text:
    STATE OF CONNECTICUT v. GEORGE DYSON
    (15185)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.

      Argued May 30
    officially released August 13, 1996

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   CALLAHAN, J.

The defendant, George Dyson, appeals from his conviction, after a jury trial, of kidnapping in the first degree as an accessory in violation of General Statutes §§ 53a-92 (a) (2) (C) and 53a-8 (a), and robbery in the first degree as an accessory in violation of General Statutes §§ 53a-134 (a) (3) and 53a-8 (a). The defendant claims that: (1) the trial court improperly refused, in violation of his right to due process of law under the federal constitution, to instruct the jury that it must unanimously agree on the form of accessorial liability set forth in § 53a-8 (a) for which the defendant was to be held criminally liable; (2) the evidence presented at trial was insufficient to warrant the trial court’s jury instruction on each of the five allegedly different forms of accessorial liability; and (3) § 53a-92 (a) (2) (C) is unconstitutionally vague on its face and as applied to his conduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early evening hours of August 27,1992, the victims, John Bates and Andrew Dowd, set out in Bates’ pickup truck to do some fishing at the reservoir in the town of Cheshire. The spot where the victims intended to fish is accessible by a single lane dirt road that intersects with Route 68 near the border of the towns of Cheshire and Wallingford. After driving approximately 200 yards down the dirt road, the victims came upon a clearing, known as the “sand pit.” As they approached the area, each noticed a campfire to the left and, as a result, Bates stopped the truck.

At that point, the defendant and a companion, James Mesite, walked out of a wooded area that was to the right of the clearing and approached the truck. The victims remained seated in the vehicle. Mesite walked to the driver’s side of the truck, while the defendant went to the passenger side. Mesite immediately began to act in an abusive and threatening manner toward Dowd and Bates, informing them that he had recently been released from prison, that he and the defendant were members of the Diablos motorcycle gang, that the area in which the victims had intended to fish belonged solely to the Diablos gang and that the victims had no business being in that area. The defendant heard and acquiesced in Mesite’s statements.

Thereafter, Mesite reached through the truck’s open window on the driver’s side and attempted to grab the keys from the ignition. Reacting to Mesite’s intrusion, Bates forcibly pushed away Mesite’s hand. Mesite then jerked open the door of the truck, grabbed Bates and began shaking him, attempting to pull him from behind the wheel. During this time, the defendant, who was standing very close to the passenger side door, informed Bates that, even if he did not give Mesite the keys, the defendant and Mesite were going to steal the truck. The victims then exited the truck. After they did so, Mesite again threatened Bates, yelling, “I’m going to kill you,” while at the same time challenging him to fight. The defendant remained by the passenger side door, standing in a threatening manner, and offering no objections to Mesite’s actions or statements.

At one point during this interchange, Bates attempted to reenter the truck in order to leave the area. Mesite, however, prevented Bates from reentering the truck and repeatedly attempted to slam the door on Bates. Thereafter, in an effort to extricate themselves from the secluded wooded area of the reservoir so that they might obtain some help, Dowd suggested that he and Bates take Mesite and the defendant to a bar. Mesite and the defendant agreed. Mesite, however, apparently suspicious of the victims’ intentions, informed Bates that he was going to drive the truck. Bates immediately voiced his objection, but, after the defendant instructed Bates to let Mesite drive, Bates relented and allowed Mesite to drive. All four men then proceeded to get into the truck, with Mesite occupying the driver’s seat and Bates in the passenger seat, and the defendant and Dowd seated side by side in the bed of the truck.

When leaving the sand pit, Mesite attempted to drive the truck directly through the campfire, which had not been extinguished. Bates, realizing that Mesite was heading for the campfire, pulled the truck’s emergency brake and informed the defendant that he was not going to allow Mesite to drive the truck. The defendant again intervened and, in an aggressive tone, told Bates to “[l]et [Mesite] drive the truck.” Bates again relented, and Mesite sped up the dirt road and turned onto Route 68, heading toward Wallingford.

On Route 68, Mesite began to drive erratically, recklessly switching lanes and driving toward oncoming vehicles. As they approached an intersection, which was located approximately one-half mile from their starting point, Bates grabbed the steering wheel, pulled the emergency brake and removed the keys from the ignition. He then informed Mesite that, because of his reckless driving, he would no longer let him drive the truck. Initially, Mesite reacted in an aggressive manner and refused Bates’ suggestion that Bates drive. The defendant again intervened and told Mesite to let Bates drive. Mesite obeyed the defendant’s directive without objection, and seated himself in the passenger’s seat, while Bates took the wheel. At this point, Dowd attempted to reason with the defendant and explained that he knew the leader of the Diablos gang. The defendant, however, was unimpressed and informed Dowd that that did not mean anything to him, and that he and Mesite were going to continue with their chosen course of action.

Thereafter, Bates drove wherever Mesite directed him. After driving for a short while, Bates renewed the suggestion that they go to a bar. After receiving agreement from Mesite, Bates pulled into the parking lot of a nearby cafe, which was located on Route 68. As Bates drove the truck into the lot, Mesite, dissatisfied with Bates’ choice, began yelling at Bates that the bar was a “James Gang” bar and that they were not going to go in there because he and the defendant were members of the Diablos gang. Mesite further stated that he and the defendant were going to kill Bates and Dowd because Mesite believed them to be members of the James gang. As a result of Mesite’s statements, Bates quickly left the parking lot. Mesite, however, apparently still upset over Bates’ choice of bars, informed Bates and Dowd that “[w]e’re going to take you to the [Diablos gang] clubhouse, [and] we’re going to lock you up and torture you for a couple of weeks.”

Thereafter, as Bates drove the truck, Mesite demanded, through the open slider window between the truck’s cab and bed, that Dowd give him his wallet. When Dowd refused, Mesite asked the defendant for a weapon. The defendant then inquired whether he wanted the knife or the “nine,” a reference to a nine millimeter handgun. When Mesite indicated that he preferred the knife, the defendant handed it to him through the slider. Mesite then put the knife to Bates’ face and throat, and repeatedly threatened to cut his throat and to kill him. At the same time, the defendant removed a gun from his right side and, holding it down low by his side, pointed it at Dowd. As they continued to drive, Mesite indicated to Dowd that the defendant was going to shoot and kill him.

When they stopped at a red light while southbound on Route 5 in Wallingford, Dowd was able to get Bates’ attention via the side view mirror, and, after making eye contact with Bates, reached over the side of the truck bed and pulled the tailgate handle. Dowd then rolled out of the truck onto the road and ran to a nearby restaurant. Mesite immediately put the knife to Bates’ face and instructed him to drive into the restaurant parking lot, which Bates did. Once there, Bates was able to distract Mesite momentarily, grab his arm, smash it against the windshield, open the truck door and flee. He then ran inside the restaurant and told an employee to call the police. Mesite and the defendant then fled in the truck, but were eventually apprehended in the town of Guilford after a lengthy police chase.

In a substitute information, the state charged the defendant with two counts of kidnapping in the first degree, one count of robbery in the first degree and one count of larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (l) and 53a-8 (a). The jury found the defendant guilty of both counts of kidnapping and the sole count of robbery, but acquitted him of larceny. Thereafter, the court imposed a total effective sentence of twenty-nine years imprisonment, execution suspended after twenty-four years, and five years probation. Other facts will be recounted as necessary.

