Waterbury v. Brennan

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2 SEPTEMBER, 2024 228 Conn. App. 206
Waterbury v. Brennan

CITY OF WATERBURY v. JANET
BRENNAN ET AL.
(AC 46178)
Elgo, Moll and Cradle, Js.

Syllabus

The defendant, in her individual capacity and as the executrix of the estate
of the decedent, the former fire chief of the plaintiff city, appealed from the
judgment of the trial court rendered in favor of the plaintiff. The defendant
claimed that the trial court improperly granted the plaintiff’s motion for
summary judgment and improperly denied her motion for summary judg-
ment. Held:

The trial court properly granted the plaintiff’s motion for summary judgment,
concluding that there was no genuine issue of material fact that the decedent,
under the terms of his employment contract, was entitled to receive pension
benefits under the collective bargaining agreement between the plaintiff
and the plaintiff’s municipal administrators association, rather than the
collective bargaining agreement between the plaintiff and the firefighters
union.

In light of the record and the plain and unambiguous language in the dece-
dent’s employment contract, this court concluded that the trial court prop-
erly denied the defendant’s motion for summary judgment as no genuine
issue of material fact existed as to whether the plaintiff’s retirement board
possessed authority under the city charter to unilaterally confer a pension
benefit on the decedent pursuant to the collective bargaining agreement
with the firefighters union.

The trial court did not abuse its discretion in denying the defendant’s motion
for reargument and reconsideration on the ground that the defendant did
not properly preserve her claim that the plaintiff was not permitted to utilize
the decedent’s pension benefits to offset heart and hypertension benefits
due to him, and the defendant did not demonstrate that the trial court
committed plain error.
Argued February 5—officially released September 24, 2024

Procedural History

Action seeking, inter alia, a judgment declaring that
no further workers’ compensation payments are due
to the defendants, and for other relief, brought to the
Superior Court in the judicial district of Waterbury,
where the court, Roraback, J., denied the defendants’
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228 Conn. App. 206 SEPTEMBER, 2024 3
Waterbury v. Brennan

motion for summary judgment, granted the plaintiff’s
motion for summary judgment, and rendered judgment
thereon, from which the defendants appealed to this
court. Affirmed.
Robert C. Lubus, Jr., with whom, on the brief, was
Andrew S. Marcucci, for the appellants (defendants).
Daniel J. Foster, corporation counsel, for the appel-
lee (plaintiff).
Opinion

ELGO, J. In this action for declaratory relief, the
defendant Janet Brennan1 appeals from the judgment
of the trial court rendered in favor of the plaintiff, the
city of Waterbury (city). On appeal, the defendant
claims that the court improperly denied her motion for
summary judgment and, relatedly, that it improperly
granted the motion for summary judgment filed by the
city. We affirm the judgment of the trial court.
The backdrop to this appeal is detailed in Brennan
v. Waterbury, 331 Conn. 672, 207 A.3d 1 (2019) (Bren-
nan I). The city hired the decedent, Thomas Brennan,
as its fire chief on November 8, 1991. Id., 675. Following
a heart attack in 1993, the decedent filed a claim for
heart and hypertension benefits pursuant to General
Statutes § 7-433c. Id., 676. In December, 1993, the work-
ers’ compensation commissioner (commissioner)2
1
The city brought this action against Janet Brennan in both her individual
capacity and as executrix of the estate of her late husband, Thomas Brennan.
2
General Statutes § 31-275d (a) (1), effective October 1, 2021, provides
in relevant part that, ‘‘[w]henever the words ‘workers’ compensation com-
missioner,’ ‘compensation commissioner,’ or ‘commissioner,’ denote a work-
ers’ compensation commissioner in [several enumerated] sections of the
general statutes, [including sections contained in the Workers’ Compensa-
tion Act, General Statutes § 31-275 et seq.] the words ‘administrative law
judge’ shall be substituted in lieu thereof . . . .’’
Because many of the events underlying this appeal occurred prior to
October 1, 2021, in this opinion we use the terms workers’ compensation
commissioner or commissioner.
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4 SEPTEMBER, 2024 228 Conn. App. 206
Waterbury v. Brennan

issued a finding and award, concluding that the dece-
dent had sustained a compensable injury and ordering
the city to pay all benefits to which he ‘‘ ‘is or may
become entitled.’ ’’ Id. The city and the decedent there-
after attempted to no avail to reach an agreement on
the payment of benefits. Id. While those negotiations
were ongoing, the decedent elected to take disability
retirement in December, 1995; id.; and the city’s retire-
ment board (board) authorized a 75 percent disability
pension.3 Id., 677 n.4. Although the city made payments
to the decedent pursuant to § 7-433c in July, 1997, and
June, 1999,4 the decedent and the city never entered into
a full and final settlement of the heart and hypertension
claim. Id., 677.
The decedent died on April 20, 2006. Id., 678. As the
court noted in Brennan I, ‘‘[i]t was not until 2013 that
the decedent’s attorney sought to finalize the decedent’s
permanent partial disability claim under § 7-433c.’’ Id.
The decedent’s attorney subsequently moved to substi-
tute the defendant as party claimant. The commissioner
granted that motion and, in a decision dated December
7, 2015, ordered permanent partial disability benefits
of 80 percent payable to her, less any advance payments
made to date. See footnote 4 of this opinion.
The city commenced the present action by service
of process on December 24, 2015. The gist of its com-
plaint was that, due to a pension offset provision in the
1967 Waterbury city charter (city charter), no further
In its response to the defendant’s requests for admission, the city admit-
3

