Bellis Decision
-
Upload
the-valley-indy -
Category
Documents
-
view
217 -
download
0
Transcript of Bellis Decision
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 1/11
defendant has failed to submit evidence that would tend to put the marshal's affidavit in dispute.6
Accordingly, the plaintiff s action was timely commenced pursuant to $ 52-593a and the
defendant's motion for summary judgment on this ground is denied.
ry
Qualified Immunity
Finally, the defendant has moved for summary judgment on the ground that he has
qualified immunity for the acts alleged to be negligent. He argus that he is entitled to qualified
immunity because he reasonably believed that, atthe time he erased the hard drives and removed
the backup tapes, he was acting within the scope of his official duties as mayor and has qualified
immunity for his discretionary acts pursuant to General Statutes S 52-557? and at common law.
6 Insofar as the defendant implies that a "late-blooming recollection" of a marshal is
generally suspect and "invites finagling," in appropriate situations, the defendant's concerns can
be addressed adequately by an evidentiary hearing on the matter. See, e.g, DaSilva v. East Coast
Concrete Products, LLC, supra, 46 Conn. L. Rptr. 513 (court heard evidence by agreement ofparties and found date that process was personally delivered to marshal); Fiore v. Schwartz,
Superior Court, judicial district of New Haven, Docket No. CV 02 0468116 Qrlovembet 28,2007, Cosgrove, J) (44 Conn. L. Rptr. 572) (noting "an amended return or substitute affrdavitmay be the preferable means of bringing this information to the court's attention"); Martidis v.
Lombard Realty, supra,22 Conn. L. Rptr. 535 n.2 (denying motion to dismiss and noting "[t]hiscourt may also determine that a hearing is necessary to supplement the facts set forth in this
amended sheriff s refurn").
7 General Statutes $ 52-557n (a) provides in relevant part: "(1) Except as otherwise
provided by law, a political subdivision of the state shall be liable for damages to person or
property caused by: (A) The negligent acts or omissions of such political subdivision or any.-ployr., offrcer or agent thereof acting within the scope of his employment or official duties . .
. . 1); nxcept as otherwise provided by law, a political subdivision of the state shall not be liable
for damages to person or property caused by . . . (B) negligent acts or omissions which require
the exercise ofjudgment or discretion as an official function of the authority expressly or
impliedly granted by law."
t4
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 2/11
In opposition, the plaintiff argues: (1) that the defendant's actions were ministerial in nature in
that he had a mandatory duty to follow the obligations imposed by a number of statutes, and that
because qualified immunity does not protect the misperfofinance of ministerial acts, he is not
immune from suit; and (2) because he was not engaged in a governmental function and acting for
the benefit of the public, the defendant cannot claim the protection of qualified immunity.
Our Supreme Court has noted that'femployee immunity for discretionary acts is identical
to the municipality's immunity for its employees' discretionary acts under $ 52-557n." (Internal
quotation marks ornitted.) Grady v. Somers,294 Com.. 324, 339-40 n.15, 984 A.2d 684 (2009).
"section 52-557n, enacted in 1986 , . . specifically delineates circumstances under which
municipalities and its employees can be held liable in tort and those under which they will retain
the shield of governmental immunity. . . . Although the statute contains no express exceptions to
governmental immunity for discretionary acts, this court has assume[d], without deciding, that $
52-557n(a) (2) (B) codifies the common law relating to circumstances in which immunity is
abrogated." (Citation omitted; internal quotation marks omitted.) Durrant v. Board of
Education,284 Conn. 91, 105, 931 A.2d 859 (200D.8
"Municipal officials are immune from liability for negligence arising out of their
discretionary acts in part because of the danger that amore expansive exposure to liability would
t "1our Supreme Court has] identified three exceptions to discretionary act immunity. . .
First, liability may be imposed for a discretionary act when the alleged conduct involves malice,
wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when
a statute provides for a cause of action against a municipality or municipal offrcial for failure toenforce certain laws. . . . Third, liability may be imposed when the circumstances make itapparent to the public officer that his or her failure to act would be likely to subject an
identifiable person to imminent ham." (Citations omified; intemal quotation marks omitted.)
Doe v, Petersen,279 Conn. 607 , 615-16, 903 A.2d 191 (2006).The parties in the present case have not raised any ofthese exceptions.
15
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 3/11
cramp the exercise of official discretion beyond the limits desirable in our society. . . .
Discretionary act immunity reflects a value judgment that-despite injury to a member of the
public-the broader interest in having government officers and employees free to exercise
judgment and discretion in their official functions, unhampered by fear of second-guessing and
retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. . . .
