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DOCKET NO.: FBT-CV-23-6128401-S : SUPERIOR COURT
HOUSING AUTHORITY OF THE CITY OF
BRIDGEPORT : JUDICIAL DISTRICT OF FAIRFIELD
V. : AT BRIDGEPORT
JOHN GOMES : MAY 30, 2024
PLAINTIFF’S MEMORANDUM OF LAW IN
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
The Plaintiff Housing Authority of the City of Bridgeport d/b/a Park City Communities
(“PCC”) submits the following Memorandum of Law and annexed Affidavit of Jillian V.
Baldwin in opposition to the Motion to Dismiss filed by the Defendant John Gomes (“Gomes”),
See Dkt. Entry Nos. 103.00; 104.00.
I. INTRODUCTION
This is a bill of discovery filed by PCC, a housing authority. Defendant Gomes was a
primary candidate for Mayor of Bridgeport. He publicly accused PCC of conspiring with the
campaign of his opponent, incumbent Mayor Joseph Ganim, to deny his campaign access to
PCC’s housing developments while allowing access to the Ganim campaign. The purpose of this
petition is to obtain discovery from Gomes as to what, if any, basis he had for his accusation,
which is false and defamatory.
II. SUMMARY OF ARGUMENT
Gomes’ argument is simply that PCC is a public body and that, under the First
Amendment, all public bodies lack standing to sue for defamation. PCC unquestionably is
public. But it is not governmental. It is well established in Connecticut that, once created,
housing authorities are independent of government. All public entities are not governmental in
nature. And only governmental entities – not all public entities – lack standing to sue for
defamation.
III. FACTS
PCC is a housing authority that serves approximately 12,000 people. See Exhibit A,
Affidavit of Jillian Baldwin, PCC’s CEO (“Baldwin’s Aff.”) ¶ 4. Conn. Gen. Stat. § 8-40 creates
a housing authority in each municipality, to become active in each municipality upon resolution
of its governing body. Under Conn. Gen. Stat. § 8-41, commissioners are appointed for,
generally, five-year terms by either the governing body of the municipality (in the case of towns)
or its chief executive officer (in the case of cities). Commissioners may only be removed for
cause after an opportunity for hearing and notice. Conn. Gen. Stat. § 8-43.
Housing authorities were originally created in the 1930s to build and operate public
housing projects with federal funding under the United States Housing Act of 1937. Baldwin
Aff. ¶ 5; Michelle Adams, Separate and Unequal: Housing Choice, Mobility, and Equalization
in the Federally Subsidized Housing Program, 71 Tul. L. Rev. 413, 434-35 (1996) (“Adams”).
This model of providing government-assisted or facilitated affordable housing was abandoned
many decades ago. Baldwin Aff. ¶ 5; Adams at 440. Today, affordable housing is developed by
both private developers and housing authorities playing by the same rules. Housing authorities
such as PCC rely on the same sources of financing as private affordable housing developers.
These include loans from banks, private non-bank lenders and public agencies such as, in
Connecticut, the state Department of Housing (“DOH”) and the Connecticut Housing Finance
Authority (“CHFA”). Baldwin Aff. ¶ 5.
A primary source of financing for many affordable housing projects is federal Low
Income Housing Tax Credits (“LIHTCs”). Baldwin Aff. ¶ 6. LIHTCs incentivize for-profit
investors to make equity investments in affordable housing projects, by providing federal tax
credits for qualified projects. Id. To qualify for tax credits, a project must receive an allocation
2
of tax credits and must be built and operated in accordance with LIHTC regulations. Id. CHFA
is authorized by federal law to award each year a limited amount of tax credits for projects in
Connecticut. Each year, demand for LIHTCs exceeds the supply. Id. Housing authorities such as
PCC - typically acting through wholly owned subsidiaries, which partner with for-profit
investors – compete equally with private developers and other housing authorities for LIHTC
awards. Id. The reputation of any LIHTC applicant is a factor in CHFA’s decision-making
process. Id; Connecticut Housing Finance Authority, Low Income Housing Tax Credit
(“LIHTC”) Program Guideline, 2024 and 2025 § IV(A). And, if an award is obtained, the
reputation of the sponsor-developer is important in procuring a LIHTC investor, especially since
the tax credits are dependent on the sponsor-developer complying strictly with LIHTC
regulations. Id.
Housing authorities such as PCC often partner with private affordable housing developers
to co-develop affordable housing projects. Id. ¶ 7. To be successful, they also must maintain
business relationships with many other parties such as contractors, design professionals and
many others. Id. ¶ 8. Developing affordable housing in the way described above is a vital part
of PCC’s mission. Id. ¶ 9.1 To be successful, any affordable housing developer - including a
housing authority such as PCC - must be able to obtain financing and to develop and maintain
strong business relationships with many parties, including those noted above. Id. ¶ 10.
For many years, PCC was hampered in these efforts by reputational issues associated
with, among other things, its long-standing designation by HUD as a “troubled” housing
authority. Id. Over the last several years in particular, PCC has worked hard to restore its
1
PCC also performs other functions, such as operating legacy public housing projects. Those are gradually being
replaced by affordable housing developed in the way described above. Id.
3
reputation, with considerable success. Id. In April 2023, HUD removed PCC from its list
“troubled” housing authorities. Id.
In 2023, Gomes was a candidate for Mayor of Bridgeport – running against incumbent
Mayor Joseph Ganim in the Democratic Party primary election held on September 12, 2023. He
was featured in a broadcast report aired by Fox 61/WTIC on September 12, 2023, and in related
articles on its website. Id. ¶ 10. The primary topic of the broadcast was an illegal ballot stuffing
incident involving the campaign of incumbent Mayor Ganim. The broadcast and article also
included false claims ascribed to Gomes that PCC had conspired with the Ganim campaign to
exclude his campaign from its properties while permitting access by the Ganim campaign and its
associated slate of candidates. Id. The article includes the following statements from the
broadcast:
The Gomes campaign claims Ganim conspired with property
managers and used his authority as mayor to block building
access to his challenger.
“In some instances, those who were elected and on the slate
with the other team, worked out with the managers of those
facilities and purposedly did not allow us to have access
whatsoever,” said Gomes.
Id.
