Bartlett v. Krause

• Decision Date: 13 December 1988
• Docket Number: No. 13358,13358
• Citation: 209 Conn. 352,551 A.2d 710
• Parties: Patricia BARTLETT v. Herbert E. KRAUSE et al.
• Court: Connecticut Supreme Court

Page 710

551 A.2d 710

209 Conn. 352

Patricia BARTLETT v. Herbert E. KRAUSE et al.

No. 13358.

Supreme Court of Connecticut.

Argued Oct. 7, 1988.

Decided Dec. 13, 1988.

Michael N. LaVelle, Bridgeport, with whom, on the brief, was LeeAnn Solomon Christ, Milford, for appellants (defendants).

Howard A. Lawrence, New Haven, for appellee (plaintiff).

Before ARTHUR H. HEALEY, SHEA, GLASS, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

In this case, the plaintiff, Patricia Bartlett, was terminated as fire marshal of Redding Fire District No. 1 by the defendants, Herbert Krause, Hobart Pardee and Davis Bernhardt, the board of fire commissioners of that fire district. The plaintiff appealed to the Superior Court, which concluded that the defendants had acted illegally, arbitrarily and in abuse of their discretion. This appeal followed. We find no error.

Initially, several background circumstances should be set out. On January 14, 1986, the plaintiff was appointed by the defendants as fire marshal of Redding Fire District No. 1. On June 11, 1986, the defendants informed Bartlett in writing ¹ that she was terminated from that position. That letter did not set out any specific ground for her dismissal nor did it indicate that she had any opportunity to be heard in her own defense. Thereafter, by letter dated July 3, 1986, the plaintiff's counsel maintained that she had been "illegally terminated" as fire marshal, pointing out that the defendants had not complied with the public hearing requirements of General Statutes § 29-300 ² and demanded that a hearing be scheduled. On July 23, 1986, the defendants rescinded the earlier termination. ³ 3] By letter dated August 8, 1986, the defendants notified Bartlett that she would "have the opportunity to be heard in [her] own defense, personally or by counsel, at a public hearing that [had] been noticed for 3:00 p.m. on August 15, 1986 [Friday] at the Redding Ridge Fire House." That letter also contained a notice of the specific grounds for the plaintiff's dismissal. The plaintiff, with counsel, was present at the public hearing on August 15, 1986. The trial court specifically found that the defendants "selected their own attorney to serve as moderator for [that] hearing" and thus the "[d]efendants' attorney was thereby thrust into the untenable position of having to serve simultaneously as a moderator and as an advocate."

In its lengthy memorandum of decision, ⁴ the trial court pointed out that the record disclosed, inter alia, the following events. The plaintiff's problems with the defendants began on February 26, 1986, when she conducted an inspection of the building department in Redding. In her report on that inspection, she cited eight violations of the fire code including blocked access to the first floor exit, only one second floor exit and combustibles stored in the basement. An entire listing of the violations cited by the plaintiff was published in a newspaper on March 30, 1986. Thereafter, the first selectman requested relief from the requirements of the fire code and, on May 15, 1986, the plaintiff recommended that the request for modification or relief be denied. Her recommendation was then overruled and the relief requested was granted by the state fire marshal on May 20, 1986. Several days after that action, the defendants notified Bartlett that she was making an excessive number of long distance calls. On June 11, 1986, she was fired because the defendants had "determined that [her] performance [had] been unacceptable."

The trial court also pointed out that the defendants set forth the following reasons for terminating the plaintiff: "(1) She was a probationary employee who did not pay any attention to the probationary status ⁵ of her appointment, and either wilfully ignored or failed to understand that she was under an obligation to prove her abilities; (2) she was not able to carry out her duties independently as evidenced by a large number of long distance telephone calls to the State Fire Marshal's office; (3) she displayed a lack of common sense and reasonableness in her approach to her duties; (4) she seemed unable to apply the fire code in a practical and responsible way; (5) she fundamentally misunderstood the duties and powers of her office; (6) she did not attend meetings of the Board of Fire Commissioners or report her activities to them; (7) she was unavailable for consultations and the signing of blasting permits; and (8) at the scene of fires, she parked her vehicle in such a way as to block access of the fire equipment and generally interfered with the firefighters' performance of their duties."