I

The defendant first claims that, in violation of his right to due process of law guaranteed by the fourteenth amendment to the federal constitution, the trial court improperly failed to require a unanimous verdict with regard to his accessorial liability. Specifically, the defendant contends that the trial court was constitutionally required to give a specific unanimity instruction with regard to each allegedly different theory of accessorial liability set forth in § 53a-8 (a). We are not persuaded.

The following facts are relevant to this claim. In instructing the jury, the trial court initially explained that the defendant was being prosecuted as an accessory to kidnapping, robbery and larceny and then read the text of § 53a-8 (a) to the jury. The court further explained that “ [t]he accessory statute does not connect the various acts as specified by the word ‘and’ but instead separates them by the word ‘or.’ The other person is an accessory to the commission of a crime if acting with the mental state required, that is the criminal intent required by statute for the commission of that crime, he solicits or requests or commands or importunes or intentionally aids another person in the commission of the crime.” The court then defined each of the alternatives set forth in § 53a-8 (a). During the remainder of its charge, the trial court gave the jury six general unanimity instructions.

In State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991), we set forth a multipartite test to determine whether a trial court’s omission of a specific unanimity charge warrants a new trial. “We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter. Even if the instructions at trial can be read to have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged.” Id., 619-20; see also State v. Reddick, 224 Conn. 445, 453, 619 A.2d 453 (1993).

The defendant claims that the trial court’s instructions to the jury sanctioned a nonunanimous verdict as to his accessorial liability. In support of that claim, he argues that, although the trial court gave several general unanimity instructions, the court did not expressly inform the jury that it must unanimously agree on one of the particular alternatives set forth in § 53a-8 (a) as the basis for its conclusion that the defendant was an accessory. The defendant maintains, therefore, that, based on the trial court’s use of the disjunctive in its instructions explaining § 53a~8 (a) to the jury, the jurors could have disagreed on the particular statutory alternative applicable to the defendant’s conduct, yet collectively could have agreed that he was an accessory to the kidnapping and robbery of the victims.

As we have previously stated, “the absence of language expressly sanctioning a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test.” State v. Reddick, supra, 224 Conn. 454; see also State v. Jennings, 216 Conn. 647, 661-64, 583 A.2d 915 (1990); State v. Anderson, 211 Conn. 18, 35, 557 A.2d 917 (1989). Our review of the record fails to reveal a jury instruction that expressly sanctioned a nonunanimous verdict. The court, to the contrary, provided several general unanimity instructions to the jury. We do not, as the defendant would have us do, interpret the trial court’s charge as implicitly sanctioning nonunanimity. Although the court did not give a specific unanimity instruction regarding the statutory alternatives, we cannot interpret the court’s silence as sanctioning a nonunanimous verdict. See State v. Reddick, supra, 454.

Even if we were to agree with the defendant that the court sanctioned a nonunanimous verdict, we have previously held that the § 53a-8 (a) alternate theories of liability are not conceptually distinct. See State v. Smith, 212 Conn. 593, 563 A.2d 671 (1989). In Smith, we concluded that “the alternative bases of liability under § 53a-8 [a] are practically indistinguishable. They represent slightly different characterizations that can be given the defendant’s particular conduct, all of which make a defendant an accessory to a crime. Therefore, the terms of § 53a-8 [a] are not conceptually distinct. Accordingly, the trial court did not err by failing to give a specific unanimity charge on each theory of liability under the statute.” Id., 606-607.

We conclude, therefore, that the trial court’s instruction to the jury did not violate that defendant’s federal constitutional right to a unanimous verdict.

II

The defendant next claims that there was insufficient evidence for the trial court to instruct the jury on each of the statutory alternatives for accessorial liability set forth in § 53a-8 and that, therefore, the trial court’s instruction on each alternative violated his constitutional right to due process of law and requires a new trial. Because the defendant has failed to provide any independent analysis under the state constitution, we limit our analysis to the federal constitution. State v. Barnes, 232 Conn. 740, 744 n.4, 657 A.2d 611 (1995).

In the trial court, the defendant “object[ed] to any instruction on the statutory alternatives not [sic] supported by the evidence, i.e., ‘solicits, requests, commands, importunes’ ” because, in his view, there was no evidentiary basis for those alternatives. The court rejected the defendant’s request, concluding that, based upon the evidence, the jury could reasonably infer that the defendant acted in a manner consistent with each statutory alternative. The defendant renews his claim on appeal. We are not persuaded.

At oral argument, the defendant conceded that, based upon our recent decision in State v. Chapman, 229 Conn. 529, 539-44, 643 A.2d 1213 (1994), if a statute contains alternate theories of liability, a jury’s verdict must be affirmed if there is sufficient evidence to support a finding of guilty on at least one theory of liability. In Chapman, we relied on the decision of the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), and concluded that a defendant’s constitutional right to due process of law is not violated when the trial court charges the jury on a factually unsupported basis of criminal liability provided that, in addition to that instruction, the trial court instructs the jury on a factually supported basis.

Our review of the evidence persuades us that there was sufficient evidence for the jury to have concluded that the defendant intentionally aided Mesite in the commission of the robbeiy and the kidnapping and, therefore, that he was properly convicted as an accessory. “In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Mejia, 233 Conn. 215, 223-24, 658 A.2d 571 (1995).” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996).

The defendant had told Bates that if he did not give Mesite the keys to his truck, the defendant and Mesite would simply steal the truck anyway. The defendant also intervened when Bates objected to Mesite’s driving the truck from the area of the sand pit, commanding Bates to permit Mesite to drive. In addition, the defendant provided Mesite with the knife that he used to threaten Bates repeatedly while Bates drove the occupants in search of a bar. The defendant also pointed a gun at Dowd as the two sat side by side in the bed of the truck during the drive. The defendant never voiced any disagreement with Mesite regarding either his repeated threats to kill the victims or his statement that he and the defendant were going to take the victims to the Diablos gang clubhouse and torture them for two weeks. The defendant also fled from the restaurant parking lot with Mesite in Bates’ truck. We conclude, therefore, that there was sufficient evidence for the jury to find that the defendant intentionally aided Mesite in the commission of the kidnapping and robbery.

Ill

The defendant next claims that, in violation of the fourteenth amendment to the federal constitution, § 53a-92 (a) (2) (C) is unconstitutionally vague on its face and as applied to his conduct. We disagree.

Our analysis is guided by certain fundamental principles of constitutional vagueness jurisprudence. “Under the requirements of due process of law mandated by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid. ... [A] statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. . . . State v. Linares, 232 Conn. 345, 354, 655 A.2d 737 (1995); State v. Williams, 205 Conn. 456, 469-70, 534 A.2d 230 (1987).” (Citations omitted; internal quotation marks omitted.) Benjamin v. Bailey, 234 Conn. 455, 483, 662 A.2d 1226 (1995).

“In a facial vagueness challenge, we . . . examine the challenged statute to see if it is impermissibly vague in all of its applications. A statute that is impermissibly vague in all its applications is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. . . . Such a provision simply has no core.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Indrisano, 228 Conn. 795, 804, 640 A.2d 986 (1994).

To prevail on his facial vagueness claim, therefore, the defendant must demonstrate that the statute has no core meaning. “Put another way, a determination that the statute is not vague with respect to at least one application will defeat [his] facial challenge. This burden is augmented by our strong presumption . . . in favor of a statute’s constitutionality. . . . State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991) (Citations omitted.) Benjamin v. Bailey, supra, 234 Conn. 484.