ted that ‘‘the annual pay of [the decedent] at the time of his retirement was
$86,690.78’’ and that ‘‘[t]he disability pension granted to [the decedent] was
in the amount of $65,018.04.’’ It is undisputed that the decedent received
monthly pension payments in the amount of $5418.17 from the time of his
retirement on December 30, 1995, until his death on April 20, 2006.
4
The record before us indicates that the city made lump sum payments
toward the decedent’s § 7-433c claim in the amounts of $59,200.20 in 1997
and $17,982.12 in 1999.
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228 Conn. App. 206 SEPTEMBER, 2024 5
Waterbury v. Brennan

heart and hypertension payments were due to the defen-
dant.5 The city thus sought a declaratory judgment that
(1) ‘‘[p]ursuant to Russo [v. Waterbury, 304 Conn. 710,
41 A.3d 1033 (2012)], the city charter and [the dece-
dent’s] employment contract, any benefits allegedly due
to [the decedent] under § 7-433[c] and the Workers’
Compensation Act would have resulted in an offset of
the defendant[’s] or [the decedent’s] pension’’; (2) ‘‘[t]he
offset applies to all amounts in contention, the ‘net’
amount in contention is zero and the city does not have
to pay the defendant any additional benefits as a matter
of law’’; and (3) ‘‘[t]he judgment for benefits issued by
the [commissioner] would result in a double recovery
explicitly forbidden by the [city charter] and Russo,
therefore the city does not have to pay the defendant
any monies as a matter of law . . . .’’6
The defendant subsequently filed a request to revise
the city’s complaint in multiple respects. The city filed
an objection to that request, which the court sustained.
The defendant also served two sets of requests for
5
Section 2761 of the city charter contains an offset provision, which
provides: ‘‘No payments of retirement, disability or death benefits shall be
allowed or paid under the provisions of this act so long or for such period
as payments are being made by [the city] under the provisions of the General
Statutes relating to workers’ compensation except when such payments
would exceed the payments made under the provisions of the Workers’
Compensation Act. In such cases the pensioner shall receive, in addition to
his payments under the Workers’ Compensation Act the difference between
that amount and the amount which he would have received under the
provisions of this act.’’
As our Supreme Court observed in Russo v. Waterbury, 304 Conn. 710,
714, 41 A.3d 1033 (2012), § 2761 of the city charter ‘‘allows the city to offset
the . . . pension benefits [of municipal employees] based on their heart
and hypertension benefits’’ under § 7-433c.
All references to the city charter herein are to the 1967 city charter unless
otherwise indicated.
6
The city also sought injunctive relief ‘‘prohibiting the payment of any
benefits to the defendant following the ruling of the [commissioner] until
[its request for] declaratory relief has been decided’’ by the trial court. That
injunctive relief is not at issue in this appeal.
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Waterbury v. Brennan

admission on the city in 2019 and 2021; copies of the
city’s responses thereto were filed with the court. At
no time did the defendant answer the city’s complaint.
On April 21, 2021, the city filed a motion for summary
judgment, which was accompanied by a memorandum
of law and several exhibits, including copies of the
decedent’s employment contract with the city (employ-
ment contract), the affidavit of Cynthia Van Deursen,
a benefits analyst with the city, the affidavit of Daniel
J. Foster, an attorney with the city, and collective bar-
gaining agreements between the city and both the
Waterbury Municipal Administrators Association7 and
the Waterbury Firefighters Association, Local 1339
(union). On September 29, 2021, the defendant filed an
objection to that motion, as well as her own motion
for summary judgment.
The primary disagreement between the parties, as
detailed in their respective motions for summary judg-
ment, concerned precisely which collective bargaining
agreement governed the decedent’s pension with the
city. After hearing argument from the parties, the court
rendered summary judgment in favor of the city. In so
doing, the court concluded that no genuine issue of
material fact existed as to whether the decedent, under
the terms of his employment contract, was entitled to
receive pension benefits under the collective bargaining
agreement between the city and the Waterbury Munici-
pal Administrators Association (administrator agree-
ment),8 rather than the collective bargaining agreement
7
In her affidavit, Van Deursen stated that the ‘‘Waterbury Municipal Admin-
istrators Association’’ was a labor union and was ‘‘also known as the ‘Manage-
ment Union.’ ’’
8
The record contains copies of two collective bargaining agreements
between the city and the Waterbury Municipal Administrators Association,
which covered the time periods of 1989–1993 and 1994–1998, respectively.
Because there is no material difference in those agreements relevant to this
appeal, for convenience we refer to them as the administrative agreement.
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228 Conn. App. 206 SEPTEMBER, 2024 7
Waterbury v. Brennan

between the city and the union (firefighter agreement).9
In addition, the court rejected the defendant’s claim
that certain actions on the part of the board created
an issue of fact as to whether the decedent was entitled
to the benefits set forth in the firefighter agreement.
With respect to the city’s obligation to pay workers’
compensation benefits pursuant to § 7-433c, the court
noted, in light of the undisputed evidence of pension
payments made to the decedent; see footnote 3 of this
opinion; that, if the city ‘‘is permitted to offset pension
payments . . . against any as of yet unpaid workers’
compensation benefits to which [the decedent] might
lawfully be entitled, the offsets would exceed the
amounts due so as to relieve the city of any liability
for payments on account of workers’ compensation
awards.’’ The court then concluded that the defendant
could not ‘‘escape [the] offset rules reducing amounts
payable under workers’ compensation awards by
amounts that are received by way of pension payments’’
pursuant to the terms of the decedent’s employment
contract. The court thus granted the city’s motion for
summary judgment and denied the defendant’s motion.
On July 11, 2022, the defendant filed a motion seeking
reargument and reconsideration, to which the city filed
an objection. The court heard argument from the parties
and thereafter denied that motion, and this appeal fol-
lowed.
As a preliminary matter, we note the well established
standard that governs our review of a trial court’s deci-
sion to grant a motion for summary judgment. ‘‘Practice
Book § 17-49 provides that summary judgment shall be
9
The record contains copies of three collective bargaining agreements
between the city and the union, which covered the time periods of 1989–1992,
1992–1995, and 1995–1999, respectively. Because there is no material differ-
ence in those agreements relevant to this appeal, for convenience we refer
to them as the firefighter agreement.
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Waterbury v. Brennan