At the hearing of August 15, 1986, as the trial court found, the defendants refused to produce any evidence and the plaintiff was advised that under the statute it was her burden to produce the evidence. In indicating that the plaintiff then produced evidence, the trial court noted that that evidence included: Ronnie Greenman, a state trooper for eighteen years, who had been assigned to the state fire marshal's office for the past eight and one-half years, testified at length as to the plaintiff's competence as well as to standard procedures among other fire marshals. He stated that he had accompanied the plaintiff on "99.9" percent of her inspections and he found her "far superior" to most fire marshals. Greenman also said that once the plaintiff cited someone for a violation, she could not waive it because only the state fire marshal's office has the authority to do that. This witness concluded that she did everything "correct," "she contacted our office properly," "she is doing her job 100%" and that "if her phone bill is not high she's not doing her job." ⁶ Cynthia Williams, the deputy fire marshal for the town of Weston, testified that the plaintiff was "competent," attended fire marshals' conferences and association meetings and that "she was interested in doing the best possible job she could." Fred Moore, the fire marshal of the town of Weston, testified that the plaintiff was responsive, competent and that he would recommend her as a deputy fire marshal. ⁷ Jean Whitham, chairman of the commission for the elderly, which supervised the Redding Senior Center, testified that the plaintiff "found at least twelve (12) infractions" at that location, ⁸ that some of these were taken care of, that the minimum amount of changes that could be made were made and that all the center's "systems--that were in place--are now actually working." Gordon Johnson, a Redding selectman and a former fire commissioner, said that when he examined the plaintiff's reports of her citations of the town office building, upon his becoming a selectman, he found "that most of the things that she was observing were the same sort of things that I had observed when I took a look in the basement...."

In its analysis, the trial court opined that the right to appeal the decision of an administrative agency existed only if given by statute and it referred specifically to General Statutes §§ 29-299 ⁹ and 29-300. ¹⁰ It determined that § 29-300 clearly gave certain protections to fire marshals and that it precluded summary dismissal without prior written notice of the specific grounds for dismissal and an opportunity to be heard in her own defense. Although the plaintiff was given a "public hearing," she claimed in the trial court that the hearing lacked fundamental fairness because the defendants had made their decision to terminate her even prior to the hearing, the plaintiff argued that the defendants, by their own admission, had conceded this by the answer of the named defendant, Herbert Krause, to an inquiry of the plaintiff's counsel as to whether the earlier decision that she was to be terminated on June 14, 1986, "is [that] still the decision of this Commission when this hearing started today?" Krause replied, according to the trial court, "I'd have to say yes...." ¹¹ Although it acknowledged the plaintiff's claim of predetermination and predisposition, the trial court concluded that " § 29-300 requires the commission to reach a decision to terminate the plaintiff before it sets up the public hearing." The trial court maintained that if predetermination were the plaintiff's only argument, she would be hard-pressed to prevail "albeit the facts do substantiate her claims of predisposition and predetermination." It did decide, however, that the plaintiff had a property right under § 29-300 that was protected by the fourteenth amendment to the United States constitution. She could not be dismissed without being given written notice of the specific grounds for the dismissal and an opportunity to be heard in her defense. The plaintiff, the trial court continued, was even further protected by due process. The court decided that her protected right to her position as fire marshal could be revoked only by a hearing at which certain minimum due process requirements were satisfied. These requirements were then recited to be: "(a) written notice of the claimed violations; (b) disclosure of evidence against him or her; (c) opportunity to be heard in person and to present witnesses; (d) the right to confront and cross-examine adverse witnesses; (e) a neutral and detached hearing body; (f) a written statement by the fact-finders as to the evidence relied on and reasons for action. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)."

In this connection, the trial court stated that after the plaintiff had found "substantial fire code violations" in her inspection of two principal municipal structures, a listing of these violations appeared in a local newspaper. She denied requests to modify her recommendations. These occurrences "further added to the chagrin and embarrassment" of the defendants according to the trial court. Further, the trial court found that they "ignored" the procedural mandates of § 29-300 and fired the plaintiff and notified...