DocketNumber: No. CV 98-579841S
Citation Numbers: 1998 Conn. Super. Ct. 9580, 22 Conn. L. Rptr. 616
Judges: LANGENBACH, J.
Filed Date: 7/30/1998
Status: Non-Precedential
Modified Date: 7/5/2016
In their amended complaint of May 20, 1998, the plaintiffs allege the following facts. On or about March 1, 1998, the defendant invited "sealed bids on a project described as Central Connecticut State University New Office/Classroom Building and Garage . . . .'" (¶ 6) The bid package contained a requirement that each bidder sign a Project Labor Agreement ("PLA")1 to be entered into by the "Construction Manager for the Project, and the Connecticut State Building and Construction Trades Council ["BCTC"] . . . and each of its affiliated Local Unions . . ." (¶ 8) The plaintiff contractors, All Electric Co., Electric Contractors, Inc., and members of the plaintiff ABC allege that they would have submitted bids if they were not required to enter into the PLA. (¶ 10)
The plaintiffs claim in count one that by requiring all bidders to sign the PLA the commissioner acted in excess of the authority granted him by the competitive bidding statutes, General Statutes §
The defendant moves to dismiss the entire complaint on the ground of sovereign immunity, arguing that an injunction would interfere with the performance of important government functions.
"We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect against the state. (Internal quotation marks omitted.) CT Page 9582Antinerella v. Rioux,
"Sovereign immunity rests on the principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property . . . In a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts . . . When a state official's acts are in excess of legal authority or constitute an erroneous exercise of that authority, the interest in the protection of the plaintiff's right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine . . . Therefore, the state is subject to suit without consent2 . . . in a suit for injunctive relief when the action does not defeat the purpose of the doctrine of sovereign immunity by undue interference with governmental functions." (Citations omitted; internal quotation marks omitted.) Pamela B. v. Ment,
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.)Federal Deposit Ins. Corp. v. Peabody, N.E., Inc.,
The plaintiffs allege that by limiting the bidding on this project to contractors willing to enter into the PLA, the commissioner acted in excess of the authority granted him under the statutes to set the conditions of a competitive bid. The commissioner argues that count one does not sufficiently allege actions in excess of statutory authority because it presents no facts as to how the conduct violates the competitive bidding statutes or undermines the objectives of the process.3
In count one, the plaintiff alleges that "[t]he PLA imposes conditions which violate the stated purposes of the competitive bidding statutes" (¶ 13) and are "not related to a bidder's status as the lowest responsible and qualified general bidder,'" which is a requirement of §
The competitive bidding statutes5 require the commissioner to hold competitive bids for most state building CT Page 9584 projects, and requires that the contract be awarded to the "lowest responsible and qualified bidder." General Statutes §
The commissioner argues that the bid package developed for this project does not violate the statutes, because there is nothing in the PLA itself that favors one prospective bidder over another. He argues further that it doesn't violate the requirement that the contract be awarded to "the lowest responsible and qualified bidder" because that standard is not applicable until after the bids are opened, not when developing the bid package. This argument does not address the allegations, which are directed, not at the PLA itself but on the requirement that each bidder agree to its use. In order to even be a "qualified bidder." a contractor has to agree to contract with the unions. The requirement of the PLA precludes a class of contractors from submitting bids, and, under these allegations. amounts to favoritism for those contractors who do not object to accepting a union workforce.
In Unisys Corp. v. Dept. of Labor, supra,
The commissioner also argues that he has broad discretion under the statutes to set the terms of a public bid, including establishing labor requirements, and that discretion encompasses the decision to use a PLA. The Supreme Court, in Antinerellav. Rioux, supra
Taking the allegations as true and construing them broadly, the court can presume that the commissioner decided to use the PLA without prior objective investigation into its need for this project to protect the public welfare and then worked with union representatives to determine the terms of the PLA and justify its use. These facts support an inference of favoritism towards union contractors and a conclusion that the decision was contrary to the public policy embedded in the competitive bidding statutes. This is a substantial allegation of wrongful conduct in excess of statutory authority. Therefore, count one is not barred by sovereign immunity.
In count two, the plaintiffs allege that the competitive bidding statutes are unconstitutionally vague and an unauthorized delegation of legislative power, thus rendering the commissioner's actions null and void. The commissioner argues that the discretion granted is reasonable and necessary in light of the complexity of building projects.