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. In deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . [T]he moving party . . . has
the burden of showing the absence of any genuine issue
as to all the material facts . . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the [nonmoving] party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . Our review of the trial court’s decision to
grant the defendant’s motion for summary judgment is
plenary.’’ (Citations omitted; internal quotation marks
omitted.) Lucenti v. Laviero, 327 Conn. 764, 772–73,
176 A.3d 1 (2018).
I
On appeal, the defendant claims that the court
improperly concluded that no genuine issue of material
fact existed as to whether the decedent was entitled to
receive pension benefits under the administrator agree-
ment, rather than the firefighter agreement. We dis-
agree.
A
As the court noted in its decision, it is undisputed
that, when the decedent was hired as the city’s fire
chief in 1991, he had not previously been employed by
the city and had never been a member of the union.10
10
The record indicates that the decedent previously had been employed as
a firefighter in New York City before serving as an editor at Fire Department
Magazine for approximately nine years.
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228 Conn. App. 206 SEPTEMBER, 2024 9
Waterbury v. Brennan

At the time of his hire, the decedent entered into the
employment contract with the city.11 That employment
contract provides in relevant part that the decedent
‘‘shall be paid an annual salary commencing November
4, 1991 at $65,000’’; that he ‘‘shall be entitled to twenty
days vacation’’; that he ‘‘shall be entitled to sick leave
as Management personnel are entitled to’’; and that he
‘‘shall be entitled to all insurance . . . benefits and all
other fringe benefits, including pension if eligible, cur-
rently available to members of the Waterbury Munici-
pal Administrators Association.’’ (Emphasis added.)
The employment contract further provides that ‘‘[t]his
Contract embodies the whole agreement between [the
city] and [the decedent] and there are no inducements,
promises, terms, conditions or obligations made or
entered into by either party other than those contained
herein. . . . This Contract may not be changed except
by a written Agreement signed by the Mayor of [the
city] and [the decedent].’’12
‘‘Although ordinarily the question of contract inter-
pretation, being a question of the parties’ intent, is a
question of fact . . . [w]here there is definitive con-
tract language, the determination of what the parties
intended by their contractual commitments is a ques-
tion of law. . . . [T]he interpretation and construction
of a written contract present only questions of law,
within the province of the court . . . so long as the
contract is unambiguous and the intent of the parties
can be determined from the agreement’s face. . . .
Contract language is unambiguous when it has a definite
and precise meaning about which there is no reasonable
basis for a difference of opinion. . . . A court will not
11
A copy of the employment contract was appended to the city’s memoran-
dum of law in support of its motion for summary judgment.
12
The record also contains an addendum to the employment contract
dated January 6, 1995, which extended its term for an additional three years
and increased the decedent’s annual salary. Both the decedent and the city’s
mayor signed that addendum.
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Waterbury v. Brennan

torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity, and words do
not become ambiguous simply because lawyers or lay-
men contend for different meanings. . . . When only
one interpretation of a contract is possible, the court
need not look outside the four corners of the contract
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Christian v. Gouldin, 72 Conn. App. 14, 20,
804 A.2d 865 (2002).

The employment contract plainly and unambiguously
provides that the decedent may be eligible for the pen-
sion ‘‘currently available to members of the Waterbury
Municipal Administrators Association.’’ The employ-
ment contract also states that it embodied ‘‘the whole
agreement’’ between the city and the decedent and may
only be changed by written agreement of those parties.
That contract contains no reference whatsoever to
either the union or the firefighter agreement. Moreover,
the decedent and the city’s mayor never entered into
a written agreement to change the fringe benefits provi-
sion of the employment contract, which expressly pro-
vides a pension benefit to the decedent pursuant to
the administrator agreement.13 In light of the plain and
unambiguous language contained in the employment
contract, we agree with the court’s conclusion that the
decedent’s employment with the city entitled him to a
pension pursuant to the administrator agreement.

B

The defendant nevertheless argues that (1) the dece-
dent qualified for a pension under the firefighter agree-
ment and (2) the board awarded him such a pension.
Neither contention has merit.
13
We reiterate that the administrator agreement is the collective bargaining
agreement between the Waterbury Municipal Administrators Association
and the city. See footnote 8 of this opinion.
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228 Conn. App. 206 SEPTEMBER, 2024 11
Waterbury v. Brennan