Section 53a-92 (a) provides in relevant part that “[a] person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to . . . (C) terrorize him or a third person . . . .” (Emphasis added.) The defendant contends that that section is simply a restatement of General Statutes § 53a-94 (a), which provides that “[a] person is guilty of kidnapping in the second degree when he abducts another person.” In the defendant’s view, because every kidnapping induces a substantial amount of fear on the part of the abductee, the perpetrator of the kidnapping necessarily possesses the intent to terrorize. The defendant maintains, therefore, that the intent to terrorize element of § 53a-92 (a) (2) (C) is redundant and merely restates an element that accompanies every kidnapping and, as such, does not provide fair and adequate notice of the more culpable conduct that it seeks to proscribe. We disagree.

We have not yet had occasion to interpret the “intent to terrorize” element of kidnapping in the first degree. We have, however, previously stated that “a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the [defendant] that his conduct is proscribed.” (Internal quotation marks omitted.) State v. Indrisano, supra, 228 Conn. 803; see also State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). In addition, it is well established that “[i]f a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary. General Statutes § 1-1 (a); see also Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979) . . . .” (Citations omitted.) State v. Indrisano, supra, 809-10. Webster’s Third New International Dictionary (1966) includes among its definitions of “terrorize” — “to fill with terror or anxiety. ” In addition, terror is defined, in part, as a “state of intense fright or apprehension; stark fear.”

We are persuaded that § 53a-92 (a) (2) (C) has a core meaning sufficient to sustain it against a facial attack because it provides adequate notice of the type of conduct that it seeks to proscribe. Section 53a-92 (a) (2) (C) criminalizes conduct in which the peipetrator not only abducts an individual, but in addition thereto engages in conduct specifically intended to cause the abductee or a third person to experience “intense . . . stark fear.” While it seems likely that every kidnapping would induce some degree of fear on the part of the abductee, not every perpetrator possesses the specific intent to terrorize his victim. The legislature has recognized that distinction and has criminalized the conduct of the kidnapper that is intended to cause terror for its own sake. “Our adoption of this interpretive gloss provides a sufficient core of meaning to remedy any facial vagueness that might otherwise exist.” Benjamin v. Bailey, supra, 234 Conn. 487.

The defendant argues further that even if we were to reject his facial vagueness challenge, § 53a-92 (a) (2) (C) is vague as applied to his conduct because he claims that he is being punished solely because of Mesite’s assertion that he and Mesite were members of the Diablos motorcycle gang. He contends that the statute is vague as applied because people must now be uncertain as to which of their associations might support an inference of intent to terrorize. We disagree. Contrary to the defendant’s contention, the state adduced ample evidence, in addition to Mesite’s statement concerning the Diablos gang, that the defendant’s conduct violated § 53a-92 (a) (2) (C). Furthermore, the statute provided ample warning that his conduct was prohibited. The defendant is not being punished solely for Mesite’s assertion of association but because the evidence viewed in its entirety manifested an intent to terrorize. Moreover, it is only when an association is flaunted with the specific intent to terrorize that it becomes relevant to the proof of the elements of § 53a-92 (a) (2) (C). Because intent to terrorize is a necessary element of the crime, the statute is not vague as applied. See State v. Cavallo, 200 Conn. 664, 672, 513 A.2d 646 (1986). We conclude, therefore, that § 53a-92 (a) (2) (C) is not vague as applied to the defendant’s conduct.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant initially appealed from the judgment of conviction to the Appellate Court,. The appeal, however, was transferred to this court pursuant to Practice Book § 4027.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-92 provides in relevant part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and . . . (2) he restrains the person abducted with intent to . . . (C) terrorize him or a third person . . . . ”
      General Statutes § 53a-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 ... he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       Bates and Dowd testified that they had known, based upon newspaper reports, that the Diablos gang was a local motorcycle gang with an unsavory reputation.

       Bates and Dowd knew that the James gang was a local motorcycle gang that was a rival of the Diablos gang.

       General Statutes § 53a-123 provides in relevant part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The properly consists of a motor vehicle, the value of which exceeds five thousand dollars . . . .”

       The trial court sentenced the defendant to concurrent terms of fourteen years of imprisonment on each kidnapping count to be served consecutively with a term of fifteen years of imprisonment, execution suspended after ten years, five years probation, on the robbery count.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
      The defendant has not raised a separate claim under the state constitution. We, therefore, limit our analysis to the federal constitution. State v. Faust, 237 Conn. 454, 468 n.16, 678 A.2d 910 (1996).

       The court stated that “[t]o solicit is to try to persuade someone to commit the crime. To request is to ask. To command is to order. To importune is to ask repeatedly. To aid is to help or assist.”

       During its instructions to the jury, the court stated, for example, that “[i]f you find the defendant guilty of kidnapping in the first degree, you stop right there. If, however, you unanimously find the defendant not guilty of kidnapping first degree, then you consider kidnapping second degree.” (Emphasis added.) The trial court further instructed the jury that “[t]he verdicts you render must be unanimous whether they be guilty or not guilty.” (Emphasis added.)

       The defendant has not cited State v. Smith, supra, 212 Conn. 593, in his brief and, as a result, has not articulated any reason for us to reconsider this conclusion.

       In a footnote of his brief, the defendant claims that the trial court’s instruction violated his right to due process under the state constitution. That, however, is the extent of his state constitutional analysis. The defendant does not provide any independent analysis under the state constitution; nor, in fact, does he even mention the article or section number of our state constitution’s due process clause. Mere passing reference to the state constitution in a footnote does not suffice to invoice review under the state constitution.

       We note that the defendant did not request that the trial court refrain from instructing the jury on the “intentionally aided” alternative for accessory liability, nor did he specifically object to that portion of the instruction after it had been given.

       A person can, for example, kidnap another with the intent to collect a ransom, without having the specific intent to terrorize or cause intense fright in the abductee or a third person.

       We note that at oral argument the defendant acknowledged that he had not raised a challenge to the constitutionality of § 53a-92 (a) (2) (C) under tlie first amendment to the federal constitution.


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    MATTHEW W. DOTY ET AL. v. STEVE MUCCI
    (15380)
    Callahan, Berdon, Norcott, Katz and Palmer, Js.
    Argued May 2
    officially released August 13, 1996

      Lori Welch-Rubin, with whom was Joseph R. Mirrione, for the appellants (plaintiffs).

      Mark A. Milano, for the appellee (defendant).
   NORCOTT, J.

The sole issue in this appeal is whether the trial court properly determined that the claim filed by the plaintiffs, Matthew W. Doty and Denise Doty, for reimbursement of certain containment costs pursuant to General Statutes § 22a.-4.52, was time barred. The plaintiffs appeal from the trial court’s grant of summary judgment in favor of the defendant, Steve Mucci, doing business as Steve’s Oil Burning Service. We affirm the judgment of the trial court.

For the purposes of this appeal, the following facts are not in dispute. On September 17,1988, the defendant installed an oil tank at the residence of Peter Silver in Sandy Hook. On June 21, 1991, the plaintiffs purchased the property from Silver. In July, 1991, the plaintiffs discovered that the well on their property had been contaminated. On June 23, 1993, the plaintiffs filed a claim against the defendant alleging that on September 17, 1988, he had negligently installed and filled an oil tank on the property, thereby causing the discharge of 200 gallons of oil. As a result, the plaintiffs alleged that their well was contaminated with petroleum hydrocarbons. The plaintiffs further alleged that they had incurred and would continue to incur costs to “obtain or otherwise mitigate the effects of the contamination.” They sought, pursuant to § 22a-452, reimbursement from the defendant of the “reasonable cost expended ... to contain, remove or otherwise mitigate the contamination.”