In contrast, municipal officers are not immune from liability for negligence arising out of their
ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of
judgment or discretion. . . . This is because society has no analogous interest in permitting
municipal officers to exercise judgment in the performance of ministerial acts." (Citations
omitted; internal quotation marks omitted.) Doe v. Petersen,279 Cowr. 607 , 614-15, 903 A.2d
1el (2006).
"The hallmark of a discretionary act is that it requires the exercise ofjudgment. . . . In
contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without
the exercise ofjudgment or discretion. . . . [M]unicipal officers are not immune from liability for
negligence arising out of their ministerial acts." Violano v. Fernandez,280 Conn. 310, 318-19,
907 A.2d 1188 (2006). A determinative factor as to whether an action is ministerial is the
presence of a written policy, directive or guideline given to employees with regard to their
actions in a particular situation. Compare Violano v. Fernandez, supra, 323 (determining
qualified immunity applied to defendant's alleged failure to "teasonably or adequately secure the
property that was under his care, custody, or control" because plaintiffs failed to allege that
defendant "was required by any city charter provision, ordinance, regulation, rule, policy, or othet
directive to secure the property in any prescribed manner") with Kolaniakv. Board of Education,
T6
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 4/11
28 Conn. App. 277 ,280-81, 610 A.2d 193 (1992) (determining that immunity did not apply
because act of clearing snow and ice by maintenance workers, in accordance with directive by
policymaking board of education, was ministerial). "See also 2A E. McQuillin, The Law of
Municipal Corporations (3rd Ed. Rev. 2006) $ 10.52, p. 531 ([o]fficial action . . . is ministerial
when it is absolute, certain, and imperative, involving merely the execution of a set task, and
when the law that imposes it prescribes and defines the time, manner, and occasion of the
performance with such certainty that nothing remains for judgment or discretion)" (Internal
quotation marks omitted.) Bar Harbor Place, I, LLC v. Ganim, Superior Court, complex
litigation docket at Waterbury, Docket No. X06 CV 04 0184523 (October 5,2007, Stevens, J.).
"Although the determination of whether official acts or omissions are ministerial or
discretionary is normally a question of fact for the fact finder . . . there are cases where it is
apparent from the complaint. . . . [T]he determination of whether an act or omission is
discretionary in nature and, thus, whether govemmental immunity may be successfully invoked
pursuant to $ 52-557n (a) (2) (B), turns on the character of the act or omission complained of in
the complaint. . . . Accordingly, where it is apparent from the complaint that the defendants'
allegedly negligent acts or omissions necessarily involved the exercise ofjudgment, and thus,
necessarily were discretionary in nature, summary judgment is proper." (Citation omitted;
internal quotation marks omitted.) Grignano v. Milford,l06 Conn. App. 648, 654-55,943 A.zd
507 (2008).
In the present case, the plaintiffalleges that the defendant "caused or directed other
persons to delete and erase the hard drives of up to five of the computers owned by the fp]laintiff
[and] caused or directed other persons to remove 'backup' computer data storage tapes from the
T7
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 5/11
plaintiff s premises." The defendant has provided evidence in the form of an affidavit in which
he avers: "It was obvious we would not be able to review all the documents on our personal
computers during that brief period [after he lost the election and before the new mayor was to be
sworn in] . . . . The accumulation of e-mails, trivia, and other daily flotsam over the years was
immense. . . . During my administration . . . any document that was arguably needed in hard copy
was to be printed as soon as it was read and filed in a paper file in the appropriate office. . . .
There was no written policy on such matters [retention of electronic records when paper copies
were printed and filedl in effect atthattime and I used my discretion to decide that this [deleting
the hard drives on five office computers] was a reasonable way to prepare the computers for use
by the incoming staff." He fuither attests that he decided to "scrub" the hard drives on his
personal office computer and that of four of his aides. Regarding the backup tapes, he attests:
"The clean out of our City Hall offices was lengthy, laborious and tedious process, done under
deadline and in a state of near exhaustion. . . . The backup tapes for the subject computers ended
up in a box of my personal effects because someone (not me) threw them in there without my
knowledge."