1
As the court observed in its decision, the decedent
was never a member of the Waterbury Fire Department
or the union prior to being hired as fire chief by the
city. Despite that undisputed fact, the defendant main-
tains that the decedent qualified for a pension under
the firefighter agreement.
‘‘It is axiomatic that a collective bargaining agreement
is a contract.’’ D’Agostino v. Housing Authority, 95
Conn. App. 834, 838, 898 A.2d 228, cert. denied, 280
Conn. 905, 907 A.2d 88 (2006). For that reason, ‘‘[p]rinci-
ples of contract law guide our interpretation of collec-
tive bargaining agreements.’’ Honulik v. Greenwich, 293
Conn. 698, 710, 980 A.2d 880 (2009); see also Christian
v. Gouldin, supra, 72 Conn. App. 20.
Article I, § 1, of the firefighter agreement recognizes
the union ‘‘as the sole and exclusive bargaining agent
for all full-time permanent uniformed and investigatory
employees of the Waterbury Fire Department . . . .’’
It then specifies exactly who qualifies as an ‘‘employee,’’
as that term is used in the firefighter agreement, stating:
‘‘The term ‘employees or employee’ as used in this
Agreement shall refer only to those personnel who
occupy positions whose job specifications required that
the work be performed by uniformed and/or investiga-
tory members of the Waterbury Fire Department and
who are covered by the bargaining unit referred to
herein; which bargaining unit, the parties agree, does
not include the following positions and/or classifica-
tions: Fire Chief . . . .’’ (Emphasis added.) That lan-
guage plainly and unambiguously provides that the fire
chief is neither an employee nor a member of the union
for purposes of the firefighter agreement between that
bargaining unit and the city.
The defendant nonetheless argues that, read together,
article I, § 4, and article XXXIII, § 3 (1), of the firefighter
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Waterbury v. Brennan

agreement, compel the conclusion that the fire chief is
considered an employee who is eligible for a pension
under that agreement. We do not agree. Article XXXIII
is the pension portion of the firefighter agreement. Sec-
tion 3 (1) thereof provides: ‘‘The term ‘employee’ shall
be defined per Article I, [§] 1, including Article I, [§] 4
of this Agreement . . . .’’ We already have concluded
that the fire chief is categorically not an employee under
article I, § 1. The remaining question is whether the
decedent, in his capacity as fire chief, qualifies as an
employee under article I, § 4.
Article I, § 4, of the firefighter agreement provides in
relevant part that ‘‘[t]he parties . . . agree that for the
purposes of [Article XXXIII], any member promoted to
the rank-classification of Fire Chief . . . may, if he so
elects, receive the pension benefits prescribed by, and
his pension contribution will be governed by Article
XXXIII hereof.’’ For multiple reasons, we conclude that
the decedent does not meet the qualifications of that
section. First, the phrase ‘‘member promoted,’’ as used
therein, plainly refers to someone who previously was
a member of the Waterbury Fire Department. See Fire-
fighter Agreement, art. I, § 1 (explaining that firefighter
agreement pertains to ‘‘personnel who occupy positions
whose job specifications required that the work be per-
formed by uniformed and/or investigatory members of
the Waterbury Fire Department’’). It is undisputed that
the decedent never was a member of the Waterbury Fire
Department prior to his hiring as fire chief.14 Second,
the decedent was not a member who was promoted to
the rank of fire chief; the record unequivocally indicates
that he was a magazine editor for nine years prior to
his hiring by the city. See footnote 10 of this opinion.
14
In his affidavit submitted in support of the city’s motion for summary
judgment, Foster averred that ‘‘[a] review of all documents that could be
located with reasonable effort relating to [the decedent] found no documents
indicating that he held any position of employment with [the city] or its fire
department other than fire chief.’’ The defendant does not argue otherwise.
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228 Conn. App. 206 SEPTEMBER, 2024 13
Waterbury v. Brennan

Third, article I, § 4, provides that any member pro-
moted to the position of fire chief ‘‘may, if he so selects,
receive the pension benefits prescribed by, and his pen-
sion contribution will be governed by Article XXXIII
hereof.’’ That provision plainly and unambiguously
requires members promoted to the position of fire chief
to (1) make a selection to receive a pension under
the firefighter agreement and then (2) make pension
contributions in accordance with the requirements of
article XXXIII. In moving for summary judgment and
opposing the city’s motion, the defendant furnished no
evidence indicating that the decedent, following his hir-
ing as fire chief by the city, made a selection to receive
a pension under the firefighter agreement at any time
prior to filing for retirement in 1995.
There likewise is no evidence in the record before
us that the decedent made pension contributions in
accordance with the requirements of article XXXIII, as
expressly required by article I, § 4, of the firefighter
agreement. To the contrary, the evidence in the record
demonstrates that the decedent, in his four years of
employment as fire chief, made pension contributions
at rates of 5 percent and 6 percent, consistent with the
requirements of the administrative agreement.15 Article
XXXIII of the firefighter agreement, by contrast,
required pension contributions at a rate of 6 percent
from the time of the decedent’s hire until June 29, 1992,
at a rate of 7 percent from July 1, 1992 until June 30,
1995, and at a rate of 9.5 percent from July 1, 1995 until
the decedent retired on December 30, 1995.
In light of the foregoing, we conclude that no genuine
issue of material fact exists as to whether the defendant
qualified for a pension under the firefighter agreement.
15
In her affidavit, Van Deursen averred in relevant part that, ‘‘[u]pon being
hired in 1991, [the decedent] made pension contributions at the rate of
5%’’ and that, ‘‘[i]n July of 1993, [the decedent’s] pension contribution rate
increased to 6%, where it stayed until his retirement.’’
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Waterbury v. Brennan

The pleadings, affidavits, and other evidence submitted
demonstrate that the decedent (1) never was a member
of the Waterbury Fire Department or the union prior
to his hiring as fire chief, (2) was not an ‘‘employee,’’
as that term is defined in article I, § 1, of the firefighter
agreement, (3) was not a ‘‘member promoted,’’ as that
phrase is used in article I, § 4, of the firefighter agree-
ment, (4) did not make a selection to receive a pension
under the firefighter agreement upon being hired as fire
chief, as required by article I, § 4, of the firefighter
agreement, and (5) did not make pension contributions
while employed as fire chief at the rates specified in
article XXXIII, as required by article I, § 4, of the fire-
fighter agreement. The court, therefore, properly deter-
mined that the decedent did not qualify for a pension
under the firefighter agreement.