In his amended answer to the plaintiffs’ complaint, the defendant raised a special defense alleging that the plaintiffs’ claim was barred by the applicable statute of limitations, namely, either General Statutes § 52-577 or General Statutes § 52-584. Subsequently, the defendant moved for summary judgment on the basis of the special defense. In support of his motion, the defendant argued that: (1) because the plaintiffs’ claim sounded in negligence, it was governed by § 52-584, pursuant to which it was time barred; or (2) alternatively, the claim was governed by § 52-577, pursuant to which it was also time barred. The plaintiffs argued that the applicable statute of limitations for claims brought under § 22a-452 was General Statutes § 52-577c (b), pursuant to which their claim was timely.

Thereafter, the trial court granted the defendant’s motion for summary judgment. The trial court did not determine which of the statutes of limitations advanced by the parties was applicable, reasoning that “[Regardless of which statute of limitations applies to actions brought pursuant to General Statutes § 22a-452, the action [in the present case] must have been brought no later than September 17, 1991,” and that the plaintiffs’ claim, having been brought after that date, was time barred. The plaintiffs appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the plaintiffs claim that the trial court improperly determined that their claim was barred by the statute of limitations. Specifically, the plaintiffs argue that claims brought pursuant to § 22a-452 are governed by § 52-577c (b) and that, because their claim was brought within two years of their discovery of the contamination, their claim was timely. The plaintiffs appear to concede that if their claim does not fall within § 52-577c, it is time barred under either § 52-577 or § 52-584 because the defendant’s actions that form the basis of their claim occurred more than three years before their claim was brought.

The defendant offers several arguments in support of his claim that the trial court properly granted summary judgment on the ground that the plaintiffs’ claim is time barred. First, he argues that § 52-577c is not applicable to claims brought for reimbursement of containment costs pursuant to § 22a-452 because such claims do not constitute claims for “damages for . . . property damage” within the meaning of § 52-577c or § 52-584 and, therefore, that § 52-577 is the applicable statute of limitations, pursuant to which the plaintiffs’ claim is untimely. Alternatively, the defendant argues that, if claims for reimbursement pursuant to § 22a-452 are properly considered claims for property damage, § 52-584 is the applicable statute of limitations for such claims because they are grounded in negligence, and that the plaintiffs’ claim is untimely under § 52-584. Finally, the defendant argues that, even if § 52-577c applies to claims brought pursuant to § 22a-452, the plaintiffs’ claim does not fall within it because § 52-577c incorporates, by reference to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); 42 U.S.C. § 9601 et seq.; the exclusion of petroleum from the definition of hazardous substances, and the plaintiffs’ claim alleges petroleum contamination. Accordingly, he argues that the plaintiffs’ claim falls within either § 52-577 or § 52-584, and that under both statutes, the claim is time barred.

On the basis of our review of the record, we agree with the defendant that, even if the plaintiffs are correct that § 52-577c applies to claims brought pursuant to § 22a-452, the plaintiffs’ claim falls within the petroleum exclusion, and is therefore, outside the ambit of § 52-577c. Accordingly, their claim is time barred.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ...” (Internal quotation marks omitted.) Id., 745. “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). Summary judgment maybe granted where the claim is barred by the statute of limitations. See Daily v. New Britain Machine Co., 200 Conn. 562, 566-70, 512 A.2d 893 (1986); Burns v. Hartford Hospital, 192 Conn. 451, 472 A.2d 1257 (1984) (summary judgment affirmed on ground that suit barred by statute of limitations).

Section 52-577c (b), by its express terms, governs actions “to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment . . . .” “Hazardous pollutant” is defined in the statute as “any designated, specified or referenced chemical considered to be a ‘hazardous substance’ under Section 101 (14) of [CER-CLA] 42 U.S.C. § 9601 (14) . . . .” General Statutes § 52-577c (a) (4). The definition of “hazardous substance” in CERCLA provides in relevant part: “The term [hazardous substance] does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph . . . .” 42 U.S.C. § 9601 (14) (1994). This provision is commonly referred to as the petroleum exclusion. Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801, 803 (9th Cir. 1989).

At oral argument, the plaintiffs conceded that § 52-577c incorporates the petroleum exclusion and that, to the extent that their claim is to recover costs for containing or mitigating petroleum discharge, it falls within the statutory exclusion and outside the scope of the extended statute of limitations of § 52-577c. The plaintiffs contend, however, that contamination attributable to an oil tank “bottom,” that is sludge that forms in the bottom of a tank in which oil is stored by the settling of water and suspended solids in the oil; see Cose v. Getty Oil Co., 4 F.3d 700, 702 (9th Cir. 1993); does not fall within the petroleum exclusion. See id.; United States v. Western Processing Co., 761 F. Sup. 713 (W.D. Wash. 1991) (oil tank bottom sludge disposed of by oil company did not come within CERCLA petroleum exclusion). They further argue that it is “possible” that the contamination of their well was due in some part to sludge that could have been released when oil was spilled by the defendant and, therefore, there exists a question of fact as to whether the exclusion for petroleum in § 52-577c (b) applies to their claim and, consequently, as to whether the claim is time barred. We disagree.

“In evaluating the propriety of a summary judgment, we are confined to an examination of the pleadings and affidavits of the parties to determine whether (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law. ’ ’ (Internal quotation marks omitted.) Miller v. United Technologies Corp., supra, 233 Conn. 745. Even if we were to assume that the petroleum exclusion is properly interpreted not to include contamination due in part to the release of sludge from the bottom of the plaintiffs’ oil tank, and even if we were to read the pleadings generously, there is simply no basis in the allegations or any evidence in the record to raise a question of fact regarding the source of the contamination of the plaintiffs’ well. The plaintiffs’ complaint states only that their well had become contaminated with petroleum hydrocarbons as a result of the defendant’s having caused, in connection with his installation of and filling of an oil tank on the property, the discharge of 200 gallons of oil into the groundwater. The complaint fails to allege that the contamination of the well was due to sludge in addition to the oil. The plaintiffs also failed to allege that the contamination was due to sludge either in response to the defendant’s special defense or by way of affidavit. “It is not enough . . . for the opposing party merely to assert the existence of ... a disputed issue.” Burns v. Hartford Hospital, supra, 192 Conn. 455. Rather, the party opposing summary judgment “must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ...” (Internal quotation marks omitted.) Miller v. United Technologies Corp., supra, 745. On this record, there is nothing from which a fact finder could conclude that there is a sufficient foundation to give rise to a question of fact as to whether the contamination was attributable to sources other than the spilled petroleum. We conclude, therefore, that as a matter of law, the plaintiffs’ claim falls within the petroleum exclusion and outside the scope of § 52-577c. Accordingly, summary judgment was properly granted in favor of the defendant on the ground that the plaintiffs’ claim is time barred.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 22a-452 provides: “Reimbursement for containment or removal costs. Liability for certain acts or omissions, (a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corpora-1ion for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.
      “(b) No person, firm or corporation which renders assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous materials, other than a discharge of oil as defined in section 22a-457b, to the surface waters of the state, or which assists in preventing, cleaning-up or disposing of any such discharge shall be held liable, notwithstanding any other provision of law, for civil damages as a result of any act or omission by him in rendering such assistance or advice, except acts or omissions amounting to gross negligence or wilful or wanton misconduct, unless he is compensated for such assistance or advice for more than actual expenses. For the purpose of this subsection, ‘discharge’ means spillage, uncontrolled loss, seepage or filtration and ‘hazardous materials’ means any material or substance designated as such by any state or federal law or regulation.
      “(c) The immunity provided in this section shall not apply to (1) any person, firm or corporation responsible for such discharge, or under a duty to mitigate the effects of such discharge, (2) any agency or instrumentality of such person, firm or corporation or (3) negligence in the operation of a motor vehicle.”

