Lead Opinion
Opinion
Thе defendants, Attorney General Richard Blumenthal and the state of Connecticut, appeal
The plaintiff brought this action against the defendants for indemnification pursuant to § 5-141d. The defendants moved to dismiss the action on the ground of sovereign immunity. The trial court denied the motion to dismiss.
The record reveals the following facts and procedural history. On March 14, 1996, Penny Ross, now known as Penny Ross-Tackach, a court reporter for the state judicial branch, filed a complaint with the commission on human rights and opportunities (commission) against the plaintiff and the judicial branch. In her complaint, Ross-Tackach alleged that the plaintiff had violated her civil rights under state and federal law by using his position of authority to coerce her into having a sexual relationship with him.
Ross-Tackach also filed a complaint, pursuant to General Statutes § 51-5U, with the judicial review council
After Ross-Tackach filed her complaint with the commission, the plaintiff requested that the defendants indemnify and dеfend him pursuant to § 5-141d.
Thereafter, the plaintiff filed an action against the defendants in the United States District Court for the District of Connecticut, alleging that the defendants’ refusal to indemnify and represent him had denied him due process under the United States constitution and had violated state law. The defendants moved to dismiss the plaintiffs action. The District Court dismissed, on sovereign immunity grounds, the plaintiffs federal due process claim seeking damages for the defendants’ failure to indemnify him. Flanagan v. Blumenthal, United States District Court, Docket No. 3:98CV148 (D. Conn. November 22, 1999). The District Court also dismissed the plaintiffs due proсess claim seeking injunctive relief for the defendants’ failure to represent him, after concluding that the plaintiff had failed to establish a cognizable property interest because he had not alleged sufficient facts to demonstrate that he had been acting within the scope of his employment, as required under § 5-141d. Id. After reviewing Connecticut law, the allegations in the complaint, and this court’s decision in In re Flanagan, the District Court further determined that the plaintiffs consensual sexual relationship “could not, as a matter of law, possibly be within the scope of [his] employment . . . .” Id. In light of its determinations with respect to the plaintiffs federal constitutional claims, the District Court declined to exercise supplemental jurisdiction over the plaintiffs state law claims.
Subsequently, after receiving a notice of the right to sue from the federal Equal Employment Opportunity Commission, Ross-Tackach filed an action against the plaintiff and the judicial branch in the United States District Court for the District of Connecticut, alleging violations of her civil rights. Thereafter, pursuant to a stipulation entered into by the parties, the District Court dismissed that action with prejudice. Tackach v. Flanagan, United States District Court, Docket No. 300CV022357 (D. Conn. April 25, 2001).
The plaintiff then filed the present action seeking damages, fees and costs in the Superior Court, alleging that the defendants’ failure to indemnify and defend him violated § 5-141d, as well as General Statutes §§ 4-141 and 4-165, and article first, §§ 8 and 20, of the Connecticut constitution.
We subsequently affirmed the trial court’s judgment. Martinez v. Dept. of Public Safety,
The defendants claim that the plaintiffs action is barred by the doctrine of sovereign immunity. We agree.
The judgment is reversed and the case is remanded to the trial court with direction to render judgment dismissing the рlaintiffs complaint.
In this opinion ZARELLA and LAVERY, Js., concurred.
Notes
The defendants appealed from the trial court’s judgment to the Appellate court. We then granted the defendants’ motion to transfer the case to this court pursuant to Practice Book § 65-2 and General Statutes § 51-199 (c).
General Statutes § 5-141d provides: “(a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the Public Defender Services Commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person’s civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.
“(b) The state, through the Attorney General, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the Attorney General, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.
“(c) Legal fees and costs incurred as a result of the retention by any such officer, employee or member of an attorney to defend his interests in any such civil action or proceeding shall be borne by the state only in those cases where (1) the Attorney General has stated in writing to the officer, employee or member, pursuant to subsection (b), that the state will not provide an attornеy to defend the interests of the officer, employee or member, and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have acted wantonly, recklessly or maliciously. Such legal fees and costs incurred by a state officer or employee shall be paid to the officer or employee only after the final disposition of the suit, claim or demand and only in such amounts as shall be determined by the Attorney General to be reasonable. In determining whether such amounts are reasonable the Attorney General may consider whether it was appropriate for a group of officers, employees or members to be represented by the same counsel.