2

The defendant further claims that, irrespective of the
decedent’s entitlement to a pension under the terms of
the firefighter agreement, the board in this case
awarded him a disability pension under that agreement.
For two distinct reasons, we disagree.

a

First, the record belies the defendant’s claim. It is
undisputed that, in applying for a disability pension,
the decedent and his attorney requested a disability
pension pursuant to the terms of the firefighter agree-
ment. Appended to the defendant’s motion for summary
judgment are two letters sent to the board from the
decedent and Attorney Angelo Maragos. Those letters,
dated November 28, 1995 and November 30, 1995,
respectively, both state in relevant part that the dece-
dent was exercising his option, pursuant to article I,
§ 4, of the firefighter agreement, to receive a pension
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228 Conn. App. 206 SEPTEMBER, 2024 15
Waterbury v. Brennan

pursuant thereto. In part I B 1 of this opinion, we have
16

explained why that request was untenable, as (1) the
decedent was not a ‘‘member promoted’’ to the position
of fire chief, as that terminology is used in the firefighter
agreement, (2) there is no evidence that the decedent
ever made a selection to receive a pension thereunder
upon being hired as fire chief, and (3) there is no evi-
dence that the decedent, while employed as fire chief,
made the requisite pension contributions as mandated
by article I, § 4, and article XXXIII of the firefighter
agreement.

Although the decedent requested a pension pursuant
to the firefighter agreement, the record indicates that
the board did not grant that specific request. In its
January 11, 1996 written notice of its decision, the board
informed the decedent that it had approved his applica-
tion for a disability retirement and had awarded him
an annual pension of $86,690.78 pursuant to the terms
of the administrative agreement.17 The board’s January
11, 1996 letter also advised the decedent in relevant
part: ‘‘If you have any questions regarding your pension
or benefits, please do not hesitate to contact our office.’’
The decedent nevertheless did not raise any issue or
16
In his letter to the board, the decedent stated in relevant part: ‘‘[I] do
hereby make my election of Option one with regard to computing my pension
entitlement under [article I, § 4, of the firefighter agreement] . . . .’’ Attor-
ney Maragos similarly stated, in his letter to the board, that the decedent
‘‘makes election, pursuant to [article I, § 4, of the firefighter agreement] to
retire, as is his right.’’
17
Appended to the city’s motion for summary judgment were copies of
both the board’s January 11, 1996 written notice of its decision to the
decedent and the April 21, 2021 affidavit of Van Deursen, which indicate that
the board granted the decedent a disability pension based on the ‘‘Waterbury
Municipal Administrators Asso[ciation] (non union).’’ In addition, the dece-
dent’s pension worksheet similarly states that it was calculated in accor-
dance with the ‘‘(Management) Waterbury Municipal Administration Associ-
ation.’’ The administrative agreement sets forth pension benefits for the
Waterbury Municipal Administrators Association. See footnote 13 of this
opinion.
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16 SEPTEMBER, 2024 228 Conn. App. 206
Waterbury v. Brennan

request clarification with respect to the board’s determi-
nation that his pension was governed by the administra-
tive agreement. To the contrary, the record before us
indicates that the decedent, after receiving written
notice of the board’s decision in January, 1996, pro-
ceeded to collect his pension for more than ten years
without question. The defendant’s claim, therefore, fails
as a factual matter.
b
In addition, we note that the board’s decision to grant
the decedent a pension in accordance with the terms
of the administrative agreement is entirely consistent
with the plain and unambiguous terms of his employ-
ment contract with the city. As noted in part I A of
this opinion, that contract provides that the decedent’s
benefits may include a pension pursuant to the adminis-
trative agreement with the Waterbury Municipal Admin-
istrators Association and that the terms of the employ-
ment contract ‘‘may not be changed except by a written
Agreement signed by the Mayor of [the city] and [the
decedent].’’ In granting the decedent a pension pursuant
to the administrative agreement, the board’s decision
comports with the principle that municipal agencies
cannot bind the municipality by contract, in the absence
of express authorization in the municipal charter or the
General Statutes. See Fennell v. Hartford, 238 Conn.
809, 813, 681 A.2d 934 (1996).
Fennell is instructive in this regard. In that case, a
group of supervisory police officers brought an action
against the defendant municipality and its pension com-
mission, claiming that a statement in a pension manual
prepared by the pension commission created an implied
contract between the municipality and those officers.
Id., 811–13. In rejecting that claim, our Supreme Court
observed that ‘‘a city’s charter is the fountainhead of
municipal powers . . . . The charter serves as an
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228 Conn. App. 206 SEPTEMBER, 2024 17
Waterbury v. Brennan

enabling act, both creating power and prescribing the
form in which it must be exercised. . . . Agents of a
city, including [its boards], have no source of authority
beyond the charter. . . . In construing a city charter,
the rules of statutory construction generally apply. . . .
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 con-
tracts 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 con-
ferred by the common council, where the latter may so
delegate its powers . . . .’’ (Citation omitted; internal
quotation marks omitted.) Id., 813. ‘‘It follows that
agents of a city, including its [boards], 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.)
Id., 814.
The court then concluded, ‘‘as a matter of law, that
the pension manual created and distributed by the com-
mission could not confer any additional benefits not
provided for by the city’s charter.’’ Id., 816. As it
explained: ‘‘In order for additional retirement or pen-
sion 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.
. . . 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 employ-
ees’ retirement fund. . . . In sum, the commission was
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18 SEPTEMBER, 2024 228 Conn. App. 206
Waterbury v. Brennan

