrine;  (3) Ms. Curtin is entitled to volunteer immunity pursuant to the federal Volunteer Immunity Act, 42 U.S.C. § 14501 et seq.² and General Statutes § 52–557n(c); 3  and (4) Ms. Curtin is entitled to governmental immunity.⁴

The plaintiff objects, again, on the grounds that the material facts are in dispute and, therefore, the matter can only be resolved at trial.  Again, the court does not agree.  While the plaintiff does dispute certain critical facts, particularly concerning alleged assurances by Curtin and her actions in contradiction to her alleged assurances, his contentions are conclusory and unsupported by any evidence.  Therefore, his disagreement with the facts is no barrier to resolution of the issues by summary judgment.  “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”  Scott v. Harris, supra, 550 U.S. 380.

Having previously found that there was no enforceable express or implied contract in this case, the court agrees with defendant's argument that the defendant cannot be liable for tortious interference with that contract.  Nevertheless, the plaintiff's cause of action is not so narrow.  The cause of action for tortious interference is not limited to redressing interferences with only enforceable contracts.  See Harry A. Finman & Sons, Inc. v. Conn. Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975).  “[I]t is not necessary for a plaintiff to prove that a contract was in fact breached in order to recover on a claim of tortious interference.”  (Citations omitted.)  Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 866 (2015).  A plaintiff need only show a reasonable probability that he would have entered into a contract.  Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355 (1944).

The elements of plaintiff's cause of action were set forth in Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000).  That case reads, in pertinent part, as follows:

A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct.  Collum v. Chapin, 40 Conn.App. 449, 452, 671 A.2d 1329 (1996).

Appleton v. Board of Education, supra, 254 Conn. 212–13.

Not every act that disturbs a contract or business expectancy is actionable:

For a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious.  This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ [Blake v. Levy, supra ], 261, quoting Kecko Piping Co. v. Monroe, 172 Conn. 197, 201–02, 374 A.2d 179 (1977).  An action for intentional interference with business relations ․ requires the plaintiff to plead and prove at least some improper motive or improper means ․ Blake v. Levy, supra, 262;  Kakadelis v. DeFabritis, 191 Conn. 276, 279–80, 464 A.2d 57 (1983);  see also Sportsmen's Boating Corporation v. Hensley, 192 Conn. 747, 753, 755, 474 A.2d 780 (1984) (liability in tort imposed only if defendant acted maliciously).  (Citation omitted;  internal quotation marks omitted.)  Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 535–36, 546 A.2d 216 (1988).  The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but ‘intentional interference without justification.’  4 Restatement (Second), Torts § 766, comment(s) (1979).  In other words, the [plaintiff] bears the burden of alleging and proving ‘lack of justification’ on the part of the actor.  Id.

Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999);  accord, Landmark Investment Group, LLC v. CALCO Construction & Development Co., supra 318 Conn. 869.

Plaintiff's cause of action fails as a matter of law in this case because the material facts show no tortious conduct by the defendant, Curtin.  There was no proof of the duplicitous behavior claimed.  And, to whatever extent Curtin participated in calling off progress on the plaintiff's fraudulently induced contract, that was no violation of plaintiff's rights.  The defendant had a right, if not a duty, to oppose that contract under the circumstances.

Additionally, the court agrees with defendant's argument that no claim can be asserted against her under the intracorporate conspiracy doctrine.  That doctrine provides that “[e]mployees of a corporation acting within the scope of their employment cannot conspire with one another or with the corporation that employs them;  each acts for the corporation and the corporation cannot conspire with itself.”  (Citations omitted, internal quotation marks omitted, emphasis removed.)  Harp v. King, 266 Conn. 747, 781, 835 A.2d 953 (2003).  The doctrine has applicability in the instant case to the extent that it underpins the principle that “an agent acting legitimately within scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principle and a third party ․” Metcoff v. Lebovics, 123 Conn.App. 512, 520, 2 A.3d 942 (2010).  An exception to the general rule applies if the agent did not act legitimately within the scope of his duty, but used the corporate power improperly for personal gain.  Id., 521.  An agent acts within the scope of his duty as long as he is discharging his duties or endeavoring to do his job, no matter how irregularly, or with disregard of instructions.  Id., 522–23.  In this instant case, there was no evidence that the defendant, Curtin, was acting improperly for her own personal gain, or improperly at all.  Accordingly, she cannot be liable for tortious interference with plaintiff's business expectancy.