“(d) The provisions of this section shall not be applicable to any state officer or employee to the extent he has a right to indemnification under any other section of the general statutes.”
“ ‘The general rule is that the denial of a motion to dismiss is an interlocutory ruling and, therefore, is not a final judgment for purposes of appeal.’ Shay v. Rossi,
The defendants also claim that, even if § 5-141d constitutes a waiver of the state’s sovereign immunity, the plaintiff has failed to satisfy the necessary predicate under § 5-141d (c) (2), which requires that he be “thereafter found to have acted ... in the scope of his employment,” because the claim brought against the plaintiff for which he seeks reimbursement arose out of a consensual sexual relationship he had with the claimant. Because we resolve this appeal on the issue of sovereign immunity, we need not reach that issue.
The plaintiff also had filed an action seeking to enjoin the proceedings before the commission on the grounds of, inter alia, estoppel and res judicata, in light of the review council’s findings that the charges were unfounded. The trial court’s decision denying injunctive relief on the ground that the plaintiff had failed to exhaust his administrative remedies was affirmed on appeal. See Flanagan v. Commission on Human Rights & Opportunities,
That judgment subsequently was affirmed on alternate grounds by the United States Court of Appeals for the Second Circuit. Flanagan v. Blumenthal, United States Court of Appeals, Docket No. 00-7307, 2000 U.S. App. Lexis 25441 (2d Cir. October 12, 2000). The Second Circuit determined that the broad discretion granted to the attorney general, under § 5-141d, to determine whether representation is “appropriate,” precluded the plaintiff from establishing a cognizable property interest in representation by the state. Id. That court further determined that, because § 5-141d provides an adequate postdeprivation remedy for the defendants’ refusal to indemnify in the form of an action for reimbursement, the plaintiff’s due process claim regarding indemnification likewise failed. Id.
The plaintiff also alleged that the defendants’ conduct violated article one, § 8, of the United States constitution. The plaintiff did not elaborate on the possible basis for this claim in his brief to the trial court and does not raise that claim in this appeal. We, therefore, deem that claim to be abandoned and decline to review it. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 1, 38-39,
The denial of a motion to dismiss based on the doctrine of sovereign immunity is a final judgment for purposes of appeal. See footnote 4 of this opinion.
General Statutes (Rev. to 2003) § 53-39a provides: “Whenever, in any prosecution of an officer of the Division of State Police within the Department of Public Safety, or a member of the Office of State Capitol Police or any person appointed under section 29-18 as a special policeman for the State Capitol building and grounds, the Legislative Office Building and parking garage and related structures and facilities, and other areas under the supervision and control of the Jоint Committee on Legislative Management, or a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred.”
As amended by No. 03-97, § 2, of the 2003 Public Acts, which was effective June 3,2003, the following sentence was added to the end of General Statutes (Rev. to 2003) § 53-39a: “Such officer may bring an action in the Superior Court against such employing governmental unit to enforce the provisions of this section.”
The defendants claim, further, that the indemnification of a state employee pursuant to § 5-141d rests within the sole discretion of the attorney general, and that, therefore, the plaintiff may not even apply to the claims commissioner for relief. We decline to rule on that claim because it is premature and is far beyond what is necеssary to decide the merits of this appeal.