       Subsequently, this case was consolidated with the case of Doty v. Silver, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 92 02923192 S.

       General Statutes § 52-577 provides: “Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”
      General Statutes § 52-584 provides: “Limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-577c provides in relevant part: “limitation of action for damages caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant. . . . (b) Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered. . . .”

       Before the trial court, the defendant argued in response that, even if § 52-577c applied to the plaintiffs’ claim, the claim was nevertheless time barred because § 52-577c (b) incorporates a requirement that claims be brought within three years from the act or occurrence upon which the claim is based. The defendant does not advance this interpretation of § 52-577c (b) on appeal.

       Because we conclude that the plaintiffs cannot prevail even if, as they contend, § 52-577c applies to claims brought under § 22a-452, we do not reach the issue of whether § 52-577c is the applicable statute of limitations for such claims. See State v. Williams, 195 Conn. 1, 15 n.11, 485 A.2d 570 (1985) (court will not address issues the resolution of which is purely academic).

       “Hazardous chemical substance or mixture” is defined as “any chemical substance or mixture for which there is a federal standard, including any law, requirement, tolerance, prohibition, action level or similar legal authority adopted by an agency pursuant to federal law, including any such standard or legal authority adopted by a state or local government pursuant to federal law, generally intended to prevent, reduce or mitigate the risk of a disease or class or type of diseases to an individual or individuals resulting from exposure to such chemical substance or mixture . . . .” General Statutes § 52-577C (a) (3).

       The defendant argues that, even if the contamination was due in part to sludge from the bottom of the plaintiffs’ oil tank, their claim would still fall within the petroleum exclusion because the sludge is composed of materials indigenous to petroleum. See Wilshire Westwood Associates v.
        Atlantic Richfield Corp., supra, 881 F.2d 801; Southern Pacific Transportation Co. v. California (CalTrans), 790 F. Sup. 983, 984 (C.D. Cal. 1991). For the purposes of this appeal, however, we need not decide that issue.


author: BERDON, J.

text:
    JAMES FENNELL ET AL. v. CITY OF HARTFORD ET AL.
    (15389)
    Callahan, Borden, Berdon, Norcott and Palmer, Js.

      Argued June 4
    officially released August 13, 1996

      Albert J. McGrail, with whom, on the brief, was Shelley A. Gilbert, for the appellants-appellees (plaintiffs).

      Thomas R. Cox, assistant corporation counsel, for the appellees-appellants (defendants).
   BERDON, J.

This appeal raises issues regarding whether supervisory police officers are entitled to certain pension and retirement benefits with respect to accrued sick leave and service credits for military time. The plaintiffs, James Fennell, Arthur A. Williams, Jr., and William C. Bracken, three retired police officers of the city of Hartford, brought an action in twelve counts against the defendants, the city of Hartford (city) and the pension commission of the city of Hartford (commission), seeking damages and other relief because of the defendants’ alleged improper refusal to pay them certain retirement and pension benefits.

The three plaintiffs, each a retired police officer with at least thirty years of service, are currently receiving a monthly pension. In addition, upon retirement, each of the plaintiffs received a lump sum payment equal to 50 percent of his accrued sick time. The plaintiffs each retired with the rank of captain or higher. Before their promotions to the rank of captain, the plaintiffs were members of the Hartford police union, a collective bargaining unit. Once promoted to captain, the plaintiffs were no longer members of the collective bargaining unit.

The plaintiffs’ complaint alleges various claims based on contract and constitutional law. The contract claims were submitted to the jury. Several questions of law, including the constitutional issues, however, were reserved for the trial court’s decision. The jury, after answering several interrogatories submitted by the court, found in part for the plaintiffs and in part for the defendants. Specifically, the jury found that the defendants had breached an implied contract, based on a representation made in the pension manual, to include lump sum payments for accrued sick time in the plaintiffs’ pension calculations. In addition, the jury found that the defendants had breached an express and implied contract, based on the city charter, to include partial years of military service in Fennell’s and Williams’ pension calculations. The trial court, thereafter, decided several questions of law. Among the issues decided was that Fennell and Williams were entitled, under the Hartford city charter, to have partial years of military service included in their pension calculations.

The defendants moved to set aside the verdict and for judgment notwithstanding the verdict on the various contract claims decided by the jury. The trial court granted the motion with regard to the implied contract claim concerning a statement made in the pension manual, and denied the motion as to the express and implied contract claims regarding the inclusion of partial years of military service in the pension calculations of Fennell and Williams. The plaintiffs appealed from the judgment of the trial court to the Appellate Court and the defendants filed a cross appeal. We transferred the appeal and the cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We now affirm the judgment of the trial court.

I

We first address the several issues pertaining to accrued sick leave. Prior to their retirements, the plaintiffs were provided with a pension manual prepared and distributed by the commission that puiported to explain and summarize their retirement benefits. Included in the manual was the statement: “Earned sick leave time is not credited to the pension calculation unless you are a Board of Education employee or in the city’s non-bargaining unit.” The plaintiffs argue that, as “non-bargaining unit” employees, the statement in the pension manual created an implied contract with the defendants to include the plaintiffs’ lump sum payments for accrued sick time in the calculation of their pension benefits. To include those sick time payments would have inflated the plaintiffs’ salaries in their final year, thereby increasing the basis upon which their pension benefits were calculated. The jury found that the language in the pension manual had created an implied contract obligating the defendants to include that benefit. Upon the defendants’ motion, however, the trial court set aside the jury’s verdict and rendered judgment notwithstanding the verdict with respect to this claim. We agree with the trial court that the plaintiffs were not entitled to this benefit.

We begin our analysis with a review of several general principles regarding municipal charters and municipal corporations and their employees. “It has been well established that a city’s charter is the fountainhead of municipal powers .... The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. . . . Agents of a city, including [its commissions], have no source of authority beyond the charter. ... In construing a city charter, the rules of statutory construction generally apply. . . .” (Citations omitted; internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 423, 572 A.2d 951 (1990).

“The officer, body or board duly authorized must act [on] behalf of the municipality, otherwise a valid contract cannot be created. Generally the power to make contracts on behalf of the municipality rests in the council or governing body .... Generally, no officer or board, other than the common council, has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers . . . .” 10 E. McQuillin, Munich pal Coiporations (3d Ed. Rev. 1990) § 29.15, p. 315; see Keeney v. Old Saybrook, 237 Conn. 135, 145-46, 676 A.2d 795 (1996). “It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language.” (Internal quotation marks omitted.) Perretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981). “ ‘[A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract . . . .’ ” Norwalk v. Board of Labor Relations, 206 Conn. 449, 452, 538 A.2d 694 (1988). Thus, “ ‘every person who deals with [a municipal corporation] is bound to know the extent of its authority and the limitations of its powers.’ ” John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 704, 448 A.2d 180 (1982); see Keeney v. Old Saybrook, supra, 149.