Gomes’ accusation that the management of PCC conspired with the Ganim campaign, to
abuse its control over public property and to skew the democratic process, was an accusation of
corruption and lack of integrity. That was his obvious point – and why Fox61 considered it
newsworthy. His accusation was wholly false and baseless. Id. ¶ 12. It has set back PCC’s
efforts to restore its reputation. Id.
IV. ARGUMENT
4
The Free Speech Clause of the First Amendment protects all criticism of government,
even defamatory criticism. New York Times Co. v. Sullivan, 376. U.S. 254, 291 (1964). Gomes’
argument incorrectly assumes that the terms “government” and “public entity” are
interchangeable. None of the decisions Gomes cites use the phrase “public entity” or the like in
describing the kind of plaintiff that cannot sue for defamation. They use – exclusively – the
terms “government,” “governmental” or “arm of government.” As discussed below, the case law
that Gomes himself cites makes clear that public entities can be nongovernmental and, if they
are, they can sue for defamation.
Almost all of the cases cited by Gomes involve municipalities or school districts. There
is no question such entities are governmental. The governmental nature of the entity was not at
issue in any of these decisions. Such cases shed no light on whether or under what circumstances
particular public entities should be regarded as non-governmental in nature such that they lack
standing to sue for defamation. The one decision discussed by Gomes that does shed light on
this issue shows why Gomes’ assumption that all public entities are governmental is wrong.
That is Cox Enterprises v. Carroll City/County Hospital Authority, 247 Ga. 39 (1981). This is the
only decision cited by Gomes that addresses the issue of when a public entity should be treated
as governmental for purposes of the Free Speech Clause. Gomes appears to rely heavily on this
decision. There, the court considered whether a city/county hospital authority created under
Georgia law was governmental in nature. It considered and weighed numerous sometimes
competing factors before concluding that, under Georgia law, a hospital authority should be
treated as governmental in nature. It concluded that the authority was an instrument of
government because it was “merely the way the government has chosen to do its business in this
instance.” 247 Ga. at 45.
5
The public nature of Georgia hospital authorities is obvious and was not at issue in Cox.
The Carroll City/County Hospital Authority was established pursuant to a Georgia statute that
created such authorities in each county or municipality. See O.C.G.A. § 31-7-72. Under
Gomes’ argument, the public nature of such authorities should settle the matter. But Cox makes
clear that, at least where an entity is not clearly governmental, the determination of whether a
public entity should be considered as governmental for purposes of the Free Speech Clause is
highly fact specific and nuanced. The court must consider and weigh numerous competing
factors to assess whether a public entity is governmental.
The starting point here, of course, is what a housing authority is. As noted, housing
authorities were originally created in the 1930s to build and operate public housing projects with
federal money. Adams, supra, at 433. The United States Housing Act of 1937 required that
funds appropriated under the Act be used only by “public housing authorities” to be established
by states, counties or municipalities. See 42 U.S.C. § 1437(b) (public housing authority
organization); 42 U.S.C. § 1437a(b)(6) (definition of “public housing agency”). In Connecticut
this was accomplished by Conn. Gen. Stat. § 8-40, et seq., which created housing authorities
within each municipality. Like all recipients of federal funds, housing authorities must follow
certain federal regulations. Adams, supra, at 434 n. 79. But housing authorities were intended
by Congress to be decentralized and autonomous. Id.
The non-governmental nature of a housing authority under Connecticut law is well
established. In Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988) the Court
considered whether a housing authority (the same one at issue here, in fact) was an agent of the
City of Bridgeport. After noting that “the city has no power to control the actions of [the housing
authority]”, the Court held that “once created [a housing authority] becomes an autonomous
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body, subject only to the limits of power imposed by law…[They] are not instruments of the
government created for its own uses or subject to its direct control.” (internal citation and
quotation marks omitted) (emphasis added). 280 Conn at 185-86. Our Supreme Court could not
have more definitively stated that housing authorities are not part of government or arms of
government 2. Gordon is dispositive.
Georgia hospital authorities, by contrast, were found by the Cox court to be instruments
of government – exactly what the Gordon court held Connecticut housing authorities are not. As
aptly summarized in a later decision: “After careful analysis, the court in Cox Enterprises
concluded that hospital authorities are instrumentalities of the state, i.e., they are the manner in
which the state has determined to do ‘its business.’” Crosby v. Hospital Auth., 93 F.3d 1515,
1524 (1996).
Although further analysis is not necessary given Gordon’s clear holding that housing
authorities are not governmental, a review of the differences between Georgia hospital
authorities and Connecticut housing authorities nonetheless reinforces why Connecticut housing
authorities are non-governmental. While there are some common features, those are all features
common to virtually all public entities and, in some cases, many private entities. For example,
like Georgia hospital authorities and Connecticut housing authorities, most if not all public
bodies are created pursuant to an enabling statute that states they are public bodies. Likewise, for
example, all public bodies – and many private entities – are tax exempt, like Georgia hospital
2
Gordon relied in part on Rhode Island Supreme Court’s decision in Housing Authority v. Fetzik, 110 R.I. 26
(1972). There, the court held:
A housing authority is more akin to the ordinary private corporation than to a municipal
corporation. We hold, therefore, that a housing authority, such as the plaintiff, is a person
within the meaning of the fourteenth amendment and therefore has standing to challenge the
constitutionality of a state statute under the due process and equal protection clauses of that
amendment.
Whether a housing authority is a “person” within the meaning of the Fourteenth Amendment having standing to sue
to challenge the constitutionality of a state statute is highly apposite to whether it has standing to sue for defamation.
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authorities and Connecticut housing authorities. But, with respect to features that go to the heart
of whether a public entity is part of government, there are critical differences.
One fundamental indicium of whether a public entity is governmental is whether its
enabling legislation says it is. The Cox court rightly placed significant weight on statutory
language expressly stating that Georgia hospital authorities are created to exercise essential
government functions. No such language appears in Conn. Gen. Stat. § 8-40 et seq.