Concurrence Opinion
concurring. I concur with the result reached by the majority, based on this court’s decision in St. George v. Gordon,
General Statutes § 5-141d (c) provides that, in order for a state officer to receive reimbursement for legal fees expended in defending against a lawsuit brought against him in his official capacity, that officer must show that “(1) the Attorney General has stated in writing to the officer, employee or member, pursuant to subsection (b), that the state will not provide an attorney to defend the interests of the officer, employee or member, and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have аcted wantonly, recklessly or maliciously. . . .” In the present case, Penny Ross, now known as Penny Ross-Tackach, accused her employer, the judicial branch of the state of Connecticut, acting through the plaintiff, Robert C. Flanagan, in his official position as a Superior Court judge, of employment discrimination. Specifically, she alleged in a variety of forums, including the judicial review council and the United States District Court, that the plaintiff had violated her rights by subjecting her to repeated sexual assaults. The judicial review council determined that the allegations of sexual assault were unfounded and that the sexual relations between Ross-Tackach and the plaintiff had been consensual, and the United States District Court dismissed her complaint with prejudice. Nevertheless, the named defendant, the attorney general, refused to reimburse the plaintiff for legal fees incurred in the course of defending himself against the allegations, concluding that the allegations of a sexual relationship between the рlaintiff and Ross-Tackach, a state employee, did not involve conduct taken “in the discharge of his duties or in the scope of his employment,” as required by § 5-141d (c).
In her concurring opinion, Justice Katz states that “the plaintiffs allegations regarding the consensual sexual relationship, supported by his testimony before the judicial review council, indicate that his relationship with Ross-Tackach gave rise to the injury [i.e., costs incurred in defending himself against false claims of sexual assault] for which he now seeks reimbursement . . . .” It may be true that, if the рlaintiff had not engaged in a consensual sexual relationship with RossTackach, she never would have made her now discredited allegations of sexual assault. That does not mean, however, that, as a legal matter, the consensual sexual relationship “gave rise” to allegations of sexual assault. This becomes clear if one substitutes some other, more remote and less emotionally charged, conduct for the consensual sexual relationship. For example, if RossTackach had falsely accused the plaintiff of sexual harassment in the workplace because he had declined to recommend her for a country club membership— conduct that is clearly not related to employment—it would be absurd to state that this conduct “gave rise” to the accusations and, therefore, the plaintiff should not be reimbursed for expenses incurred in defending himself.
My intention here is not to defend the plaintiffs relationship with Ross-Tackach. I strongly believe, however, that it is unjust, unwise and against the legislative policy embodied in § 5-141d for the attorney general to penalize the plaintiff for that conduct in this context. Indeed, “[t]he same policy which demands the holding of public officers to strict account in matters of public trust, also demands their protection against groundless assaults upon their integrity in the discharge of public duty.” Birmingham v. Wilkinson,
Justice Katz states that, “in order to obtain reimbursement for legal costs under § 5-141d (c), the employee must be found, in fact, to have been acting in the scope of his employment.” When the accusations against the state employee are completely baseless, however, such a finding simply cannot be made. For example, the plaintiff in the present case cannot establish
In this case, for example, even though the plaintiff had been publicly censured for his consensual sexual relationship with Ross-Tackach, the state had an interest in ensuring that he was not falsely labeled as a rapist. There is a vast difference between the public’s perception of a consensual, albeit inappropriate, sexual relationship between a high public official and a subordinate and its perception of a high public official’s using his office to coerce a subordinate into providing sexual favors.
Concurrence Opinion
concurring. On appeal, the defendants, attorney general Richard Blumenthal and the state of Connecticut, proffer two reasons why the trial court improperly denied their motion to dismiss the claim of
I disagree with the majority’s conclusion that the trial court improperly determined that § 5-141d constitutes a waiver of the state’s sovereign immunity. I would conclude, however, that the defendants are entitled to prevail under their second claim, namely, that, even if § 5-141d constitutes such a waiver, the plaintiff has failed to satisfy the necessary statutory predicate that he be “thereafter found to have acted ... in the scope of his employment,” because the claim brought against the plaintiff for which he seeks reimbursement arose as a result of a consensual sexual relationship. Therefore, I would conclude that the court had jurisdiction to con
I
In St. George v. Gordon,
II
Therefore, I next address the question of whether the plaintiff can satisfy, as a matter of law, the statutоry prerequisite to reimbursement under § 5-14M. As a preliminary matter, I address the plaintiffs contention that we cannot review the issue of the statutory prerequisite. Specifically, the plaintiff contends that reviewing whether he had acted in the scope of his employment would require this court to resolve a factual dispute, and that such an exercise is improper when reviewing
Although most claims raising the issue of whether an employee had acted in the scope of his or her employment present a question of fact, necessitating a case-by-case inquiry, cases may arise “in which an employee is so clearly within or without the scope of his employment that the question is one of law . . . .” King v. Board of Education,
“In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”
Whether the plaintiffs complaint alleges facts that, construed in the light most favorable to him, demonstrate that he “is thereafter found to have acted . . . in the scope of his employment,” within the meaning of § 5-141d (c), is a question of statutory interpretation. “Statutory construction . . . presents a question of law over which our review is plenary. . . . [Therefore, in accordance with] our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative histoiy and circumstаnces surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Vickers,
Section 5-141d does not define the phrase “scope of employment.”