Finally, defendant argues that she is protected by volunteer immunity under state and federal law, General Statutes § 52–557n(c) and 42 U.S.C § 14501 et seq., or by governmental employee immunity codified in General Statutes § 52–557n(c).  Those immunities are defenses to actions.  Such defenses ordinarily involve issues of fact that must be specially pled and resolved at trial unless the applicability of the defenses are apparent on the face of the complaint, see, e.g., Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006) (granting of motion to strike upheld), or where the material facts are not in dispute and the court can resolve the issues as a matter of law.  See, e.g., Bouchard v. Deep River, 155 Conn.App. 490, 110 A.3d 484 (2015) (granting of motion for summary judgment upheld);  but see, Williams v. Housing Authority of the City of Bridgeport, 159 Conn.App. 679, 689 (2015) (granting of motion for summary judgment reversed).  Having found that the plaintiff has no claim in this case, analysis and resolution of the immunity issues would call on the court to engage in an academic exercise based on a plethora of alternative hypothetical assumptions.  That is a purely academic exercise and the courts, ordinarily, will not engage in such an exercise.  See Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 197, 90 A.3d 219 (2014).  In light of its findings, the court finds it unnecessary to resolve the hypothetical immunity issues in the instant case.

IV

For all of the foregoing reasons, the court finds that the material facts are not in dispute and that the defendants are entitled to judgment as a matter of law.  Therefore, judgment shall enter in favor of the defendants, City of New London Board of Education and Margaret Curtin, and against the plaintiff, Terrence Carter.

Robert F. Vacchelli

Judge, Superior CourFN⌑1. General Statutes § 10–157(a) provides, in pertinent part, as follows:

FOOTNOTES

FOOTNOTE.  Employment of a superintendent shall be by election of the board of education ․ A majority vote of all members of the board shall be necessary to an election ․

FN2. The federal act provides, in pertinent part, as follows:(a) Liability protection for volunteers—Except as provided in subsections (b) and (d) of this section, no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if—(1) the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;(2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity;(3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer;  and(4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the State requires the operator or the owner of the vehicle, craft, or vessel to—(A) possess an operator's license;  or(B) maintain insurance.42 U.S.C. § 14503(a).  FN2. The federal act provides, in pertinent part, as follows:(a) Liability protection for volunteers—Except as provided in subsections (b) and (d) of this section, no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if—(1) the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;(2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity;(3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer;  and(4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the State requires the operator or the owner of the vehicle, craft, or vessel to—(A) possess an operator's license;  or(B) maintain insurance.42 U.S.C. § 14503(a)

FN3. General Statutes § 52–557n(c) provides as follows:(c) Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury occurring on or after October 1, 1992, resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person, or in violation of subsection (a) of section 9–369b or subsection (b) or (c) of section 1–206.  The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, willful or wanton misconduct of such person..  FN3. General Statutes § 52–557n(c) provides as follows:(c) Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury occurring on or after October 1, 1992, resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person, or in violation of subsection (a) of section 9–369b or subsection (b) or (c) of section 1–206.  The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, willful or wanton misconduct of such person.

FN4. The law of governmental liability and governmental immunity is now largely controlled by statute.  General Statutes § 52–557n sets out the rules, and the exceptions.  In pertinent part, the statute provides that municipalities “shall be liable” for “[t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ․ “[e]xcept ․ negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”  General Statutes § 52–557n(a).  This parallels the common-law qualified immunity of the employee.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 169 n. 3, 544 A.2d 1185 (1988);  Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982);  D. Wright, J. FitzGerald, W. Ankerman, Conn. Law of Torts (3rd Ed.1991) Sec. 93.  Thus, governmental immunity for discretionary acts is identical to the employee's immunity for discretionary acts.  Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010);  Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).  In other words, generally, municipalities and their employees may be exposed to liability for acts of negligence unless the function involved the exercise of discretion.  The corollary rule is that there is no immunity for ministerial acts.  Kastancuk v. East Haven, supra, 120 Conn.App. 287.  The word “ministerial” refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.  Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1171 (1989).  An act is ministerial where, for example, it is required to be performed in a prescribed manner by a city charter provision, ordinance, regulation, rule, policy or any other directive.  Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006);  Kastancuk v. East Haven, Id..  FN4. The law of governmental liability and governmental immunity is now largely controlled by statute.  General Statutes § 52–557n sets out the rules, and the exceptions.  In pertinent part, the statute provides that municipalities “shall be liable” for “[t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ․ “[e]xcept ․ negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”  General Statutes § 52–557n(a).  This parallels the common-law qualified immunity of the employee.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 169 n. 3, 544 A.2d 1185 (1988);  Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982);  D. Wright, J. FitzGerald, W. Ankerman, Conn. Law of Torts (3rd Ed.1991) Sec. 93.  Thus, governmental immunity for discretionary acts is identical to the employee's immunity for discretionary acts.  Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010);  Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).  In other words, generally, municipalities and their employees may be exposed to liability for acts of negligence unless the function involved the exercise of discretion.  The corollary rule is that there is no immunity for ministerial acts.  Kastancuk v. East Haven, supra, 120 Conn.App. 287.  The word “ministerial” refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.  Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1171 (1989).  An act is ministerial where, for example, it is required to be performed in a prescribed manner by a city charter provision, ordinance, regulation, rule, policy or any other directive.  Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006);  Kastancuk v. East Haven, Id.

Vacchelli, Robert F., J.