without authority to confer additional benefits through
the pension manual.’’ (Citations omitted; footnote omit-
ted.) Id., 817–18. The court further stated: ‘‘The plaintiffs
argue that in order to carry out its obligation to adminis-
ter the municipal employees’ retirement fund, the com-
mission 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.’’ Id.,
818 n.7.
In the present case, the defendant has identified no
provision in the city charter that authorized the board
to unilaterally grant the decedent a pension that is (1)
contrary to the express terms of his employment con-
tract and (2) pursuant to a collective bargaining agree-
ment under which the decedent did not qualify for a
pension. In this regard, we note that the defendant, in
moving for summary judgment, did not furnish a copy
of the entire city charter to the court, but rather
appended only select portions to her memorandum of
law. On appeal, the defendant relies on § 2767 of the
city charter.18 That reliance is unavailing, as that section
merely provides in broad terms that official actions of
the board are binding on the city. As applied to the
facts of this case, § 2767 mandates that the board’s
decision to grant a pension to the decedent in accor-
dance with the administrative agreement, as communi-
cated to the decedent by written notice on January 11,
1996, is binding on the city.
18
Section 2767 of the city charter provides in relevant part: ‘‘All acts,
actions, payments, failures to pay, pensions, contributions from employees
and proceedings of the [board] . . . are validated, confirmed, approved,
ratified and made binding on the [city] and the participants in the retire-
ment system.’’
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228 Conn. App. 206 SEPTEMBER, 2024 19
Waterbury v. Brennan

The defendant also overlooks the fact that the city
charter contains a distinct section titled ‘‘Adjustment
of pensions paid under retirement system.’’ It provides
in relevant part: ‘‘Notwithstanding the provisions of the
[city charter] or any special act or any requirements in
Section 2-14 of the General Statutes . . . the [board]
with the approval of the board of aldermen may by
appropriate action, including approval by a majority
vote . . . of said [board] and a majority vote of the
board of aldermen, with respect to monthly payments
of [disability pensions] . . . to retired employees . . .
including retired teachers, firemen, policemen, officer
participants and regular participants as such classifica-
tions of retired employees are established by the [city
charter], provide for adjustments in the amount of
such monthly payments as deemed necessary by said
[board] and the board of aldermen . . . . Any actions
taken by the [board] and the board of aldermen . . .
in accordance with this act are hereby validated and
. . . binding upon the [c]ity.’’19 (Emphasis added.)
Waterbury City Charter, Div. 2, § 2711 (1989 Supp.).
Section 2711 thus demonstrates that, when the city
charter intends to confer authority on the board to
modify the pension benefits of a particular person, it
does so explicitly. See Stafford v. Roadway, 312 Conn.
184, 194, 93 A.3d 1058 (2014) (‘‘[i]t is a well settled
principle of statutory construction that the legislature
knows how to convey its intent expressly . . . or to
use broader or limiting terms when it chooses to do so’’
(citation omitted; internal quotation marks omitted)).
In the present case, it is undisputed that the dece-
dent’s employment contract with the city provided for
a pension benefit pursuant to the administrative agree-
ment. To the extent that the defendant argues that the
board intended to deviate from the plain terms of that
19
A copy of that section of the city charter was submitted in support of
the defendant’s motion for summary judgment.
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20 SEPTEMBER, 2024 228 Conn. App. 206
Waterbury v. Brennan

employment contract and grant the decedent all of the
benefits contained in the firefighter agreement,20 § 2711
of the 1989 Supplement to the city charter provides little
recourse, as that section only authorizes adjustments
to the amount of monthly pension payments.
Moreover, assuming arguendo that § 2711 of the 1989
Supplement to the city charter could be broadly con-
strued to encompass pension benefits generally, the
plain language of that section obligated the board to
secure the approval of a majority of the board of alder-
men in order to make such an adjustment to the dece-
dent’s pension benefits. There is no suggestion by the
defendant, nor evidence in the record before us, that
such approval was sought or granted by the board of
aldermen. On the record before us, we therefore con-
clude that no genuine issue of material fact exists as
to whether the board possessed authority under the
city charter to unilaterally confer a pension benefit on
the decedent pursuant to the firefighter agreement.21
20
The defendant claims that the board granted the decedent all of the
benefits contained in the firefighter agreement, including the provision per-
taining to the offset of § 7-433c benefits. That provision is contained in
article XXXIII, § 11, of the firefighter agreement and provides in relevant
part: ‘‘The parties hereto agree that . . . an employee who applies for, and
receives, a disability pension [pursuant to § 7-433c] shall be entitled to, and
shall receive, a maximum disability pension of [76 percent] of BASE PAY.
. . . The parties agree that the provisions of this Section shall not apply
to, and shall not require a reduction of, any specific injury award [pursuant
to § 7-433c].’’
21
The defendant also claims that the board’s handling of her spousal
pension demonstrates that it ‘‘treated [the decedent’s] disability pension
as a pension under the firefighter contract,’’ as reflected on a ‘‘pension
worksheet.’’ That pension worksheet plainly states that it is a pension work-
sheet for ‘‘(Management) Waterbury Municipal Administration Association’’
and—like the written notice sent by the board to the decedent on January
11, 1996—indicates that the pension benefit was calculated pursuant to
the administrative agreement. The defendant nevertheless claims that the
undisputed fact that she was granted a spousal pension in excess of that
to which she was entitled under the administrative agreement demonstrates
an intention on the part of the board to grant the decedent a pension pursuant
to the firefighter agreement. In light of our conclusion that nothing in the
city charter authorized the board to grant a pension to the decedent pursuant
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228 Conn. App. 206 SEPTEMBER, 2024 21
Waterbury v. Brennan