Specifically the plaintiffs allege that the statutes "fail to: (1) declare a legislative policy concerning the use of project labor agreements, (2) establish primary standards to carry out any such policy, or (3) lay down an intelligible principle to which an administrative body must conform." (¶ 17) Furthermore, they allege that there is no authority for the decision to use the PLA in the competitive bidding statutes (¶ 19) because the statute contains no standards by which to determine the appropriateness of the PLA (¶ 20) and the CT Page 9586 commissioner has not promulgated any regulations establishing such standards (¶ 21).
"The most often cited rule governing the constitutionality of legislative delegations in Connecticut comes from the 1940 case of State v. Stoddard,
"As the complexity of economic and governmental conditions increases, the modern tendency is liberal in approving broad regulator; standards so as to facilitate the operational functions of administrative boards or commissions." (Internal quotation marks omitted.) Aunt Hack Ridge Estate, Inc. v.Planning Commissioner,
The commissioner points out that our Supreme Court has found a clearly expressed policy in these statutes, citing ArdmareConstruction Co. v. Freedman,
The plaintiffs do not claim that the statute is vague due to lack of details, but because it delegates to the commissioner the decision whether or not to use union labor. This claim is supported by factual allegations that the commissioner did not make any findings prior to adopting the PLA, accepted the draft PLA and model resolution proposed by BCTC, and showed no objective reasons to believe that the PLA was in the public interest. These allegations fall squarely within the rule ofState v. Stoddard, supra,
Whether there are standards outlined in the statutes to promote fairness in the bidding process that are sufficient to protect against arbitrary and biased decisions is a question to be determined after full consideration of the statutory scheme. See State v. Anonymous,
The third count raises a claim of infringement of the constitutionally protected rights of free speech and association under the constitutions of the United States and Connecticut. "The allegations of such a complaint and the factual underpinnings . . . must clearly demonstrate an incursion upon constitutionally protected interests." Barde v. Board ofTrustees,
The plaintiffs allege that (1) the commissioner is interfering with their rights "not to associate with unions which are signatories to the collective bargaining agreements which underlie the PLA" (¶ 18); (2) bidders "are required by the terms of the PLA to agree to make payments to the Locals which will be used by the Locals to further the philosophical and political goals of the Locals and their parent and associated organizations" (¶ 19); (3) "[t]he making of such payments, CT Page 9588 which are a precondition to eligibility to bid on this public project, violates the political principles which caused the members to join the plaintiff Association and would therefore violate the rights of the Association and its members guaranteed by the constitutions of the United States and the State of Connecticut" (¶ 20); and (4) the conduct of the defendant has "denied the plaintiffs the freedom, absent governmental coercion, to choose whether to associate with the BCTC and the Local Unions who are signatories to the PLA" (¶ 21).
The commissioner relies on Barde v. Board ofTrustees, supra,
The scope of the constitutional right of association in this context was outlined by the United States Supreme Court inAbood v. Detroit Board of Education,
The commissioner argues that the money collected by the contractor on this project will go only to collective bargaining making the PLA consistent with Abood. This argument is unavailing for two reasons. First, the court cannot determine from the record before it whether this PLA complies with that standard.7 More telling, however, is the procedural posture of Abood. The principle question in Abood was the same question at issue in the present case: whether the general allegations of the complaint established a cause of action under the first and fourteenth amendments. Id., 237. The Supreme Court found that they did. "The employees indicated in their pleadings that they opposed ideological expenditures of any sort that are unrelated to collective bargaining. To require greater specificity would confront an individual employee with the dilemma of relinquishing either his right to withhold his support of ideological causes to which he objects or his freedom to maintain his own beliefs without public discourse." (Emphasis in original.) Id., 241.
The allegations in count three are consistent with those upheld in Abood. If proven. they show that in order to be eligible to bid on this public works project. the plaintiff contractors would be required to use union workers and collect money to support a broad range of union activities inimical to their political beliefs, and non-union workers would be required to contribute money to support ideological expenditures unrelated to collective bargaining. The allegations of count three establish a claim of an infringement on the plaintiffs rights of free speech and association.
The plaintiffs complaint includes sufficient factual allegations to overcome the bar of sovereign immunity. Accordingly, the motion to dismiss is denied in light of the significant constitutional questions raised, the determination of which is manifestly in the public interest. CT Page 9590
So Ordered.
John J. Langenbach Superior Court Judge
Spiniello Construction Co. v. Town of Manchester , 189 Conn. 539 ( 1983 )
Aunt Hack Ridge Estates, Inc. v. Planning Commission , 160 Conn. 109 ( 1970 )
State v. Stoddard , 126 Conn. 623 ( 1940 )
State v. Anonymous , 179 Conn. 155 ( 1979 )
Abood v. Detroit Board of Education , 97 S. Ct. 1782 ( 1977 )