A

With these principles in mind, we turn to the plaintiffs’ argument that the pension manual created an implied contract. The plaintiffs rely on Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 198-99, 520 A.2d 208 (1987), in which this court held that terms in an employment or personnel manual may create an implied contract between an employer and employee, and that whether such a contract has been created is ultimately a question of fact for the trier of fact to determine. See Carbone v. Atlantic Richfield Co., 204 Conn. 460, 471-72, 528 A.2d 1137 (1987) (“under appropriate circumstances, the terms of an employment manual may give rise to an express or implied contract between employer and employee”). The plaintiffs assert that this legal principle is applicable to the public sector as well as the private sector. We disagree.

In Pineman v. Oechslin, 195 Conn. 405, 411, 488 A.2d 803 (1985), this court addressed whether Connecticut’s statutory retirement plan for state employees was contractual in nature. In Pineman, several female state employees brought a class action seeking a declaratory judgment that the pre-1975 State Employees Retirement Act (act) “ ‘created a contractual obligation obliging Connecticut to maintain the pre-1975 retirement ages for female state employees who had not yet begun receiving retirement benefits when such act was revised.’ ” Id., 407. As adopted in 1939, the act allowed male employees to retire at age fifty-five with twenty-five years of state service, but allowed female state employees to retire at age fifty with the same length of service. Id., 407-408. Subsequently, in 1974, the variant retirement ages for male and female employees were held to be discriminatoiy in violation of Title VII of the Civil Rights Act of 1964. Id., 408. In 1975, the act was amended to establish fifty-five years as the retirement age for all state employees with twenty-five years of state service. Id. When considering the contractual approach of other states to public pensions, the court stated that: “Although there is a seductive appeal in the contract-oriented approaches adopted by other jurisdictions, we decline to depart from the well established rules of statutory construction . . . namely, that a statute does not create vested contractual rights absent a clear statement of legislative intent to contract. Upon examination of the case law in this area, it becomes clear that the contract approach plays havoc with basic principles of contract law, traditional contract clause analysis and, most importantly, the fundamental legislative prerogative to reserve to itself the implicit power of statutory amendment and modification.” (Emphasis added.) Id., 414. This reasoning is equally appropriate when reviewing claims asserted by municipal employees.

“[C]ourts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel.” (Internal quotation marks omitted.) Id., 415. We believe that implied contract claims in the public sector, based upon pension or employee manuals, “would only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens [and employees], imposing an unpredictable drain on the public fisc.” Office of Personnel Management v. Richmond, 496 U.S. 414, 433, 110 S. Ct. 2465, 110 L. Ed. 2d 387 (1990). “Absent a clear legislative indication, we are loathe to attribute an intent to the legislature to draw down the public fisc in favor of those with no substantive entitlement thereto.” Katz v. Commissioner of Revenue Services, 234 Conn. 614, 619, 662 A.2d 762 (1995).

On the basis of the above considerations, we cannot superimpose implied contract principles upon the terms of the plaintiffs’ pension based upon a representation in a pension manual. We conclude, as a matter of law, that the pension manual created and distributed by the commission could not confer any additional benefits not provided for by the city’s charter.

In this case, the Hartford city charter does not provide that lump sum payments for accrued sick time are to be included in the calculations of the plaintiffs’ pensions. Furthermore, the charter provides that “[e]xcept as otherwise provided in this charter all powers vested in the city shall be exercised by the court of common council . . . .” Hartford Charter, c. II, § 8. Pursuant to General Statutes § 7-450, an enabling statute, the Hartford city council adopted chapter XVII, § 3, of the Hartford charter, which created the municipal employees’ retirement fund. Pursuant to the charter and the statute, the power to amend the city’s municipal employees’ retirement fund rests solely with the city council.

In order for additional retirement or pension benefits to be conferred on the plaintiffs and other city employees, the city council must adopt ordinances in compliance with the statutory and charter mandates. See Hartford Charter, c. Ill, §§ 10 through 13. The plaintiffs concede that this was not done. If additional benefits were allowed to be conferred in any other manner, the actions of the commission would impinge on the city council’s legislative prerogative to oversee the maintenance of the city’s municipal employees’ retirement fund. See Pineman v. Oechslin, supra, 195 Conn. 410-11. In sum, the commission was without authority to confer additional benefits through the pension manual.

In the alternative, the plaintiffs argue that if approval of the city council is in fact required, the contested representation that was made in the pension manual was ratified by the city council. The plaintiffs argue that the contract was ratified because the city council was involved in the funding, production and distribution of the pension manual. The plaintiffs also argue that the pension manual was ratified by the city because the first page of the manual contains a letter signed by the treasurer of the city of Hartford, and because that letter contains the city seal. We disagree.

“It is a general rule that whatever acts public officials may do or authorize to be done in the first instance may subsequently be adopted or ratified by them with the same effect as though properly done under previous authority.” 10AE. McQuillin, supra, § 29.104, p. 60. However, “no ratification or estoppel can make lawful a municipal contract which is beyond the scope of the corporate powers, or which is not executed in compliance with mandatory conditions prescribed in the charter or statutes . . . .” (Emphasis added.) Id., § 29.104.30, p. 67. Therefore, ratification of the contested term in the pension manual had to be enacted by the city council as an ordinance or resolution in compliance with the charter provisions in order to be binding on the city. Cf. Keeney v. Old Saybrook, supra, 237 Conn. 149. This was not done.

B

The next issue we address is whether the city’s failure to include lump sum payments for accrued sick leave in the plaintiffs’ final pension calculations was a violation of their due process rights under the fourteenth amendment to the United States constitution. The plaintiffs claim that they have a property interest in their pension benefits, and that the defendants have arbitrarily denied them this benefit.

In Pineman v. Oechslin, supra, 195 Conn. 416-17, referring to the state employees retirement system, we observed that “the statutory pension scheme establishes a property interest on behalf of all state employees in the existing retirement fund, which interest is entitled to protection from arbitrary legislative action under the due process provisions of our state and federal constitutions.” As we indicated previously, the plaintiffs, however, were never entitled to this benefit under the city charter or under the ordinances. “The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” (Emphasis added.) Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). “[A] unilateral expectation of benefits is simply not enough to create a constitutionally protected property interest within the meaning of the fourteenth amendment.” Barde v. Board of Trustees, 207 Conn. 59, 65, 539 A.2d 1000 (1988); see also Bartlett v. Krause, 209 Conn. 352, 366, 551 A.2d 710 (1988); Millard v. Connecticut Personnel Appeal Board, 170 Conn. 541, 546, 368 A.2d 121 (1976). Because the plaintiffs do not have a property interest in the claimed benefit, as discussed in part IA of this opinion, they are not entitled to due process. Therefore, the trial court properly denied this due process claim of the plaintiffs.

C

We next address the plaintiffs’ claim that they were deprived of their statutory rights to an increase in retirement benefits pursuant to General Statutes § 31-76k. Pursuant to rule 10 (3) of the personnel rules and regulations, which states the city’s policy for all employees, the plaintiffs each received lump sum payments equal to 50 percent of their accrued sick time when they retired. The plaintiffs claim that they are entitled to additional sick leave benefits that were given to the bargaining unit members of the Hartford police union pursuant to the 1987-1990 collective bargaining agreement (agreement). The agreement furnishes the bargaining unit police officers with increased retirement benefits calculated on the basis of “a one-time only increase of accumulated days equal to one (1) additional day for each day over 120 accumulated sick days calculated as of October 31,1987.” Collective Bargaining Agreement (1987-1990) § 5.3.