See Fennell v. Hartford, supra, 238 Conn. 818 n.7 (‘‘[t]he
fact that the [pension 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’’).
II
The defendant alternatively contends that § 2761 of
the city charter does not permit the city to utilize the
decedent’s pension benefits to offset heart and hyper-
tension benefits due to him. In response, the city sub-
mits that this claim is unpreserved. We agree with
the city.
A
Our rules of practice require a party, as a prerequisite
to appellate review, to distinctly raise its claim before
the trial court. See Practice Book § 5-2 (‘‘[a]ny party
intending to raise any question of law which may be
the subject of an appeal must . . . state the question
distinctly to the judicial authority’’); Practice Book § 60-
5 (‘‘[t]he court shall not be bound to consider a claim
to the firefighter agreement, that claim is unavailing. Any miscalculation of
the defendant’s spousal pension benefits by the board cannot create addi-
tional pension benefits for the decedent. See Fennell v. Hartford, supra,
238 Conn. 817–18.
We note that the city has not sought a reduction of the defendant’s spousal
pension as part of this declaratory judgment action, which she has received
without interruption for almost two decades. The city merely sought a
declaration that, due to the offset provision of the city charter, it is not
obligated to make further payments on the decedent’s heart and hyperten-
sion claim. As the city averred in its objection to the defendant’s motion
for reargument and reconsideration: ‘‘[The defendant] . . . assert[s] that
the city cannot offset pension payments made to Janet Brennan in her
capacity as surviving spouse. . . . But the city never has sought to do so.
The city asserts that no additional payments are owed to the estate [of the
decedent] because the pension payments made to [the decedent] during his
lifetime would have been subject to an offset covering 100 percent of any
[permanent partial disability] payments allegedly owed to him.’’ (Citation
omitted; emphasis omitted.)
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22 SEPTEMBER, 2024 228 Conn. App. 206
Waterbury v. Brennan

unless it was distinctly raised at the trial or arose subse-
quent to the trial’’). For that reason, we repeatedly have
held that ‘‘we will not decide an issue that was not
presented to the trial court. To review claims . . . not
raised before the trial court would be nothing more
than a trial by ambuscade of the trial judge.’’ (Internal
quotation marks omitted.) State v. Martin, 110 Conn.
App. 171, 180, 954 A.2d 256 (2008), appeal dismissed,
295 Conn. 192, 989 A.2d 1072 (2010); see also State v.
Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013) (‘‘the
sina qua non of preservation is fair notice to the trial
court’’); State v. Favoccia, 119 Conn. App. 1, 14, 986 A.2d
1081 (2010) (‘‘[i]t is axiomatic that issues not properly
raised before the trial court ordinarily will not be con-
sidered on appeal’’), aff’d, 306 Conn. 770, 51 A.3d
1002 (2012).

The record reveals, and the defendant does not dis-
pute, that she did not raise her claim regarding the
proper application of the offset provision of § 2761 of
the city charter at any time prior to the court’s June
27, 2022 decision on the parties’ respective motions for
summary judgment.22 Although the defendant thereafter
filed a motion for reargument and reconsideration, she
22
The defendant’s assertion that this claim arose subsequent to the court’s
ruling on the motions for summary judgment is unavailing. The entire basis
for the city’s declaratory action was its assertion that the offset provision
in question operates to bar any further payments of heart and hypertension
benefits to the decedent’s estate. In its complaint, the city sought a declara-
tory judgment that ‘‘[t]he offset applies to all amounts in contention, the
‘net’ amount in contention is zero and the city does not have to pay the
defendant any additional [heart and hypertension] benefits as a matter of
law’’ and that ‘‘[t]he judgment for benefits issued by the [commissioner]
would result in a double recovery explicitly forbidden by the [city charter]
and Russo, therefore the city does not have to pay the defendant any monies
as a matter of law . . . .’’ The city similarly argued, in its memorandum of
law in support of its motion for summary judgment, that ‘‘any [heart and
hypertension] benefits to which [the decedent] may have been entitled would
have been offset, in their entirety, from the [pension] sums already being
paid to him by the city.’’
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228 Conn. App. 206 SEPTEMBER, 2024 23
Waterbury v. Brennan

likewise did not advance such a claim in that written
motion. Rather, the record indicates that the defendant
raised this claim for the first time during argument
before the court on September 26, 2022.23
It is well established that, generally speaking, ‘‘[r]ais-
ing an issue for the first time in a motion to reargue
will not preserve that issue for appellate review.’’ White
v. Mazda Motor of America, Inc., 313 Conn. 610, 634,
99 A.3d 1079 (2014). For that reason, the court correctly
concluded that the defendant’s offset provision claim
was not properly preserved. Mindful that our review of
a court’s denial of a motion to reargue is pursuant to
the abuse of discretion standard; see Klass v. Liberty
Mutual Ins. Co., 341 Conn. 735, 740–41, 267 A.3d 847
(2022); and that motions for reargument and reconsider-
ation are not to be used as an opportunity for a second
bite of the apple; see Hudson Valley Bank v. Kissel,
303 Conn. 614, 624, 35 A.3d 260 (2012); we further con-
clude that the court did not abuse its discretion in
denying the defendant’s motion on that basis.
B
The defendant also seeks to prevail on her unpre-
served claim pursuant to the plain error doctrine. As
our Supreme Court has explained, ‘‘[t]he plain error
doctrine . . . is not . . . a rule of reviewability. It is
a rule of reversibility. That is, it is a doctrine that this
court invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised
23
The defendant also raised the issue of the tax implications of offsetting
§ 7-433c benefits due to pension payments for the first time at oral argument
on her motion for reargument and reconsideration. On appeal, we do not
address that unpreserved claim, as the defendant has not distinctly briefed
that issue in accordance with our rules of practice. See Practice Book §§ 67-
4 (b) and (e); see also Weber v. Pascarella Mason Street, LLC, 103 Conn.
App. 710, 713–14 n.2, 930 A.2d 779 (2007). Rather, she mentions that claim
in a mere sentence of the supervisory authority section of her principal
appellate brief.
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Waterbury v. Brennan

