Barde v. Board of Trustees of Regional Community Colleges

• Decision Date: 12 April 1988
• Docket Number: No. 13180,13180
• Citation: 207 Conn. 59,539 A.2d 1000
• Court: Connecticut Supreme Court
• Parties: , 46 Ed. Law Rep. 300 Robert E. BARDE v. BOARD OF TRUSTEES OF REGIONAL COMMUNITY COLLEGES.

Page 1000

539 A.2d 1000

207 Conn. 59, 46 Ed. Law Rep. 300

Robert E. BARDE v. BOARD OF TRUSTEES OF REGIONAL COMMUNITY COLLEGES.

No. 13180.

Supreme Court of Connecticut.

Argued Jan. 12, 1988.

Decided April 12, 1988.

Robert L. Hirtle, Jr., with whom was Mark A. Rosenblum, Hartford, for appellant (plaintiff).

Thomas P. Clifford III, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Robert W. Garvey, Asst. Atty. Gen., for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and COVELLO, JJ.

COVELLO, Associate Justice.

This is an appeal from the dismissal of the plaintiff's declaratory judgment action for lack of jurisdiction. The plaintiff, Robert E. Barde, sought by way of declaratory relief from the defendant, board of trustees of regional community colleges, tenured status as an accounting professor and an increase in his salary.

The defendant moved to dismiss the action claiming that the doctrine of sovereign immunity deprived the court of subject matter jurisdiction. The court concluded that: (1) the real party in interest was the state; (2) there had been no permission granted to bring this action; (3) allegations of constitutional violations advanced by the plaintiff were insufficient; and (4) the court lacked subject matter jurisdiction by reason of the doctrine of sovereign immunity. The court therefore granted the motion to dismiss and the plaintiff appealed. Since there were two separate prayers for relief, i.e., (1) tenured status as an acting professor, and (2) an increase in salary, a separate analysis with respect to each claim is required. See Doe v. Heintz, 204 Conn. 17, 526 A.2d 1318 (1987).

The dispositive issue on appeal with respect to the plaintiff's tenure claim is whether his claims of the denial of federal and state constitutional guarantees of due process and equal protection of the laws were sufficiently established so as to preclude the operation of the doctrine of sovereign immunity. We conclude that this was not the case and that the trial court correctly held that there was no subject matter jurisdiction. We therefore find no error on that claim. With respect to the plaintiff's claims for an increased salary, and for benefits because of an alleged estoppel, the plaintiff's claims were correctly dismissed because of his failure to exhaust administrative remedies whose availability has not been contested.

Examination of the record discloses that the plaintiff was the dean of academic affairs at Manchester Community College from 1980 through 1986. On July 15, 1985, the plaintiff sought a transfer to faculty status. He thereafter resigned his $50,321 per year job as dean and accepted a ten month position as a nontenured, full professor at a salary of $39,585.

The complaint alleged that on two prior occasions, college deans had been appointed to full, tenured professorships at "83.33% of their previous year's salary, plus any wage-reopener under the applicable collective bargaining agreement." In the plaintiff's case, such an arrangement would have produced a salary of $45,304. The complaint further alleged that the plaintiff's resignation as dean had been based upon an expectation of similar salary and tenure treatment, that the defendant knew this and yet failed to treat his transfer in the same fashion as others similarly situated. The plaintiff claimed that the defendant "denied [him] his constitutionally guaranteed rights to due process and equal protection of the law as provided by the Constitution[s] of the United States of America and the State of Connecticut."

In a second count incorporating the earlier allegations, the plaintiff further claimed that having "reasonably relied to his detriment ... the Board is now estopped to deny to [him] the benefits it has conferred on similarly-situated individuals in the past...."

In reviewing the validity of constitutional claims in the context of a jurisdictional dispute, we note that "[a] motion to dismiss pursuant to Practice Book § 142 may perform the role of either a motion to erase or a plea in abatement under our former practice." Pellegrino v. O'Neill, 193 Conn. 670, 672 n. 4, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S.Ct. 236, 83L.Ed.2d 176 (1984). The motion to dismiss like a "motion to erase admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Perrys, Inc. v. Waterbury Redevelopment Agency, 157 Conn. 122, 124, 249 A.2d 256 (1968). Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, ¹ the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint. Garden Mutual Benefit Assn. v. Levy, 37 Conn.Sup. 790, 791, 437 A.2d 141 (1981).

The supporting affidavits filed by the defendant disclosed the following additional undisputed facts. On July 15, 1985, the plaintiff, then dean of academic affairs, wrote William E. Vincent, the president of Manchester Community College, advising him that he was amenable "to a change to faculty status." On July 24, 1985, Vincent responded to the plaintiff's letter, agreeing to support his "reassignment to full-time teaching" with the understanding, however, that "the terms and conditions of your appointment to the faculty will have to be worked out with Mr. McKirdy [the Executive Director] and gain subsequent Board approval." On January 15, 1986, the plaintiff again wrote Vincent stating that his desires were "(1) Academic Rank of Professor; (2) A salary conversion to 10/12; (3) Tenure." On January 22, 1986, Vincent responded by memo that included the statement "I informed you orally that your appointment recommendation would contain the following essential elements. (1) Rank of full Professor; (2) A salary set at the seven-year target salary standard in effect as of July 1, 1986 for professors; ² [and] (3) appointment without tenure in the new job function." (Emphasis added.) There is nothing in the record to indicate that the plaintiff ever challenged this proposal by way of a reply.

On May 8, 1986, Vincent again wrote the plaintiff setting forth his recommendations to the defendant concerning the plaintiff's reassignment to a faculty position. The letter's essential terms were identical to those conveyed to the plaintiff in the memo of January 22, 1986.

On May 12, 1986, the plaintiff wrote Vincent stating for the first time that "[t]here are two areas which I do not find satisfactory; namely, the matters of tenure and compensation." The letter concluded, "I am hopeful that these two matters can be resolved to my satisfaction prior to presentation to the Board...."

On May 15, 1986, executive director Andrew C. McKirdy wrote to the plaintiff acknowledging receipt of the May 12 letter in the president's absence. He confirmed that his (McKirdy's) recommendation to the defendant would be identical to that recommended by Vincent. The letter further stated, "I understand that you are aware of other managers who have been appointed to the faculty with tenure. In these circumstances, the Board simply recognized the fact that the individuals had achieved tenure previously under the preexisting Board policies. Your case, of course, differs." (Emphasis added.) The plaintiff has not challenged by counteraffidavit, brief or argument the accuracy of this statement.

On June 16, 1986, the defendant approved the reclassification of the plaintiff's position from that of dean of academic affairs to that of professor of accounting. The specific terms of the reclassification were in accordance with Vincent's earlier recommendation.

Although the named defendant here is the board of trustees of regional community colleges, these colleges are state public institutions and the real party in interest is the state. "[S]ince the state can act only through its officers and agents a suit against a state officer [or board] is in effect one against the sovereign state." Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977).

"[W]e have long recognized the ... common-law principle [the doctrine of sovereign immunity] that the state cannot be sued without its consent...." Id. The state did not consent to the institution of this action. However, "[i]n a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts." Sentner v. Board of Trustees, 184 Conn. 339, 343, 439 A.2d 1033 (1981). The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests. See, e.g., Upson v. State, 190 Conn....