Barton v. City of Bristol

• Decision Date: 14 April 2009
• Docket Number: No. 17953.,17953.
• Citation: 291 Conn. 84,967 A.2d 482
• Court: Connecticut Supreme Court
• Parties: Peter BARTON v. CITY OF BRISTOL et al.

967 A.2d 482

291 Conn. 84

Peter BARTON v. CITY OF BRISTOL et al.

No. 17953.

Supreme Court of Connecticut.

Argued December 2, 2008.

Decided April 14, 2009.

Michelle N. Holmes, for the appellant (plaintiff).

Diana Garfield, Hartford, for the appellees (named defendant et al.).

Harry B. Elliott, Jr., for the appellee (defendant AFSCME, Council 15, Local 754, AFL-CIO).

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

ROGERS, C.J.

The plaintiff, Peter Barton, brought this action against the defendants, the city of Bristol (city), John DiVenere, the city's chief of police, and AFSCME, Council 15, Local 754, AFL-CIO (union), alleging that the city and DiVenere had violated General Statutes § 7-294aa(a)¹ by refusing to restore the plaintiff to his position on the Bristol police department after he had resigned from his employment in order to serve temporarily in peacekeeping operations in the country of Iraq. The plaintiff further alleged that the union had made negligent representations to him regarding his rights under § 7-294aa. After a trial to the court, the trial court rendered judgment in favor of the defendants. The plaintiff then brought this appeal,² claiming that the trial court improperly determined that: (1) the plaintiff's activities in Iraq had not been with an entity under the supervision of a qualified sponsoring organization under § 7-294aa; (2) the plaintiff did not come within the scope of § 7-294aa because he had not resigned from his employment with the Bristol police department but, instead, had retired; (3) the union had not negligently represented that § 7-294aa applied to the plaintiff; and (4) the union had not negligently represented that it would represent the plaintiff upon his return from Iraq. We affirm the judgment of the trial court.

The trial court found the following undisputed facts. The plaintiff began his employment with the Bristol police department in 1977. In 2004, he was a detective sergeant. As a member of the police department, the plaintiff was represented by the union.

In February, 2004, the plaintiff sent his resume to the recruiting office of DynCorp International FZ-LLC (DynCorp), a private company that contracts with the United States Department of State to recruit, select, equip and deploy police officers for overseas service. At some point thereafter, the plaintiff learned of the enactment of § 7-294aa and sought the opinion of Ken Gallup, the union's president, as to whether he believed that the statute would apply to him if he sought employment with DynCorp. Gallup indicated that he believed that the statute would apply to the plaintiff.

On July 28, 2004, the plaintiff requested a military leave of absence from the Bristol police department so that he could work for DynCorp. DiVenere denied the request because the plaintiff was not a member of the military. On August 4, 2004, the plaintiff applied for an unpaid personal leave of absence pursuant to the union's collective bargaining agreement. While the plaintiff was waiting for the city's response to his request for an unpaid leave, Gallup suggested that the plaintiff resign his position as a police officer, as authorized by § 7-294aa. The plaintiff and Gallup gave conflicting testimony at trial as to whether Gallup told the plaintiff that the union would represent him upon his return from Iraq in connection with his efforts to be reinstated to his position.

On September 4, 2004, while he was still awaiting a decision from the city on his request for an unpaid leave of absence, the plaintiff sent a draft resignation letter to Eric Brown, a staff attorney for the union. In the draft letter, the plaintiff stated: "Since with my resignation my retirement benefits will start, I am requesting that I not receive, nor will I accept at this time, payment for any unused sick time as I intend to return to such employment." Thereafter, Brown gave the plaintiff some suggestions regarding the language of the letter. Brown told the plaintiff that he believed that § 7-294aa would apply to the plaintiff's situation and that the plaintiff would be reinstated as a police officer upon his return from Iraq. Brown also told the plaintiff that he was concerned about the eligibility of the plaintiff's spouse for survivor benefits if the plaintiff were to die in Iraq without having requested his pension benefits in writing. Brown further stated that the union probably would represent the plaintiff when he returned to Connecticut, but that he could not guarantee that it would do so. The plaintiff testified at trial, however, that he would have gone to Iraq even if Brown had told him that the union would represent him only in connection with his rights under the collective bargaining agreement.