at all in the trial court, nonetheless requires reversal
of the trial court’s judgment . . . for reasons of policy.
. . . [P]lain error review is reserved for only the most
egregious errors. When an error of such a magnitude
exists, it necessitates reversal.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. McClain, 324
Conn. 802, 813–14, 155 A.3d 209 (2017). The defendant’s
burden under the first prong of that doctrine is to dem-
onstrate the existence of an error that is ‘‘obvious in
the sense of not debatable. . . . [T]his inquiry entails
a relatively high standard, under which it is not enough
for the defendant simply to demonstrate that [her] posi-
tion is correct. Rather, the party seeking plain error
review must demonstrate that the claimed impropriety
was so clear, obvious and indisputable as to warrant the
extraordinary remedy of reversal.’’ (Internal quotation
marks omitted.) State v. Coccomo, 302 Conn. 664, 685,
31 A.3d 1012 (2011).
On appeal, the defendant claims that the court’s deci-
sion to render summary judgment in favor of the city
was predicated on ‘‘an obvious misinterpretation of
[§ 2761 of the city charter] as permitting the [city] to
offset [§ 7-433c] benefits against pension benefits.’’ In
her view, § 2761 of the city charter permits a reduction
in pension payments as a result of offsetting § 7-433c
payments, but not the converse.
Section 2761 of the city charter provides: ‘‘No pay-
ments of retirement, disability or death benefits shall
be allowed or paid under the provisions of this act so
long or for such period as payments are being made
by [the city] under the provisions of the General Statutes
relating to workers’ compensation except when such
payments would exceed the payments made under the
provisions of the Workers’ Compensation Act. In such
cases the pensioner shall receive, in addition to his
payments under the Workers’ Compensation Act the
difference between that amount and the amount which
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228 Conn. App. 206 SEPTEMBER, 2024 25
Waterbury v. Brennan

he would have received under the provisions of this
act.’’ In Russo v. Waterbury, supra, 304 Conn. 714, our
Supreme Court concluded that § 2761 of the city charter
‘‘allows the city to offset the . . . pension benefits [of
municipal employees] based on their heart and hyper-
tension benefits’’ under § 7-433c.24
Although the defendant now claims that the court
committed an ‘‘obvious misinterpretation’’ of § 2761 of
the city charter to permit the offset of § 7-433c benefits
due to pension payments made by the city, that error
apparently was not obvious to the defendant’s counsel,
who did not raise that claim at any time between the
commencement of this action in December, 2015, and
the court’s decision to grant the plaintiff’s motion for
summary judgment more than six and one-half years
later. That error also was not obvious to the defendant
at the time that she filed her motion for reargument
and reconsideration in July, 2022. While the defendant
raised four distinct grounds in that motion, she did not
claim that the court had misinterpreted § 2761 of the
city charter.
Moreover, in Russo, our Supreme Court, in consider-
ing the applicability of § 2761 of the city charter, empha-
sized that ‘‘[t]he purpose of . . . § 7-433c is to protect
against a wage loss, not to give some firemen and police-
men a double recovery for the same wage loss.’’ (Inter-
nal quotation marks omitted.) Id., 730. If the defendant’s
construction of § 2761 of the city charter is correct—
and § 7-433c benefits cannot be offset by pension pay-
ments made by the city—the result would be a double
recovery by the decedent for the same wage loss. In
our view, whether the city charter intended to permit
that double recovery is, at the very least, debatable.25
24
In Brennan I, the Supreme Court noted that ‘‘§ 7-433c benefits are
subject to pension offsets and caps.’’ Brennan v. Waterbury, supra, 331
Conn. 692.
25
We reiterate that, in moving for summary judgment on her claim regard-
ing the proper application of § 2761 of the city charter, the defendant did
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26 SEPTEMBER, 2024 228 Conn. App. 206
Waterbury v. Brennan

As our Supreme Court has noted, ‘‘[p]lain error is a
doctrine that should be invoked sparingly.’’ (Internal
quotation marks omitted.) State v. Jamison, 320 Conn.
589, 596, 134 A.3d 560 (2016). The defendant’s burden
under the first prong of that doctrine is to demonstrate
proof of ‘‘an error so obvious on its face that it is
undebatable.’’ State v. McClain, supra, 324 Conn. 820
n.13. On the record before us, we conclude that the
defendant has not met that burden.26
The judgment is affirmed.
In this opinion the other judges concurred.

not furnish the court with a complete copy of the city charter. The inadequacy
of the record in that respect impairs our ability to conclude that the court’s
interpretation of the charter in the present case was obviously and indisput-
ably incorrect. See State v. Coccomo, supra, 302 Conn. 685 (party seeking
review under plain error doctrine must demonstrate ‘‘obvious and indisput-
able’’ error (internal quotation marks omitted)); Putala v. DePaolo, 225
Conn. 378, 386, 623 A.2d 989 (1993) (court required to construe section of
municipal charter ‘‘in the context of the charter as a whole with a view
toward reconciling its parts in order to obtain a sensible and rational overall
interpretation’’ (internal quotation marks omitted)); Kusterer v. Sheehy, 2
Conn. App. 712, 714–15, 483 A.2d 1105 (1984) (‘‘[t]o construe a specific
provision in the charter it is necessary to look at the charter as a whole’’).
26
The defendant also asks us to exercise our supervisory authority to
review her unpreserved claim. See State v. Turner, 334 Conn. 660, 686–87,
224 A.3d 129 (2020). We decline that invitation.