The Cox court also noted that the power to tax is an important attribute of government
and is an important part of the reason why government is not permitted to sue its citizens for
defamation – because government should not be able to use tax revenues collected from its
citizens to silence criticism by its citizens. 247 Ga. 39 at 41 n. 2; 45. It was therefore important
to the Cox court that, while Georgia hospital authorities have no direct power to tax, their
enabling statute gives county or municipal government the power to levy a special tax to fund
hospital authorities. Id. at 44; O.C.G. § 31-7-84. Connecticut housing authorities have no taxing
power at all, direct or indirect.
Another strong indication that Connecticut housing authorities are not part of
government is that Gomes cannot seem to identify what level or branch of government he claims
it is a part of. If they are instruments of government, Gomes should at least be able to say what
level or branch of government they are an instrument of. Although at times he seems to claim
PCC is part of the City of Bridgeport, he also associates it, variously, with the state or federal
government. If PCC is an instrumentality of government, it would have to be an instrumentality
of federal, state or local government. But all can be ruled out as a clear matter of law, as follows.
PCC is not an instrumentality of the City of Bridgeport. As noted, it is well established
that housing authorities are not agencies or instrumentalities of municipal government. Austin v.
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Housing Authority of Hartford, 143 Conn. 338, 349 (1956) (“The housing authority is a distinct
corporate entity. It is not an agency of the City of Hartford”) (citation to predecessor to Conn.
Gen. Stat. 8-40 omitted); Gordon v. Bridgeport Housing Authority, supra at 185-6. Housing
authorities are also not political subdivisions of the state – which is why they have no
governmental immunity. Quinones v. New Britian Housing Authority, 1993 WL 329291, 1992
LEXIS (Conn. Super. Ct. 1992) (housing authorities not political subdivisions of state, and thus
have no governmental immunity); Majette v. New London Housing Authority, 2005 LEXIS 1914
(Conn. Super. Ct. 2005) (accord).
PCC is not an instrumentality of the State of Connecticut. Housing authorities are,
obviously, not part of the executive, legislative or judicial branches of the state. They are also
not found among the list of state “quasi-public agencies” as defined in Conn. Gen. Stat. § 1-
120(1)3.
PCC is not an instrumentality of the United States. It is equally well established that
housing authorities are not instrumentalities of the federal government. See Correlated Dev.
Corp. v. United States, 566 F.2d 515, 519-22 (Ct. Cl. 1977) (HUD not liable on contracts
executed by public housing agency); Perez v. United States, 444 F. Supp. 623, 626 (D.P.R.
1978), aff’d 594 F.2d 280 (1st Cir. 1979) (public housing agency not an agent of federal
government, thereby insulating United States from vicarious tort liability); Harris v. Lynn, 411 F.
3
The enabling statute of each such “quasi-public agency,” unlike Conn. Gen. Stat. § 8-40, expressly states that the
agency is an “instrumentality” of the state or a subsidiary of such an instrumentality. See Conn. Gen. Stat. § 32-35,
(Connecticut Innovations, Inc.); § 10a-179 (Connecticut Health and Educational Facilities Authority); §10a-179a,
(Connecticut Higher Education Supplemental Loan Authority); § 10a-201 (Connecticut Student Loan Foundation); §
8-244 (Connecticut Housing Finance Authority); § 8-244b (State Housing Authority (f/k/a Connecticut Housing
Authority)); § 22a-261 (Materials Innovation and Recycling Authority); § 32-601 (Capital Region Development
Authority); § 12-802 (Connecticut Lottery Corporation); § 15-120bb (Connecticut Airport Authority); § 38a-1081
(Connecticut Health Insurance Exchange (d/b/a Access Health CT)); § 16-245n (Connecticut Green Bank); § 15-31a
(Connecticut Port Authority); § 8-169ii (Connecticut Municipal Redevelopment Authority); § 10-357a (State
Education Resource Center); and § 31-49f (Paid Family and Medical Leave Insurance Authority).
9
Supp. 692, 693, 695 (E.D. Mo. 1976), aff’d, 555 F.2d 1357 (8th Cir. 1977), cert. denied, 434 U.S.
927 (1977) (federal government is neither equitable nor real owner of land owned by housing
authority).
Gomes does not address the question of what a housing authority is because he
incorrectly assumes that it suffices that a housing authority is a public entity. Rather than
address the nature of housing authorities under Connecticut law, he relies on a series of irrelevant
factual claims based on documents produced by PCC and the deposition of its Executive
Director, Jillian Baldwin. See Gomes’ Memorandum of Law at 1-3. Most show nothing more
than PCC is public, which PCC has never disputed. Many are frivolous. These include the
following:
Gomes apparently claims that PCC is a board or commission of the City because
an unknown employee of or vendor for the City – whose understanding of the
nature of a housing authority evidently differed from that of the Connecticut
Supreme Court – listed PCC as a City board or commission on the City’s website.
Gomes apparently claims that PCC is a part of the City of Bridgeport because
PCC elected to incorporate the City’s code of ethics by reference into its own
separate and extensive code of ethics.4
Gomes apparently claims that PCC is part of the City of Bridgeport because
housing authority employees are permitted to participate in the Connecticut
Municipal Employee Retirement System. See Conn. Gen. Stat. § 7-425(l)
(including “housing authority” included within definition of “municipality” for
4
Gomes gratuitously criticizes PCC’s CEO, Jillian Baldwin, for supposedly not being aware that PCC is “subject
to” the City Code of Ethics, when PCC is not in fact “subject to” the City’s Code in the sense that was plainly meant
– which was that PCC is part of or subordinate to City government.
10
purposes of Municipal Employee Retirement System). But in those sections of
the General Statutes that actually concern the nature and powers of municipalities,
the word “municipality” is defined in a way that excludes housing authorities.
See Conn. Gen. Stat. 7-130a (re general powers of municipalities); 1-187 (re
municipal characters and special acts).
Gomes apparently claims that PCC is part of the City of Bridgeport because Ms.
Baldwin (who has been with PCC for four years) appeared at press conferences
with the Mayor of the City of Bridgeport three times. PCC owns many units of
housing in Bridgeport. It is actively developing new affordable housing there. It
is not uncommon for chief executives of affordable housing developers – public
and private – to work closely with the municipalities and appear at press
conferences with public officials concerning affordable housing projects and
initiatives. This does not show the developers are part of municipal government.
It shows they have chief executives who are doing their jobs.