On September 14, 2004, the plaintiff left Connecticut for DynCorp training and subsequently went directly to Iraq. On September 20, 2004, DiVenere denied the plaintiff's request for a personal leave of absence.

Before going to Iraq, the plaintiff had given his wife a signed but undated letter addressed to the city that included the revisions suggested by Brown. The plaintiff's wife dated the letter October 1, 2004, and sent it to Diane Ferguson, the city's director of personnel. In the letter, the plaintiff stated that he "resign[ed]" from his position with the Bristol police department. He further stated that, "[as] a result of my resignation, I intend to claim all retirement benefits owed to me, immediately, except for the following: Unused sick time payout, which I intend to have remain in a bank for use upon my return to service in the police department." On October 29, 2004, Ferguson sent a letter to the plaintiff, with a copy to Brown, in which she stated that the city did not distribute retirement benefits piecemeal, and that the city would disburse the unused sick leave payout immediately in accordance with the terms of the collective bargaining agreement. Brown then sent a letter to Ferguson stating that it was the union's position that, under § 7-294aa, the plaintiff would be able to return to his position as a police officer after his return from Iraq, and that the city should hold the plaintiff's sick time payout in escrow in the expectation that, upon his return, he would require the full benefit. Brown stated that "it seems wiser for the [c]ity to simply hold the payout in escrow until all controversies are resolved upon [the plaintiff's] return." Ferguson denied Brown's request. Thereafter, retroactive to the date of the plaintiff's letter, the city provided retirement benefits to the plaintiff consisting of a pension, an unused sick leave payout in the amount of $22,386.85, and health insurance.

At a union executive board meeting in April, 2005, the board voted that it would not represent former union members who were attempting to be reinstated under § 7-294aa. Thereafter, Brown sent the plaintiff a letter stating: "The rights which accrue to individuals under [§ 7-294aa] are individual rights, and not rights related to any labor agreement or labor statute. The [e]xecutive [b]oard has determined that because you are no longer a member of the union, and because in your situation you are not entitled to representation pursuant to any authority under the international, council, or local union constitution, bylaws, or collective bargaining agreement, the union will not represent you."

The plaintiff returned from Iraq on September 22, 2005. By letter dated October 10, 2005, the plaintiff requested that the city reinstate him as a detective sergeant with the police department pursuant to § 7-294aa. DiVenere responded with a letter stating that the plaintiff had retired the previous fall and that the city would not reinstate him.

Thereafter, the plaintiff brought this action alleging that the city and DiVenere had violated § 7-294aa by refusing to reinstate him to his position as a police detective with the Bristol police department. He also alleged that the union had negligently misrepresented to him that it would represent him in connection with his efforts to be reinstated and that he would be entitled to reinstatement under § 7-294aa.

After a trial, the court rejected these claims. In its memorandum of decision, the trial court concluded that the statute did not apply to the plaintiff because he had not presented any evidence that DynCorp was an international peacekeeping mission under the supervision of the United Nations, the Organization for Security and Cooperation in Europe or other sponsoring organization, as required by the statute. As an independent ground for rejecting the plaintiff's claim under § 7-294aa, the court determined that the plaintiff had retired from his position, and that § 7-294aa applies only to police officers who resign from their positions, not to those who retire. With respect to the plaintiff's claims against the union, the trial court determined that the union had not made a misrepresentation of fact that it knew or should have known was false, but had merely offered an opinion regarding the applicability of § 7-294aa to the plaintiff's situation. In addition, the court found that the plaintiff had not proved that the union had misrepresented facts because the evidence showed that Brown had indicated that he could not guarantee that the union would represent the plaintiff upon his return from Iraq. Moreover, even if the union had misrepresented its intentions, the plaintiff had not established that he had relied on any such misrepresentation in making his decision to go to Iraq. Rather, the plaintiff had testified that he would have gone to Iraq even if he had known that the union would not represent him in matters unrelated to the collective bargaining agreement. Accordingly, the trial court rendered judgment for the defendants.

This appeal followed.³ We conclude that the trial court properly determined that the plaintiff had retired and that § 7-294aa does not...