Moreover, § 5-141d (c) further requires that the party seeking reimbursement is “thereafter found to have acted ... in the scope of his employment . . . .” (Emphasis added.) This requirement thereby indicates that, in determining whether the employee is entitled to reimbursement, the appropriate focus is not on the allegations that gave rise to the claim for which the employee seeks reimbursement, but, instead, on a finding of fact made after the resolution of the claim. See Hunte v. Blumenthal, supra,
With this interpretation in mind, I now turn to the plaintiffs complaint to determine whether he has alleged facts, viewed in the light most favorable to him, establishing that he was acting in the scope of his employment. The plaintiffs complaint sets forth certain allegations that formed the basis of the civil action brought against the plaintiff by Penny Ross-Tackach, a former court reporter who had worked for the state judicial branch and with whom the plaintiff had engaged in a consensual sexual relationship. Specifically, his complaint sets forth Ross-Tackach’s allegation that the plaintiff had “subjected her to repeated sexual harassment . . . .” The plaintiffs complaint further provides that Ross-Tackach’s “complaint clearly alleges that [the plaintiff had] acted within the scope of his employment between the hours of 9 a.m. and 5 p.m. on working days.”
It is well settled, in the context of sexual harassment claims, that a supervisor’s sexual relationship with a subordinate generally is not considered to fall within the scope of the supervisor’s employment.
The plaintiff contends, however, that, because the allegations of sexual harassment against him were baseless, his conduct per se falls within the scope of his employment. That conclusion is predicated on the plaintiffs contention that his status as a public official provided the sole basis for Ross-Tackach’s complaint. The plaintiff contends, therefore, that “if a public official is sued because of his or her status as a public officer, he or she is ‘in the discharge of his duties or within the scope of his employment.’ ” I disagree.
In the present case, the plaintiffs complaint alleges no employment-related conduct engaged in by him with respect to Ross-Tackach. Indeed, the plaintiffs complaint clearly alleges that, “the only activity which took place, as set forth by the Judicial Review Council, was limited to a consensual sexual relationship . . . .” (Emphasis added.) Therefore, the plaintiffs allegations regarding the consensual sexual relationship, supported by his testimony before the judicial review council, indicate that his relationship with Ross-Tackach gave rise to the injury for which he now seeks reim
Additionally, “[factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. . . . West Haven Sound Development Corp. v. West Haven,
Nevertheless, in support of his contention that a public official falsely accused of abusing his authority is entitled to reimbursement for defending against such an allegation, the plaintiff directs our attention to Birmingham v. Wilkinson,
The plaintiff relies on the Wilkinson court’s discussion of groundless actions, however, without ever taking note of the factual context in which that case arose. The officials’ conduct therein giving rise to the action against them was the performance of acts that one would expect of such officials conducting official city business: passing a resolution appropriating salaries; repealing a city ordinance requiring an excise tax in favor of one imposing a licensing tax; and proposing a city budget. Id., 202. Accordingly, the plaintiffs reliance on Wilkinson is misplaced. Likewise, several hypothetical situations suggested by the plaintiff in support of his position suffer from the same defect.
In the present case, the only conduct the plaintiff alleges that gave rise to Ross-Tackach’s action was a consensual sexual relationship. Accordingly, the action precipitating the injury for which the plaintiff seeks reimbursement was “motivated by purely personal considerations entirely extraneous to his employer’s interest.” Antinerella v. Rioux, supra,
General Statutes § 5-141d provides: “(a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the Public Defender Services Commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person’s civil rights or other act or omission rеsulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.