The allegations of the complaint coupled with the defendant's evidence suggests that the
defendant's allegedly negligent acts or omissions necessarily involved the exercise ofjudgment,
and thus, necessarily were discretionary in nature. The burden is on the plaintiff to provide an
evidentiary foundation to demonstrate the existence of a genuine issue of material fact as to
whether the defendant misperformed a ministerial act. The plaintiff presented evidence that a
municipality must retain certain electronic records in order to comply with, for example, the
Freedom of Information Act. The plaintiff alleges that the defendant's acts "were not authorized
18
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 6/11
by the keeper of records." In both its response to the defendant's interrogatories and in its brief,
the plaintiff cites, without analysis, General Statutes $$ 1-211,l-277,1-282,11-8b and the city
of Derby ordinance $ 32-30 as examples of the defendant's mandatory obligations with regard to
electronic records.e
e Section 1-211 provides in part: "Any public agency which maintains public records in a
computer storage system shall provide, to any person making a request pursuant to the Freedom
of Information Act, a copy of any nonexempt data contained in such records, properly identihed,
on paper, disk, tape or any other electronic storage device or medium requested by the person, ifthe agency can reasonably make such copy or have such copy made. . . '"
Section l-277 provides in part: "(a) If a law requires that a record be retained, the
requirement is satisfied by retaining an electronic record of the information in the recordthat: (1)
Accurately reflects the information set forth in the record after it was first generated in its finalform as an electronic record or otherwise; and (2) Remains accessible for later reference. . . . (D
A record retained as an electronic record in accordance with subsection (a) of this section
satisfies a law requiring a person to retain a record for evidentiary, audit or like pu{poses, unless
a law enacted after Octob er 1,2002, specifically prohibits the use of an electronic record for the
specified purpose. (g) This section does not preclude a govemmental agency in this state fromspeci$ing additional requirements for the retention of a record subject to the agency'sjurisdiction, except as otherwise required by the State Librarian or the Public Records
Administrator in accordance with sections 11-8 and 11-8a."
Section l-282 provides in part: "Except as otherwise required by the State Librarian or
the Public Records Administrator in accordance with sections 11-8 and 11-8a, each governmentalagency in this state shall determine whether, and the extent to which, it will create and retain
electronic records and convert written records to electronic records."Section 11-8b, regarding the document retention policies of the state librarian, provides:
"All public records, as defined in section l1-8 or section 11-8a, or other such records, created by
public offices, are the property of the agency concerned and shall not be removed, destroyed,
mutilated, transferred or otherwise damaged or disposed of, in whole or in part, except as
provided by law or under the rules and regulations adopted by the State Library Board pursuant
io the provisions of chapter 54. Such public records shall be delivered by outgoing officials and
employees to their successors and shall not be otherwise removed, transferred, or destroyed
unlawfully."In exhibit one, the plaintiff included a copy of city of Derby ordinance $ 32-30. The
ordinance provides: ooOn and after the effective date hereof, any engineer, architect, land
surveyor, contractor or other person, partnership, or corporation employed or retained by the Cityor any agency or department thereof for the pu{pose of fumishing any design, drawing, survey'
*up,-proposal, plan, or other such document shall be required to convey a copy of the original
tfrereof to the City Clerk for retention in the permanent records of the municipality."
t9
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 7/11
The plaintiff has not shown what specific ministerial rule or regulation the defendant
violated through his conduct. While the statutes and the ordinance cited prescribe certain
conduct,'they do not delineate or establish any manner or mode of conduct such that they impose
the time, manner, and occasion of the performance with such certainty that nothing remains for
judgment or discretion. The plaintiff has failed to support its claim that the defendant
misperformed a ministerial act.
The plaintiff also argues that the defendant's acts and omissions cannot be afforded
immunity because they were not governmental acts performed within the scope of the
defendant's official duties wholly for the direct benefit of the public. The plaintiff maintains that
"[e]rasing data that is needed to effectively run the city is not conducting his employer's business
but rather abandoning his employet's business."
Neither the Supreme nor the Appellate Court has had occasion to determine when an
employee, officer or agent is "acting within the scope of his employment or offrcial duties" as
that phrase is used in g 52-557n (a) (1) (A). The Appellate Court has noted, however:
"Comment g to $ 895D of the Restatement (Second) of Torts (1979), provides in relevant part:
An immunity protects an officer only to the extent that he is acting in the general scope of his
official authority. When he goes entirely beyond it and does an act that is not permitted at all by
that duty, he is not acting in his capacity as a public officer or employee and he has no more
immunity than a private citizen." (lnternal quotation marks omitted.) Gerstenzangv. Glenville
News & Florist, Inc.,7l Conn. App. 531, 534-35,802 A.2d230 (2002). In that case, the plaintiff
claimed "that the court acted improperly in refusing to instruct the jury on ultra vires acts ' . .
[because if] the instruction were given, it would have allowed the jury to find that the defendant
20
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 8/11
had engaged in an ultra vires act, i.e., an act beyond the scope of his authority as commissioner of
public works. Therefore, the doctrine of qualified immunity for discretionary acts of municipal
employees would not apply to shield the defendant from liabilif." Id., 534. The court held that
a reasonablejury could not have found that the defendant had acted outside the scope ofhis
authority as a municipal agent when he removed from private property a planter alleged to be a
highway obstruction and the trial court properly refused to instruct the jury on ultra vires acts.
rd.,537.