Gomes makes a secondary argument to the effect that, even if PCC has standing to bring
this action, it lacks probable cause. This, first, does not go to jurisdiction. The argument, in any
case, seems to be that as a matter of law PCC cannot be defamed because it is a public body.
This is merely a restatement of the above-discussed claim that the First Amendment bars PCC
from suing for defamation. To the extent Gomes’ claim may be that PCC lacks probable cause
on the merits – though that is not articulated – it should suffice to note the following.
Defamation is “that which tends to injure ‘reputation’ in the popular sense; to diminish the
esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse,
derogatory, or unpleasant feelings or opinions against him” DeVito v. Schwartz, 66 Conn. App.
11
228, 232 (2001) (quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984), p.773). Under
Connecticut law, “[slander] is actionable per se if it charges improper conduct or lack of skill or
integrity in one’s profession or business and is of such a nature that it is calculated to cause
injury to one in his profession or business.” Moriarty v. Lippe, 162 Conn. 371, 383 (1972).
Gomes publicly accused PCC of corruption and abuse of public trust – of interfering with
the electoral process. This was an accusation of improper conduct and lack of integrity. It
diminished PCC’s reputation. See Baldwin Aff. ¶¶ 5-12. Gomes should be required to state
what, if any, basis he had for his statements.
V. CONCLUSION
For all of the foregoing reasons, Defendant John Gomes’ Motion to Dismiss should be
denied.
THE PLAINTIFF,
HOUSING AUTHORITY OF THE CITY
OF BRIDGEPORT d/b/a PARK CITY
COMMUNITIES
By: /s/ David S. Hoopes
David S. Hoopes
Hoopes Morganthaler Rausch &
Scaramozza LLC
CityPlace II—185 Asylum Street
Hartford, CT 06103-3426
Telephone: (860) 275-6800
Juris No. 423839
Its Attorneys
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CERTIFICATION
I hereby certify that a copy of the foregoing was mailed, postage prepaid, or emailed, this
th
30 day of May 2024, to all counsel of record as follows:
William B. Bloss
Koskoff Koskoff & Bieder PC
350 Fairfield Avenue
Bridgeport, CT 06604
bbloss@koskoff.com
/s/ David S. Hoopes
David S. Hoopes
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EXHIBIT A
DOCKET NO.: FBT-CV-23-6128401-S : SUPERIOR COURT
HOUSING AUTHORITY OF THE CITY OF
BRIDGEPORT : JUDICIAL DISTRICT OF FAIRFIELD
V. : AT BRIDGEPORT
JOHN GOMES : MAY 30, 2024
AFFIDAVIT OF JILLIAN V. BALDWIN
STATE OF CONNECTICUT:
: ss. Bridgeport
COUNTY OF FAIRFIELD :
Personally appeared Jillian V. Baldwin, having been duly deposed, makes oath to the
truth of the following:
1. I am over the age of eighteen, believe in the obligation of an oath and am
competent to testify as to the matters stated herein.
2. I am Chief Executive Officer of the Plaintiff in the captioned matter, the Housing
Authority of the City of Bridgeport d/b/a Park City Communities (“PCC”). I have held that
position since June 2020.
3. I have been employed by public housing authorities for the last 26 years. I was
Executive Director of the Longmont (Colorado) Housing Authority, Deputy Executive Director
of the Gary (Indiana) Housing Authority and Director of Administration of the New Bern (North
Carolina) Housing Authority. I am a Member of the Board of the Public Housing Director’s
Association. I have participated in various training programs related to housing authority
management and affordable housing finance and development.
4. PCC is a housing authority that serves approximately 12,000 people. It is
independent of the City of Bridgeport.
5. Housing authorities were originally created in the 1930s to build and operate
public housing projects with federal funding. This model of developing government-assisted or
facilitated affordable housing was abandoned many decades ago. Today, affordable housing is
developed by both private developers and housing authorities playing by the same rules. Housing
authorities such as PCC rely on the same sources of financing as private affordable housing
developers. These include loans from banks, private non-bank lenders and public agencies such
as, in Connecticut, the state Department of Housing (“DOH”) and the Connecticut Housing
Finance Authority (“CHFA”). The reputation of a loan applicant is a factor in any lender’s loan
underwriting process.
6. A primary source of financing for many affordable housing projects is federal
Low Income Housing Tax Credits (“LIHTCs”). LIHTCs incentivize for-profit investors to make
equity investments in affordable housing programs, by providing federal tax credits to qualified
projects. To qualify for tax credits, a project must receive an allocation of tax credits and must be
built and operated in accordance with LIHTC regulations. CHFA is authorized by federal law to
award each year a limited amount of tax credits for projects in Connecticut. Each year, demand
for LIHTCs exceeds the supply. Housing authorities such as PCC - typically acting through
wholly owned subsidiaries, which partner with for-profit investors - compete equally with
private developers and other housing authorities for LIHTC awards. The reputation of any
LIHTC applicant is a factor in CHFA’s decision-making process. And, if an award is obtained,
the reputation of the sponsor-developer is important in procuring a LIHTC investor, especially
since the tax credits are dependent on the sponsor-developer complying strictly with LIHTC
regulations.
2
7. Housing authorities such as PCC often partner with private affordable housing
developers to co-develop affordable housing projects. Potential co-development partners
consider PCC’s reputation when deciding whether to enter a development partnership with it.
8. Housing authorities, to be successful, also must maintain business relationships
with many other parties such as contractors, design professionals and many others.
9. Developing affordable housing in the way described above is a vital part of PCC’s
mission. PCC also performs other functions, such as operating legacy public housing projects.
Those are gradually being replaced by affordable housing developed in the way described above.
10. To be successful, any affordable housing developer - including a housing
authority such as PCC - must be able to obtain financing and to develop and maintain strong
business relationships with many parties, including those noted above. For many years, PCC was
hampered in these efforts by reputational issues associated with, among other things, its long-
standing designation by HUD as a “troubled” housing authority. Over the last several years in
particular, PCC has worked hard to restore its reputation, with considerable success. In April
2023, HUD removed PCC from its list of “troubled” housing authorities.