“[Section] § 31-76k provides for the collection of certain [accrued] fringe benefits, including [sick days] where (1) an employer policy provides for the payment of accrued benefits upon termination, or (2) such payments are provided for by a collective bargaining agreement.” Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800, 806, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993). Because the plaintiffs were not members of the collective bargaining unit, we must determine whether there existed an “employer policy” entitling them to payment of accrued benefits upon termination. “[T]he term ‘employer policy’ relates not to the employer’s intent with regard to a single employee, but to its intentions regarding either its employees generally or discrete classes of employees.” Id. The plaintiffs’ claims have no merit under § 31-76k because lump sum sick leave benefits for accrued sick time have already been paid to the plaintiffs pursuant to rule 10 (3), which is consistent with the city’s established policy. The plaintiffs are essentially claiming that they are entitled to additional retirement benefits based on accrued sick leave because the bargaining unit employees received those benefits. The city’s policy, however, was to grant different accrued sick leave benefits to collective bargaining unit police officers, according to the agreement, and nonbargaining unit police officers. The trial court properly denied the plaintiffs’ claims under § 31-76k.

D

The plaintiffs next argue that the defendants violated their rights to equal protection of the laws under the state and federal constitutions by providing additional retirement benefits to collective bargaining unit members of the Hartford police union, while denying that same benefit to the plaintiffs who were nonbargaining Hartford police supervisory personnel. We find no merit to this claim.

As we have previously indicated, the agreement furnishes the bargaining unit police officers with increased retirement benefits calculated on the basis of “a onetime only increase of accumulated days equal to one (1) additional day for each day over 120 accumulated sick days calculated as of October 31, 1987.” Collective Bargaining Agreement (1987-1990) § 5.3. Because the city’s different treatment of collective bargaining and nonbargaining personnel does not create a suspect classification or infringe on a fundamental constitutional right, the plaintiffs must establish that the different treatment has no rational basis in order to mount a successful equal protection challenge. See State Management Assn. of Connecticut, Inc. v. O'Neill, 204 Conn. 746, 753-54, 529 A.2d 1276 (1987).

There exists a legitimate public purpose for the different treatment of the plaintiffs as nonbargaining supervisory personnel of the Hartford police. As a consequence of a collective bargaining agreement, supervisory or managerial personnel do not necessarily receive the same benefits as the collective bargaining unit members. This court has noted that “managers have the responsibility to decide major personnel decisions and formulate agency policies, and therefore managers are differently situated than nonmanagerial employees and supervisors. These responsibilities give managers prestige, autonomy and managerial authority that is not enjoyed by other employees. On the other hand, because managers administer collective bargaining agreements . . . they have no bargaining or organizational rights.” (Citation omitted.) Dept. of Administrative Services v. Employees' Review Board, 226 Conn. 670, 683-84, 628 A.2d 957 (1993). In light of the different functions that management and collective bargaining employees perform, the trial court properly determined that there exists a legitimate public purpose for treating the plaintiffs differently from the collective bargaining unit police officers. Thus, the plaintiffs were not deprived of the equal protection of the laws under the state or federal constitutions.

The plaintiffs also claim that the city’s refusal to grant them additional sick leave benefits constitutes a violation of their due process rights under the fourteenth amendment to the United States constitution. The plaintiffs claim that they have established a property interest in their pension benefits, and that the defendants have arbitrarily chosen to exclude them from receiving the additional sick leave benefits. The plaintiffs, however, were never entitled to this benefit under the city charter or ordinances. See part IB of this opinion. Accordingly, the trial court properly denied the plaintiffs’ due process claims on this issue.

II

We now address the claim of Fennell and Williams that their constitutional rights were violated when the city refused to calculate their credit for military service time at the higher percentage afforded to bargaining unit personnel. Under the agreement, bargaining unit police officers receive a 2.65 percent credit toward their pension benefits for each year of military service time. Fennell and Williams, as nonbargaining personnel, received 2 percent for each year of military service time toward their pension calculations. Fennell and Williams claim that this practice violated their right to equal protection of the laws under the state and federal constitutions, and their due process rights under the fourteenth amendment to the United States constitution. We are unpersuaded with respect to these constitutional arguments for the same reasons stated previously in part I D of this opinion

III

In their cross appeal, the defendants argue that the trial court improperly denied both their motion to set aside the jury’s verdict and their motion for judgment notwithstanding the verdict regarding the defendants’ failure to include partial years of military service in Fennell’s and Williams’ pension calculations. Initially, pursuant to the city charter, Fennell purchased one year and six months of military service credit and Williams purchased two years and five months of military service credit. Subsequently, the commission rejected Fennell’s and Williams’ purchase of a partial year of military service and reimbursed them for that portion of their purchases. We conclude, as a matter of law, based upon our interpretation of the Hartford charter, that Fennell and Williams were entitled to have a partial year of military service credit included in their pension calculations to the extent that it increases their total number of whole years of service.

“The interpretation of statutes presents a question of law . . . which is ultimately for the court to decide.” (Citation omitted; internal quotation marks omitted.) University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). Likewise, the interpretation of a charter or ordinance is a question of law. “In construing a city charter, the rules of statutory construction generally apply. ... In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws.” (Citations omitted; internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Representatives, supra, 214 Conn. 423-24.

Consequently, we must examine the charter provisions regarding the pension scheme in general. The operative provision of the charter with respect to the purchase of military service credits provides in relevant part: “An employee may purchase up to four (4) years of military service time for service in the Armed Forces of the United States for periods of service .... The period of such service for which the employee receives credit shall be counted for the purpose of computing the amount of his or her retirement allowance . . . .” (Emphasis added.) Hartford Charter, c. XVII, § 3 (bi) (III) (5). We construe this provision to include within an employee’s pension calculations any partial year of military service that the employee has purchased. The actual amount of an employee’s pension benefits, however, is determined by the number of the employee’s whole years of service: “Service retirements for those employees hired before July 1,1984, will be based upon 2.65 percent of final average pay for each whole year of service . . . .” (Emphasis added.) Hartford Charter, c. XVII, § 3 (bi) (III) (2).

Construing the pension scheme as a whole, we conclude, as the defendants concede in their brief to this court, that an employee may purchase whole and partial years of military service, not to exceed four years, that “shall be counted” or “shall be credited” in his or her pension calculations if it affects an employee’s pension benefit. A partial year of military service, however, is to be included in an employee’s pension calculations to the extent that it increases the employee’s number of whole years of service. For example, an employee who has twenty-one and one-half years of service in the police department and who purchases two and one-half years of military service time should receive a pension on the basis of twenty-four years of service. On the other hand, if that employee purchases two and one-quarter years of military service he would receive a pension calculated on the basis of twenty-three years of service because his actual pension benefit is determined by his number of whole years of service.

Although our examination of the record indicates that the plaintiffs may not have been accorded the proper calculation of their pension benefits, as previously set forth, we recognize, as the trial court did, that such a determination is better made by the commission in the first instance. We also recognize that the plaintiffs have been reimbursed for the partial years of military service that they sought to have considered, which we now conclude they are entitled to have included in their pension calculations to the extent that such a partial year, when added to a partial year of actual service, may constitute a whole year of service. Thus, the plaintiffs ought to be afforded the opportunity to repurchase those partial years, and if they elect to do so, the commission ought to be afforded an opportunity to recalculate their benefits based on that repurchase. Although the remand by the trial court was correct, it should have ordered that partial years of military service purchased by Fennell and Williams are to be included in their pension calculations subject to the qualification that their actual pension benefits be determined by their number of whole years of service.