In the present case, the defendant attests in his affidavit: "When I assumed the office of
Mayor in1997. . . there was a single desktop computer available for the use of the Mayor; Iinherited it from [the] outgoing Mayor . . . . When I began using the machine, it had been purged
of its documents . . . ." He attests further that in his belief, deleting the hard drives on five office
computers "was a reasonable way to prepare the computers for use by the incoming staff'and
that, during the clean out of the city hall offrces, "[t]he backup tapes for the subject computers
ended up in a box of [his] personal effects because someone (not me) threw them in there
without [his] knowledge." To raise a triable issue of fact, the plaintiff must present some
evidence which tends to show that the defendant went entirely beyond the general scope of his
authority as mayor and that his acts were not permitted at all by that duty.
The plaintiff presents evidence in the form of an affidavit by Staffieri in which he attests
that when he took office on December 3, 2005: "the backup system had failed and did not store
the back up data from sometime before my arrival . . . a number of computers were not
functioning . . . I could not locate [ten] additional computer data backup tapes and could not
reinstate the backup process . . . [and] that I immediately engaged the services of the staff to
2l
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 9/11
locate the data tapes." He attests further that "on a date after Decemb et 3 , 2005,I was informed
that the backup tapes were in the possession of the [defendant]." Finally, he avers that he has
knowledge of the "confidential and public information such as tax records, accounts, budgets,
personnel records, payroll records and other dalathatis electronically stored on the 'back up'
tapes for the [c]ity of DerbY."
The plaintiff also presents a sworn statement by Dabate, a "computer technician for
Connecticut Computer Services." He states: "Our company is contracted by the city of Derby to
install and maintain the computer network in City Hall. . . . On [December 2,2005]. ' ' I gave
[the defendant and Lutz] another option of using a wipe utility which would over-write the data
and make it unrecoverable. . . . The plan was to continue to delete the user accounts, email, and
personal network folders. I was then to run a Kill Disk wiping utility on [five] personal
computers . . . . After the program was run and the systems were wiped, I was scheduled to return
on Monday moming and reimage the machines. This could bring [the machines] back to their
base state . . . and allow us to set new users and passwords for the next staff." He also states that
,,afterl made all the changes on the system, [I] placed the blank [back up] tape into the drive so
the system could be able to backup the next time it was scheduled to run. . . . [This] would not
give the ability to recover anl.thing that was changed before the backup." He did not know who
ended up with the other backup tapes, but only saw the defendant andLutz in possession of them
that day. Maruccio states that,"at[the defendant's] direction and in the presence of [Lutz]," he
..used a high power video / audio tape eraser to erase ten back up tapes." Lutz states that Dabate
ran the ,,Killz,, software at the direction of the defendant and that Maruccio "had brought in a
device from home . . . [to] clear the tapes" at the direction of the defendant. Lutz also states that
22
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 10/11
he did not take the tapes when he left that day.
The plaintiff argues that the deletion of the data amounts to the defendant's abandoning
the business of his employer, the city of Derby. Staffieri attests that "confidential and public
information such as tax records, accounts, budgets, personnel records, payroll records and other
data that is electronically stored on the 'back up' tapes for the [c]ify of Derby" and presents
evidence that those tapes were erased. The defendant attested that while he was in office, o'any
document that was arguably needed in hard copy was to be printed as soon as it was read and
filed in a paper file in the appropriate office." The plaintiff has not offered any evidence to
contradict this. Both parties acknowledge that the defendant caused the hard drives of the five
computers to be "scrubbed." Both parties acknowledge that the defendant had possession of the
tapes after he left offtce. These facts are not in dispute.
Discretionary act immunity exists to allow a goveffrment offtcer, such as a mayor,
freedom to exercise judgment and discretion in his official functions. The defendant has
presented evidence that as part of the transition from one administration to the next, it was within
the offrcial function of the outgoing mayor to clear out his office, and that this included deleting
some computer records. Nothing in the evidence that the plaintiff has submitted raises a triable
issue of fact as to whether the deletion of the hard drives or backup tapes was part of an outgoing
mayor's routine when leaving offrce. The plaintiff has not met its burden of raising a triable
issue of fact as to whether the acts and omissions alleged to be negligent went beyond the general
scope of the defendant's authority as mayor.
L)
8/8/2019 Bellis Decision
http://slidepdf.com/reader/full/bellis-decision 11/11
Accordingly, the defendant's motion for summary judgment on the ground that the
defendant has discretionary act immunity for the acts and omissions alleged to be negligent is
granted.
Conclusion
For the forgoing reasons, the defendant's motion for summary judgment is granted on the
ground that the defendant has discretionary act immunity for the acts and omissions alleged to be
negligent. t
BELLIS, J.
24