11. Gomes was a candidate for Mayor of Bridgeport running against incumbent
Mayor Joseph Ganim in the Democratic Party primary election held on September 12, 2023. He
was featured in a broadcast report aired by Fox 61/WTIC on September 12, 2023, and in related
articles on its website. The primary topic of the broadcast and the articles was an illegal ballot
stuffing incident. The broadcast and articles also included false claims ascribed to Gomes that
PCC had conspired with the campaign of the incumbent Mayor Ganim to exclude his campaign
from its properties while permitting access by the Ganim campaign and its associated slate of
candidates. The articles include the following verbatim quotes from the broadcast:
3
Preview
DOCKET NO.: FBT-CV-23-6128401-S : SUPERIOR COURT HOUSING AUTHORITY OF THE CITY OF BRIDGEPORT : JUDICIAL DISTRICT OF FAIRFIELD V. : AT BRIDGEPORT JOHN GOMES : MAY 30, 2024 PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS The Plaintiff Housing Authority of the City of Bridgeport d/b/a Park City Communities (“PCC”) submits the following Memorandum of Law and annexed Affidavit of Jillian V. Baldwin in opposition to the Motion to Dismiss filed by the Defendant John Gomes (“Gomes”), See Dkt. Entry Nos. 103.00; 104.00. I. INTRODUCTION This is a bill of discovery filed by PCC, a housing authority. Defendant Gomes was a primary candidate for Mayor of Bridgeport. He publicly accused PCC of conspiring with the campaign of his opponent, incumbent Mayor Joseph Ganim, to deny his campaign access to PCC’s housing developments while allowing access to the Ganim campaign. The purpose of this petition is to obtain discovery from Gomes as to what, if any, basis he had for his accusation, which is false and defamatory. II. SUMMARY OF ARGUMENT Gomes’ argument is simply that PCC is a public body and that, under the First Amendment, all public bodies lack standing to sue for defamation. PCC unquestionably is public. But it is not governmental. It is well established in Connecticut that, once created, housing authorities are independent of government. All public entities are not governmental in nature. And only governmental entities – not all public entities – lack standing to sue for defamation. III. FACTS PCC is a housing authority that serves approximately 12,000 people. See Exhibit A, Affidavit of Jillian Baldwin, PCC’s CEO (“Baldwin’s Aff.”) ¶ 4. Conn. Gen. Stat. § 8-40 creates a housing authority in each municipality, to become active in each municipality upon resolution of its governing body. Under Conn. Gen. Stat. § 8-41, commissioners are appointed for, generally, five-year terms by either the governing body of the municipality (in the case of towns) or its chief executive officer (in the case of cities). Commissioners may only be removed for cause after an opportunity for hearing and notice. Conn. Gen. Stat. § 8-43. Housing authorities were originally created in the 1930s to build and operate public housing projects with federal funding under the United States Housing Act of 1937. Baldwin Aff. ¶ 5; Michelle Adams, Separate and Unequal: Housing Choice, Mobility, and Equalization in the Federally Subsidized Housing Program, 71 Tul. L. Rev. 413, 434-35 (1996) (“Adams”). This model of providing government-assisted or facilitated affordable housing was abandoned many decades ago. Baldwin Aff. ¶ 5; Adams at 440. Today, affordable housing is developed by both private developers and housing authorities playing by the same rules. Housing authorities such as PCC rely on the same sources of financing as private affordable housing developers. These include loans from banks, private non-bank lenders and public agencies such as, in Connecticut, the state Department of Housing (“DOH”) and the Connecticut Housing Finance Authority (“CHFA”). Baldwin Aff. ¶ 5. A primary source of financing for many affordable housing projects is federal Low Income Housing Tax Credits (“LIHTCs”). Baldwin Aff. ¶ 6. LIHTCs incentivize for-profit investors to make equity investments in affordable housing projects, by providing federal tax credits for qualified projects. Id. To qualify for tax credits, a project must receive an allocation 2 of tax credits and must be built and operated in accordance with LIHTC regulations. Id. CHFA is authorized by federal law to award each year a limited amount of tax credits for projects in Connecticut. Each year, demand for LIHTCs exceeds the supply. Id. Housing authorities such as PCC - typically acting through wholly owned subsidiaries, which partner with for-profit investors – compete equally with private developers and other housing authorities for LIHTC awards. Id. The reputation of any LIHTC applicant is a factor in CHFA’s decision-making process. Id; Connecticut Housing Finance Authority, Low Income Housing Tax Credit (“LIHTC”) Program Guideline, 2024 and 2025 § IV(A). And, if an award is obtained, the reputation of the sponsor-developer is important in procuring a LIHTC investor, especially since the tax credits are dependent on the sponsor-developer complying strictly with LIHTC regulations. Id. Housing authorities such as PCC often partner with private affordable housing developers to co-develop affordable housing projects. Id. ¶ 7. To be successful, they also must maintain business relationships with many other parties such as contractors, design professionals and many others. Id. ¶ 8. Developing affordable housing in the way described above is a vital part of PCC’s mission. Id. ¶ 9.1 To be successful, any affordable housing developer - including a housing authority such as PCC - must be able to obtain financing and to develop and maintain strong business relationships with many parties, including those noted above. Id. ¶ 10. For many years, PCC was hampered in these efforts by reputational issues associated with, among other things, its long-standing designation by HUD as a “troubled” housing authority. Id. Over the last several years in particular, PCC has worked hard to restore its 1 PCC also performs other functions, such as operating legacy public housing projects. Those are gradually being replaced by affordable housing developed in the way described above. Id. 3 reputation, with considerable success. Id. In April 2023, HUD removed PCC from its list “troubled” housing authorities. Id. In 2023, Gomes was a candidate for Mayor of Bridgeport – running against incumbent Mayor Joseph Ganim in the Democratic Party primary election held on September 12, 2023. He was featured in a broadcast report aired by Fox 61/WTIC on September 12, 2023, and in related articles on its website. Id. ¶ 10. The primary topic of the broadcast was an illegal ballot stuffing incident involving the campaign of incumbent Mayor Ganim. The broadcast and article also included false claims ascribed to Gomes that PCC had conspired with the Ganim campaign to exclude his campaign from its properties while permitting access by the Ganim campaign and its associated slate of candidates. Id. The article includes the following statements from the broadcast: The Gomes campaign claims Ganim conspired with property managers and used his authority as mayor to block building access to his challenger. “In some instances, those who were elected and on the slate with the