Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:01-cv-02366-EBB

Document 99

Filed 03/21/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT SAKKARA BOGLE-ASSEGAI, Plaintiff v. LISA MARIE BIGELOW, In Her Individual Capacity, Defendant : : : : : : Consolidated CIVIL ACTION NO. 3:01CV2366 (EBB) (Lead Case)

SAKKARA BOGLE-ASSEGAI, By Next Friend Femi Bogle Assegai v. CAPITOL REGION EDUCATION COUNCIL and MARK D. O'DONNELL, in his Official and Individual Capacities

: : : : : : : :

3:01-CV-2367 (EBB)

MARCH 17, 2005

STATE'S REPLY TO CAPITOL REGION EDUCATION COUNCIL'S RESPONSE TO MOTION TO CORRECT PART OF COURT'S RULING

The state respectfully replies to Capitol Region Education Council [CREC]'s Response to the state's Motion to Correct Part of Court's Ruling, as follows: 1. The State does not seek to overturn the Court's decision, granting CREC's motion for summary judgment, but only requests a correction of the Court's factual finding that CREC and its employee, Mark O'Donnell, were arms of the State of Connecticut and entitled to the same immunity as the state.

Case 3:01-cv-02366-EBB

Document 99

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2. As to this issue, CREC need not conduct any discovery, as it suggests in its brief (see n. 2, page 3 of CREC's response to the states' motion). CREC has, or should have, a better knowledge of its own workings than the plaintiff or the state, including all facts necessary to determine whether it is a state agency. (See, e.g., CREC website: http://www.crec.org, pages attached to the State's Feb. 17, 2004 memorandum as Exhibit G). For example, CREC knows or should know, better than the plaintiff and as well as the state, that (1) it is not an executive, judicial or legislative agency or institution of the state or of any of the constitutional offices; (2) local boards of education, not the state created it; (3) those local boards created it to carry out local functions, not one integral to state government; (4) it is financially dependent on the local boards, not the state; (5) its officers, directors and trustees are not state functionaries; (6) it is not operated by state employees; (7) its own board, not the state, controls it; (8) the state does not closely monitor its budget, expenditures and appropriations; and (9) it, not the state, would pay any judgment entered against it. (See, e.g., CREC website). CREC also knows or should know, better than the plaintiff and as well as the state, that (1) the Attorney General's office does not represent it; (2) it is not subject to state budgetary approval; (3) its employees are not bound by the state's ethics rules; (4) it is not subject to the provisions of the Freedom of Information Act which apply to state agencies; (5) its employees do not receive state employee benefits; (6) the state does not participate in any way in the hiring or termination of its employees or in determining their compensation; (7) it is not prohibited, as are state agencies, from maintaining a cash balance from year to year; (8) it is not prohibited, as are state

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agencies and quasi-public agencies, from retaining lobbyists; (9) any bonds it issues are not the obligation of the state; (10) it has the power to sue and be sued; and (11) its operations budget is not appropriated for in the state's legislative budget. 3. The state makes its request only to correct a mistake in fact, so that judges and parties in any future proceedings involving CREC or other RESCs are not confused or misled by the finding and so this Court's decision is consistent with the rules set by the Connecticut Supreme Court and the Second Circuit.

DEFENDANT CENTRAL CONNECTICUT STATE UNIVERSITY BY: RICHARD BLUMENTHAL ATTORNEY GENERAL ____________________________________ Linsley J. Barbato Assistant Attorney General Federal Bar No. ct 03751 55 Elm Street P. O. Box 120 Hartford, CT 06141-0120 Telephone: (860) 808-5160 Facsimile: (860) 808-5384 E-mail: [email protected]

CERTIFICATION

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I hereby certify that a copy of the foregoing reply was mailed this 17th day of March, 2005, postage prepaid, to the following: Cynthia R. Jennings Barrister Law Group, LLC 211 State Street, 2nd Floor Bridgeport, CT 06604; and Linda Yoder Shipman & Goodwin, LLP One American Row Hartford, CT 06103-2819. In addition, a courtesy copy was provided to the Chambers of: The Honorable Ellen Bree Burns United States District Judge United States District Court 141 Church Street New Haven, CT 06510

______________________________ Linsley J. Barbato Assistant Attorney General

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