The judgment is affirmed except that with respect to the cross appeal, the judgment is vacated and the case is remanded for further proceedings with respect to the issue of credit for military service time in accordance with the preceding paragraph of this opinion.

In this opinion the other justices concurred.

       See footnote 15.

       In Office of Personnel Management v. Richmond, supra, 496 U.S. 414, the United States Supreme Court was required to interpret the appropriations clause of the United States constitution, article one, § 9, which provides in relevant part: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by. Law . . . .” Nevertheless, we believe that the policy considerations of that case apply with equal force to the implied contract claims raised in this case. This is so because the Hartford city council was vested with sole authority to grant additional pension or retirement benefits under the charter and the statutes.

       General Statutes § 7-450 provides: “Any municipality or subdivision thereof may, by ordinance, establish pension and retirement systems for ils officers and employees and their beneficiaries, or amend any special act concerning its pension or retirement system, toward the maintenance in so-und condition, of a retirement fund or funds, provided the rights or benefits granted to any individual under any municipal retirement or pension system shall not be diminished or eliminated. The legislative body of any such municipality, by a two-thirds vote, may provide for pensions to persons, including the survivors’ benefits for widows of such persons, not included in such retirement or pension system.” (Emphasis added.)

       Chapter III, § 10 et seq., of the Hartford charier establishes the procedure for adopting ordinances, i.e., first reading and publication, public hearing, passage by the city council and approval by the mayor.

       See footnote 3.

       This is consistent with the purpose of § 7-450, which provides that the city council may “amend any special act concerning its pension or retirement system,, toward the maintenance in sound condition of a retirement fund

        or funds . . . .” (Emphasis added.) See footnote 3. Accordingly, General Statutes § 7-450a (b) requires that the legislative body of a municipality receive a “qualified cost estimate” from an “enrolled actuary” before adopting an ordinance or act altering its municipal employees’ retirement fund. If amendments to the pension scheme could be made through a pension manual, based on implied contract principles, then the statutory requirement of fiscal responsibility would be undermined.

       The commission was created in chapter XVII, § 2, of the Hartford charter, which provides in part that the “[t]he commission shall administer the municipal employees’ retirement fund hereinafter established.” Chapter XVII, § 5, of the Hartford charter provides, among other things, that the “commission shall have power to make rules and regulations for the purpose of carrying out the provisions of this chapter.” The plaintiffs argue that in order to carry out its obligation to administer the municipal employees’ retirement fund, the commission must, by necessity, interpret the charter and confer pension benefits upon eligible recipients. We disagree. The fact that the commission has authority to administer the city’s municipal employees’ retirement fund does not give it authority to amend the pension plan and circumvent the city council’s authority to amend the municipal employees’ retirement fund.

       Although we affirm the decision of the trial court on this issue, we do so for different reasons. The trial court, relying on our statements in Pineman v. Oechslin, supra, 195 Conn. 410-11, stated: “The Court concludes that as a matter of law, the pension manual, when read as a whole, as it must be, cannot be reasonably construed as being a clear, unambiguous expression of legislative intent to create contractual rights in pension benefits.” The trial court, however, ultimately concluded that “there was no evidence that the Pension Commission had any power to create pension benefits. . . . There is no statute, charter provision or ordinance which gives the Pension Commission the power to create or grant pension benefits.” Our holding today is premised on the fact that the city council had the sole authority to grant additional pension benefits. Even if the pension manual clearly provided for such a benefit, the commission was not empowered to confer additional benefits.

       General Statutes § 31-76k provides: “If an employer policy or collective bargaining agreement provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits exclusive of normal pension benefits in the form of wages in accordance with such agreement or policy but in no case less than the earned average rate for the accrual period pursuant to sections 31-71a to 31-71i, inclusive.” (Emphasis added.)

       Although these rules are created by the Hartford personnel board, they are approved by the city council.

       The plaintiffs also argue that they are entitled to this additional benefit because they supervised the “Lost Time Management Program.” That program consists of guidelines that are used by the supervisory police officers to curtail absenteeism. The plaintiffs, as supervisors, administered the program. The plaintiffs argue that their supervision of the program entitles them to the same additional lump sum sick benefits as the collective bargaining unit police officers receive. There is no merit to this argument.

       The plaintiffs also argue that the “public emoluments or privileges” clause of article first, § 1, of the Connecticut constitution requires that the defendants give the plaintiffs the same additional side leave benefits that were given to members of the collective bargaining unit. Article first, § 1, of the Connecticut constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.” The plaintiffs rely on Warner v. Gabb, 139 Conn. 310, 93 A.2d 487 (1952), in support of this proposition. In Warner, this court stated: “[I]f legislation directs the granting of an emolument or privilege to an individual or class without any purpose, expressed or apparent, to serve the public welfare thereby, the courts have a duty to declare such legislation unconstitutional.” Id., 313. Even if the public emoluments clause has been violated, and we do not agree that it has been, we fail to see what benefit that would give the plaintiffs. It would merely invalidate the benefit given to the collective bargaining unit members. Nevertheless, as we indicate in this opinion, there exists a legitimate public purpose for the distinction made by the city between nonbargaining and bargaining unit personnel.

       Bracken did not seek military service credits.

       See Hartford Charter, c. XVII, § 3 (bi) (III) (2) and Hartford Ordinance No. 37-85 (November 25, 1985) (amending said charter provision). The percentage, for nonbargaining personnel, depends on the number of years of city service.

       We agree with the defendants that the issue of whether the charter allows Fennell and Williams to purchase a partial year of military service is a question of law for the trial court and should not have been submitted to the jury. In addition to concluding that Fennell and Williams were “entitled to credit of partial years of mililary service toward their pension benefits,” the trial court also concluded that, to deny Fennell and Williams credit for partial years of military service would violate their rights to due process. Although we conclude that a partial year of military service should be included in an employee’s pension calculations to the extent that it will affect his or her actual benefits, we fail to see how the plaintiffs are being deprived of due process. Accordingly, the holding of the trial court as to this issue was improper.

       The city charter has been periodically amended. Because no party challenges the validity of the amendments, we utilize the current language of the charier that is applicable to Fennell and Williams, who retired on April 25, 1989, and October 7, 1988, respectively.
      Chapter XVII, § 3 (bi) (III) (5) of the Hartford charter provides: “An employee may purchase up to four (4) years of military service time for service in the Armed Forces of the United States for periods of service, any of which occurred during the periods set forth in Section 27-103 of the General Statutes of Connecticut, at the rate payable at the time of entry into city service, with interest at the rate of seven (7) percent per annum. The period of such service for which the employee receives credit shall be counted for the purpose of computing the amount of his or her retirement allowance provided such employee shall have completed ten (10) years of continuous service or fifteen (15) years of active aggregate service with the City of Hartford or shall be retired prior thereto, due to disability incurred in the course of his or her employment.” See also footnote 17.

       The defendants concede that chapter XVII, § 3 (w) of the Hartford charter also allows employees to purchase service credits based on their military service. That section provides in relevant part: “Any member who is not employed by the board of education and is not represented by a bargaining unit, who, prior to his or her date of employment with the City of Hartford served in any branch of the armed forces of the United States . . . shall be credited with the length of such services ... to the extent that he or she maltes contributions to said fund for all or any part of such service, not to exceed four (4) years. . . .” (Emphasis added.)