other team, worked out with the managers of those facilities and purposedly did not allow us to have access whatsoever,” said Gomes. Id. Gomes’ accusation that the management of PCC conspired with the Ganim campaign, to abuse its control over public property and to skew the democratic process, was an accusation of corruption and lack of integrity. That was his obvious point – and why Fox61 considered it newsworthy. His accusation was wholly false and baseless. Id. ¶ 12. It has set back PCC’s efforts to restore its reputation. Id. IV. ARGUMENT 4 The Free Speech Clause of the First Amendment protects all criticism of government, even defamatory criticism. New York Times Co. v. Sullivan, 376. U.S. 254, 291 (1964). Gomes’ argument incorrectly assumes that the terms “government” and “public entity” are interchangeable. None of the decisions Gomes cites use the phrase “public entity” or the like in describing the kind of plaintiff that cannot sue for defamation. They use – exclusively – the terms “government,” “governmental” or “arm of government.” As discussed below, the case law that Gomes himself cites makes clear that public entities can be nongovernmental and, if they are, they can sue for defamation. Almost all of the cases cited by Gomes involve municipalities or school districts. There is no question such entities are governmental. The governmental nature of the entity was not at issue in any of these decisions. Such cases shed no light on whether or under what circumstances particular public entities should be regarded as non-governmental in nature such that they lack standing to sue for defamation. The one decision discussed by Gomes that does shed light on this issue shows why Gomes’ assumption that all public entities are governmental is wrong. That is Cox Enterprises v. Carroll City/County Hospital Authority, 247 Ga. 39 (1981). This is the only decision cited by Gomes that addresses the issue of when a public entity should be treated as governmental for purposes of the Free Speech Clause. Gomes appears to rely heavily on this decision. There, the court considered whether a city/county hospital authority created under Georgia law was governmental in nature. It considered and weighed numerous sometimes competing factors before concluding that, under Georgia law, a hospital authority should be treated as governmental in nature. It concluded that the authority was an instrument of government because it was “merely the way the government has chosen to do its business in this instance.” 247 Ga. at 45. 5 The public nature of Georgia hospital authorities is obvious and was not at issue in Cox. The Carroll City/County Hospital Authority was established pursuant to a Georgia statute that created such authorities in each county or municipality. See O.C.G.A. § 31-7-72. Under Gomes’ argument, the public nature of such authorities should settle the matter. But Cox makes clear that, at least where an entity is not clearly governmental, the determination of whether a public entity should be considered as governmental for purposes of the Free Speech Clause is highly fact specific and nuanced. The court must consider and weigh numerous competing factors to assess whether a public entity is governmental. The starting point here, of course, is what a housing authority is. As noted, housing authorities were originally created in the 1930s to build and operate public housing projects with federal money. Adams, supra, at 433. The United States Housing Act of 1937 required that funds appropriated under the Act be used only by “public housing authorities” to be established by states, counties or municipalities. See 42 U.S.C. § 1437(b) (public housing authority organization); 42 U.S.C. § 1437a(b)(6) (definition of “public housing agency”). In Connecticut this was accomplished by Conn. Gen. Stat. § 8-40, et seq., which created housing authorities within each municipality. Like all recipients of federal funds, housing authorities must follow certain federal regulations. Adams, supra, at 434 n. 79. But housing authorities were intended by Congress to be decentralized and autonomous. Id. The non-governmental nature of a housing authority under Connecticut law is well established. In Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988) the Court considered whether a housing authority (the same one at issue here, in fact) was an agent of the City of Bridgeport. After noting that “the city has no power to control the actions of [the housing authority]”, the Court held that “once created [a housing authority] becomes an autonomous 6 body, subject only to the limits of power imposed by law…[They] are not instruments of the government created for its own uses or subject to its direct control.” (internal citation and quotation marks omitted) (emphasis added). 280 Conn at 185-86. Our Supreme Court could not have more definitively stated that housing authorities are not part of government or arms of government 2. Gordon is dispositive. Georgia hospital authorities, by contrast, were found by the Cox court to be instruments of government – exactly what the Gordon court held Connecticut housing authorities are not. As aptly summarized in a later decision: “After careful analysis, the court in Cox Enterprises concluded that hospital authorities are instrumentalities of the state, i.e., they are the manner in which the state has determined to do ‘its business.’” Crosby v. Hospital Auth., 93 F.3d 1515, 1524 (1996). Although further analysis is not necessary given Gordon’s clear holding that housing authorities are not governmental, a review of the differences between Georgia hospital authorities and Connecticut housing authorities nonetheless reinforces why Connecticut housing authorities are non-governmental. While there are some common features, those are all features common to virtually all public entities and, in some cases, many private entities. For example, like Georgia hospital authorities and Connecticut housing authorities, most if not all public bodies are created pursuant to an enabling statute that states they are public bodies. Likewise, for example, all public bodies – and many private entities – are tax exempt, like Georgia hospital 2 Gordon relied in part on Rhode Island Supreme Court’s decision in Housing Authority v. Fetzik, 110 R.I. 26 (1972). There, the court held: A housing authority is more akin to the ordinary private corporation than to a municipal corporation. We hold, therefore, that a housing authority, such as the plaintiff, is a person within the meaning of the fourteenth amendment and therefore has standing to challenge the constitutionality of a state statute under the due process and equal protection clauses of that amendment. Whether a housing authority is a “person” within the meaning of the Fourteenth Amendment having standing to sue to challenge the constitutionality of a state statute is highly apposite to whether it has standing to sue for defamation. 