Bellis Decision

8/8/2019 Bellis Decision

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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."

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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.

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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,

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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

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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

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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."

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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

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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

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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

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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)



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.

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