“(b) The state, through the Attorney General, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the Attorney General, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.
“(c) Legal feеs and costs incurred as a result of the retention by any such officer, employee or member of an attorney to defend his interests in any such civil action or proceeding shall be borne by the state only in those cases where (1) the Attorney General has stated in writing to the officer, employee or member, pursuant to subsection (b), that the state will not provide an attorney to defend the interests of the officer, employee or member, and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have acted wantonly, recklessly or maliciously. Such legal fees and costs incurred by a state officer or employee shall be paid to the officer or employee only after the final disposition of the suit, claim or demand and only in such amounts as shall be determined by the Attorney General to be reasonable. In determining whether such amounts are reasonable the Attorney General may consider whether it was appropriate for a group of officers, employees or members to be represented by the same counsel.
“(d) The provisions of this section shall not be applicable to any state officer or employee to the extent he has a right to indemnification under any other section of the general statutes.”
The plaintiff, citing Dillon v. Bailey, United States District Court, Docket No. 3:98CV1576 (JBA) (December 1, 1998), also claims in his brief that because, in the past, the defendants have indemnified a public official after a jury expressly had found that the official had acted wilfully and maliciously, contrary to the statutory requirement under § 5-141d; see footnote 1 of this concurring opinion; the defendants are bound to reimburse him. Because I would conclude, as I state herein, that the plaintiff has failed to satisfy another predicate to reimbursement, that is, that he was acting in the scope of his employment, I would not reach this issue. Briggs v. McWeeny,
Indeed, although many other indemnification provisions impose a “scope of employment” requirement; see, e.g., General Statutes §§ 1-125, 4-16a, 4-165, 7-273h, 7-308, 7-465, 10a-109s, 22a-134K, 32-47 and 32-206; only one provision, General Statutes § 4-165, includes any definition of the phrase, and that definition, by its express terms, is not all-inclusive. Section 4-165 provides in relevant part: “For the purposes of this section ‘scope of employment’ shall include, but not be limited to, representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by 1he court as a special assistant publiс defender of an indigent accused or of a child on a petition of delinquency, representation by such other attorneys, referred to in section 4-141, of state officers and employees, in actions brought against such officers and employees in their official and individual capacities, the discharge of duties as a trustee of the state employees retirement system, the discharge of duties of a commissioner of Superior Court hearing small claims matters or acting as a lact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, and the discharge of duties of a person appointed to a committee established by law for the purpose of rendering services to the Judicial Department including, but not limited to, the Legal Specialization Screening Committee, the State-Wide Grievance Committee, the Client Security Fund Committee and the State Bar Examining Committee; provided such actions
The Restatement (Second), supra, § 228, provides in relevant part: “(1) Conduct of a servant is within the scope of employment if, but only if:
“(a) it is of the kind he is employed to perform;
“(b) it occurs substantially within the authorized time and space limits;
“(c) it is actuated, at least in part, by a purpose to serve the master ....
“(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.”
I note that the inquiry regarding whether an employee has acted within the scope of his or her employment when sexually harassing another employee may be distinct from the inquiry as to whether the employer may be liable for such conduct. See Burlington Industries, Inc. v. Ellerth,
In In re Flanagan,
For example, the plaintiff supposes situations in which a judge reassigns a court clerk to a duty the clerk deems less desirable or initiates a disciplinary action against the clerk. Thereafter, the clerk files an employment discrimination action, falsely alleging that the judge had sexually harassed the clerk. The plaintiff also supposes a situation in which a judge renders judgment against a claimant, which thereafter leads the claimant falsely to accuse the judge of taking a bribe. We presume, in the absence of facts to the contrary, that the judge’s position normally entails such conduct and the judge is acting in good faith. Under these circumstances, it readily is apparent that the judge’s conduct that gave rise to the clerks’ false accusations, as in Wilkinson, was within the scope of the judge’s employment. Accordingly, contrary to the view urged by the plaintiff in the present case, it was not solely the judge’s status that brought his or her actions within the scope of employment in each instance, but, rather, the judge’s legitimate exercise of authority in discharging his or her duties.