7 authorities and Connecticut housing authorities. But, with respect to features that go to the heart of whether a public entity is part of government, there are critical differences. One fundamental indicium of whether a public entity is governmental is whether its enabling legislation says it is. The Cox court rightly placed significant weight on statutory language expressly stating that Georgia hospital authorities are created to exercise essential government functions. No such language appears in Conn. Gen. Stat. § 8-40 et seq. The Cox court also noted that the power to tax is an important attribute of government and is an important part of the reason why government is not permitted to sue its citizens for defamation – because government should not be able to use tax revenues collected from its citizens to silence criticism by its citizens. 247 Ga. 39 at 41 n. 2; 45. It was therefore important to the Cox court that, while Georgia hospital authorities have no direct power to tax, their enabling statute gives county or municipal government the power to levy a special tax to fund hospital authorities. Id. at 44; O.C.G. § 31-7-84. Connecticut housing authorities have no taxing power at all, direct or indirect. Another strong indication that Connecticut housing authorities are not part of government is that Gomes cannot seem to identify what level or branch of government he claims it is a part of. If they are instruments of government, Gomes should at least be able to say what level or branch of government they are an instrument of. Although at times he seems to claim PCC is part of the City of Bridgeport, he also associates it, variously, with the state or federal government. If PCC is an instrumentality of government, it would have to be an instrumentality of federal, state or local government. But all can be ruled out as a clear matter of law, as follows. PCC is not an instrumentality of the City of Bridgeport. As noted, it is well established that housing authorities are not agencies or instrumentalities of municipal government. Austin v. 8 Housing Authority of Hartford, 143 Conn. 338, 349 (1956) (“The housing authority is a distinct corporate entity. It is not an agency of the City of Hartford”) (citation to predecessor to Conn. Gen. Stat. 8-40 omitted); Gordon v. Bridgeport Housing Authority, supra at 185-6. Housing authorities are also not political subdivisions of the state – which is why they have no governmental immunity. Quinones v. New Britian Housing Authority, 1993 WL 329291, 1992 LEXIS (Conn. Super. Ct. 1992) (housing authorities not political subdivisions of state, and thus have no governmental immunity); Majette v. New London Housing Authority, 2005 LEXIS 1914 (Conn. Super. Ct. 2005) (accord). PCC is not an instrumentality of the State of Connecticut. Housing authorities are, obviously, not part of the executive, legislative or judicial branches of the state. They are also not found among the list of state “quasi-public agencies” as defined in Conn. Gen. Stat. § 1- 120(1)3. PCC is not an instrumentality of the United States. It is equally well established that housing authorities are not instrumentalities of the federal government. See Correlated Dev. Corp. v. United States, 566 F.2d 515, 519-22 (Ct. Cl. 1977) (HUD not liable on contracts executed by public housing agency); Perez v. United States, 444 F. Supp. 623, 626 (D.P.R. 1978), aff’d 594 F.2d 280 (1st Cir. 1979) (public housing agency not an agent of federal government, thereby insulating United States from vicarious tort liability); Harris v. Lynn, 411 F. 3 The enabling statute of each such “quasi-public agency,” unlike Conn. Gen. Stat. § 8-40, expressly states that the agency is an “instrumentality” of the state or a subsidiary of such an instrumentality. See Conn. Gen. Stat. § 32-35, (Connecticut Innovations, Inc.); § 10a-179 (Connecticut Health and Educational Facilities Authority); §10a-179a, (Connecticut Higher Education Supplemental Loan Authority); § 10a-201 (Connecticut Student Loan Foundation); § 8-244 (Connecticut Housing Finance Authority); § 8-244b (State Housing Authority (f/k/a Connecticut Housing Authority)); § 22a-261 (Materials Innovation and Recycling Authority); § 32-601 (Capital Region Development Authority); § 12-802 (Connecticut Lottery Corporation); § 15-120bb (Connecticut Airport Authority); § 38a-1081 (Connecticut Health Insurance Exchange (d/b/a Access Health CT)); § 16-245n (Connecticut Green Bank); § 15-31a (Connecticut Port Authority); § 8-169ii (Connecticut Municipal Redevelopment Authority); § 10-357a (State Education Resource Center); and § 31-49f (Paid Family and Medical Leave Insurance Authority). 9 Supp. 692, 693, 695 (E.D. Mo. 1976), aff’d, 555 F.2d 1357 (8th Cir. 1977), cert. denied, 434 U.S. 927 (1977) (federal government is neither equitable nor real owner of land owned by housing authority). Gomes does not address the question of what a housing authority is because he incorrectly assumes that it suffices that a housing authority is a public entity. Rather than address the nature of housing authorities under Connecticut law, he relies on a series of irrelevant factual claims based on documents produced by PCC and the deposition of its Executive Director, Jillian Baldwin. See Gomes’ Memorandum of Law at 1-3. Most show nothing more than PCC is public, which PCC has never disputed. Many are frivolous. These include the following: Gomes apparently claims that PCC is a board or commission of the City because an unknown employee of or vendor for the City – whose understanding of the nature of a housing authority evidently differed from that of the Connecticut Supreme Court – listed PCC as a City board or commission on the City’s website. Gomes apparently claims that PCC is a part of the City of Bridgeport because PCC elected to incorporate the City’s code of ethics by reference into its own separate and extensive code of ethics.4 Gomes apparently claims that PCC is part of the City of Bridgeport because housing authority employees are permitted to participate in the Connecticut Municipal Employee Retirement System. See Conn. Gen. Stat. § 7-425(l) (including “housing authority” included within definition of “municipality” for 4 Gomes gratuitously criticizes PCC’s CEO, Jillian Baldwin, for supposedly not being aware that PCC is “subject to” the City Code of Ethics, when PCC is not in fact “subject to” the City’s Code in the sense that was plainly meant – which was that PCC is part of or subordinate to City government. 10 purposes of Municipal Employee Retirement System). But in those sections of the General Statutes that actually concern the nature and powers of municipalities, the word “municipality” is defined in a way that excludes housing authorities. See Conn. Gen. Stat. 7-130a (re general powers of municipalities); 1-187 (re municipal characters and special acts). Gomes apparently claims that PCC is part of the City of Bridgeport because Ms. Baldwin (who has been with PCC for four years) appeared at press conferences with the Mayor of the City of Bridgeport three times. PCC owns many units of housing in Bridgeport. It is actively developing new affordable housing there. It is not uncommon for chief executives of affordable housing developers – public and private – to work closely with the municipalities and appear at press conferences with public officials concerning affordable housing projects and initiatives. This does not show the developers are part of municipal government. It shows they have chief executives who are doing their jobs. Gomes makes a secondary argument to the effect that, even if PCC has standing to bring this action, it lacks probable cause. This, first, does not go to jurisdiction. The argument, in any case, seems to be that as a matter of law PCC cannot be defamed because it is a public body. This is merely a restatement of the above-discussed claim that the First Amendment bars PCC from suing for defamation. To the extent Gomes’ claim may be that PCC lacks probable cause on the merits – though that is not articulated – it should suffice to note the following. Defamation is “that which tends to injure ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him” DeVito v. Schwartz, 66 Conn. App. 11 228, 232 (2001) (quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984), p.773). Under Connecticut law, “[slander] is actionable per se if it charges improper conduct or lack of skill or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business.” Moriarty v. Lippe, 162 Conn. 371, 383 (1972). Gomes publicly accused PCC of corruption and abuse of public trust – of interfering with the electoral process. This was an accusation of improper conduct and lack of integrity. It diminished PCC’s reputation. See Baldwin Aff. ¶¶ 5-12. Gomes should be required to state what, if any, basis he had for his statements. V. CONCLUSION For all of the foregoing reasons, Defendant John Gomes’ Motion to Dismiss should be denied. THE PLAINTIFF, HOUSING AUTHORITY OF THE CITY OF BRIDGEPORT d/b/a PARK CITY COMMUNITIES By: /s/ David S. Hoopes David S. Hoopes Hoopes Morganthaler Rausch & Scaramozza LLC CityPlace II—185 Asylum Street Hartford, CT 06103-3426 Telephone: (860) 275-6800 Juris No. 423839 Its Attorneys 12 CERTIFICATION I hereby certify that a copy of the foregoing was mailed, postage prepaid, or emailed, this th 30 day of May 2024, to all counsel of record as follows: William B. Bloss Koskoff Koskoff & Bieder PC 350 Fairfield Avenue Bridgeport, CT 06604 bbloss@koskoff.com /s/ David S. Hoopes David S. Hoopes 13 EXHIBIT A DOCKET NO.: FBT-CV-23-6128401-S : SUPERIOR COURT HOUSING AUTHORITY OF THE CITY OF BRIDGEPORT : JUDICIAL DISTRICT OF FAIRFIELD V. : AT BRIDGEPORT JOHN GOMES : MAY 30, 2024 AFFIDAVIT OF JILLIAN V. BALDWIN STATE OF CONNECTICUT: : ss. Bridgeport COUNTY OF FAIRFIELD : Personally appeared Jillian V. Baldwin, having been duly deposed, makes oath to the truth of the following: 1. I am over the age of eighteen, believe in the obligation of an oath and am competent to testify as to the matters stated herein. 2. I am Chief Executive Officer of the Plaintiff in the captioned matter, the Housing Authority of the City of Bridgeport d/b/a Park City Communities (“PCC”). I have held that position since June 2020. 3. I have been employed by public housing authorities for the last 26 years. I was Executive Director of the Longmont (Colorado) Housing Authority, Deputy Executive Director of the Gary (Indiana) Housing Authority and Director of Administration of the New Bern (North Carolina) Housing Authority. I am a Member of the Board of the Public Housing Director’s Association. I have participated in various training programs related to housing authority management and affordable housing finance and development. 4. PCC is a housing authority that serves approximately 12,000 people. It is independent of the City of Bridgeport. 5. Housing authorities were originally created in the 1930s to build and operate public housing projects with federal funding. This model of developing government-assisted or facilitated affordable housing was abandoned many decades ago. Today, affordable housing is developed by both private developers and housing authorities playing by the same rules. Housing authorities such as PCC rely on the same sources of financing as private affordable housing developers. These include loans from banks, private non-bank lenders and public agencies such as, in Connecticut, the state Department of Housing (“DOH”) and the Connecticut Housing Finance Authority (“CHFA”). The reputation of a loan applicant is a factor in any lender’s loan underwriting process. 6. A primary source of financing for many affordable housing projects is federal Low Income Housing Tax Credits (“LIHTCs”). LIHTCs incentivize for-profit investors to make equity investments in affordable housing programs, by providing federal tax credits to qualified projects. To qualify for tax credits, a project must receive an allocation of tax credits and must be built and operated in accordance with LIHTC regulations. CHFA is authorized by federal law to award each year a limited amount of tax credits for projects in Connecticut. Each year, demand for LIHTCs exceeds the supply. Housing authorities such as PCC - typically acting through wholly owned subsidiaries, which partner with for-profit investors - compete equally with private developers and other housing authorities for LIHTC awards. The reputation of any LIHTC applicant is a factor in CHFA’s decision-making process. And, if an award is obtained, the reputation of the sponsor-developer is important in procuring a LIHTC investor, especially since the tax credits are dependent on the sponsor-developer complying strictly with LIHTC regulations. 2 7. Housing authorities such as PCC often partner with private affordable housing developers to co-develop affordable housing projects. Potential co-development partners consider PCC’s reputation when deciding whether to enter a development partnership with it. 8. Housing authorities, to be successful, also must maintain business relationships with many other parties such as contractors, design professionals and many others. 9. Developing affordable housing in the way described above is a vital part of PCC’s mission. PCC also performs other functions, such as operating legacy public housing projects. Those are gradually being replaced by affordable housing developed in the way described above. 10. To be successful, any affordable housing developer - including a housing authority such as PCC - must be able to obtain financing and to develop and maintain strong business relationships with many parties, including those noted above. For many years, PCC was hampered in these efforts by reputational issues associated with, among other things, its long- standing designation by HUD as a “troubled” housing authority. Over the last several years in particular, PCC has worked hard to restore its reputation, with considerable success. In April 2023, HUD removed PCC from its list of “troubled” housing authorities. 11. Gomes was a candidate for Mayor of Bridgeport running against incumbent Mayor Joseph Ganim in the Democratic Party primary election held on September 12, 2023. He was featured in a broadcast report aired by Fox 61/WTIC on September 12, 2023, and in related articles on its website. The primary topic of the broadcast and the articles was an illegal ballot stuffing incident. The broadcast and articles also included false claims ascribed to Gomes that PCC had conspired with the campaign of the incumbent Mayor Ganim to exclude his campaign from its properties while permitting access by the Ganim campaign and its associated slate of candidates. The articles include the following verbatim quotes from the broadcast: 3