Opinion
No. 4000168
April 4, 2005
MEMORANDUM OF DECISION
This is an action seeking writs of mandamus, money damages and other relief arising out of the refusal of the defendant board of fire commissioners to promote the plaintiff, Robert Freeman, from the rank of captain to deputy chief and to promote the plaintiff, William J. Heffernan III, from the rank of firefighter to lieutenant, within the time period prescribed by a local ordinance. The defendants claim that because of a budgetary shortfall, they were excused from complying with the requirements of the ordinance.
On July 6, 2004, the plaintiffs, Freeman, Heffernan and the West Haven Professional Firefighters, Local 1198, AFL-CIO (union), filed a three-count complaint against the defendants, the First Fire Taxation District (district) and First Fire Taxation District of the Board of Fire Commissioners (board). In count one of the complaint, the plaintiffs allege that Freeman was the next eligible candidate on the list for promotion to the position of deputy chief. They claim that the defendants violated Freeman's right to be promoted because they failed to perform their duty of filling the position within ninety days of the retirement of the previous deputy chief, as required by law. In count two, the plaintiffs allege that Heffernan was the next eligible candidate on the list for promotion to the position of lieutenant. They claim that the defendants violated Heffernan's right to be promoted to the position of lieutenant because they failed to perform the duty of filling the deputy chief vacancy within ninety days, which would have had a domino effect of opening a lieutenant position. In count three, the plaintiffs allege that the defendants' failure to fill the deputy chief position directly violated the rights of the members of the union. The plaintiffs seek a writ of mandamus compelling the defendants to fill the deputy chief position and a writ of mandamus compelling the defendants to extend the expiration date of the lieutenant's examination promotional list until the other vacancies created by filling the deputy chief position are filled.
In their answer, the defendants admit that Freeman and Heffernan were the next eligible candidates on the respective promotional lists for the positions of deputy chief and lieutenant, respectively, and that the defendants have not appointed a deputy chief since the previous deputy chief retired. They deny, however, that they violated the plaintiffs' rights. In addition, the defendants allege, as special defenses, that: (1) the conduct on which the complaint is premised is within the board's discretion as the district's chief financial officer charged with oversight responsibility for the district's finances; (2) that the plaintiffs do not have a clear legal right to have the defendants perform the duties they seek to enforce; and (3) that Heffernan failed to exhaust his administrative remedies.
The case was tried to the court. Following the trial, the parties submitted briefs. The court finds the following facts. The district is a quasi-municipal corporation established pursuant to General Statutes (Rev. 1972) § 7-324 et seq. for the purpose of extinguishing fires within the city of West Haven. The district is governed by a three-person elected board of fire commissioners which has the general management and control of the fire department. The board is authorized to appoint a chief and lesser officers. The appointment and promotion of all members of the permanent staff of the fire department is made by the board from eligibility lists established after competitive examinations. Pursuant to Chapter IV § 1(d) of the home rule ordinance of the First Fire Taxation District of the city of West Haven (ordinance) vacancies in positions within the department must be filled within ninety days with the person who has attained the highest grade on the examination, if an eligibility list exists.
The court observes that in their brief, the defendants state that they "do not contest the plaintiffs' statement of facts as set forth in their post-trial brief."
Freeman is a captain in the fire department and has been employed by the district for twenty-nine years. At all times relevant hereto, he has been the only person on the eligibility list for the position of deputy chief. Heffernan is a firefighter in the department and has been so employed for thirteen years. Between 2002 and 2004, he was the highest ranking firefighter on the eligibility list for promotion to the position of lieutenant. That list expired on July 11, 2004.
The union is an employee organization as defined by the Municipal Employee Relations Act (MERA); General Statutes § 7-460 et seq; and is the exclusive bargaining agent for all uniformed and investigatory positions within the West Haven fire department, except the positions of chief and deputy chief. Freeman and Heffernan are both dues paying members in good standing with the union.
William Johnson has been chief of the West Haven fire department for twenty-three years. The chief answers directly to the board and is responsible for the day-to-day administrative, financial and operational functions of the fire department. Included in the chief's duties is assisting the board with the preparation of the proposed annual budget. Under the ordinance, the board submits a budget to the taxpayers of the district for their approval at an annual town meeting at which a tax is laid and the tax rate fixed. The town meeting, which the board is required to hold, must be held not less than thirty days prior to the beginning of the annual July 1 fiscal year. See General Statutes §§ 7-327(c), 7-380, 7-381.
In late 2002, John Patry, then deputy chief of operations of the fire department, informed Johnson that he was considering retiring from the department. Johnson encouraged Patry not to resign and to give the matter further consideration. In early December 2002, however, Patry decided to resign and informed Johnson and the board of his decision. On December 31, 2003, he submitted a letter of resignation, which was effective January 3, 2003. On his retirement, Patry was entitled to the payment of $63,538.99 in terminal leave pay, a combination of unpaid, accumulated sick time and vacation time.
Patry's retirement created a vacancy in the position of deputy chief of operations. As the only person on the eligibility list for deputy chief, Freeman normally would have been promoted to that position within ninety days. He was not.
Johnson and the board were surprised that Patry retired when he did, after only fourteen months in the position of deputy chief of operations. His retirement came in a fiscal year when the district was having financial difficulty. Johnson and the board were concerned that Patry's terminal leave pay and his pension payments, together with the salary of a promoted deputy chief, would aggravate the district's financial problem. Johnson recommended that the board not promote Freeman until the next fiscal year so that funds budgeted for the deputy chief's salary for the second half of fiscal year 2002-2003 could be transferred to the terminal leave and pension accounts to help cover Patry's terminal leave and pension payments.
The board followed Johnson's recommendations. It expected, however, that it would promote Freeman at the beginning of the new fiscal year, on July 2003. If Freeman had been promoted to deputy chief at that time, a competitive examination would have been held for the position of captain, the lieutenant first ranking on the eligibility list resulting from that examination would have been promoted to captain, and Heffernan would have been promoted to lieutenant no later than January 2004.
Pursuant to the collective bargaining agreement, if an eligibility list does not exist, the defendant is obligated to establish such a list within ninety days, and then has an additional ninety days to promote from that list. While the collective bargaining agreement expired on June 30, 2004, the board and the union have continued to follow it until another agreement is reached.
Early in 2003, the board and the union were engaged in negotiations for a new collective bargaining agreement. The existing collective bargaining agreement expired by its terms on June 30, 2003. In March 2003, during these negotiations, the union demanded that the position of deputy chief be included in the bargaining unit. The board has vehemently opposed such a demand and would seek to abolish the position of deputy chief if, by binding arbitration, the position were placed in the bargaining unit. If the union had not made such a demand, or had promptly withdrawn it, the board would have promoted Freeman and Heffernan.
But see note 2, supra.
The union, however, did not withdraw its demand prior to the adoption of the 2003-2004 budget. The board nonetheless anticipated that the issue would be resolved in its favor by negotiation or mediation during the first half of the new fiscal year. The 2003-2004 budget, which the Board proposed and the taxpayers adopted at the annual town meeting, appropriated monies for the position of deputy chief for only half of the fiscal year. The board planned to use these monies to pay Freeman when he was promoted after the first half of the new fiscal year, in January 2004, after the union had withdrawn its demand. However, the issue of whether the position of deputy chief should be included in the bargaining unit has never been withdrawn by the union or otherwise resolved. Neither Freeman nor Heffernan have been promoted to date.
When the board failed to promote Freeman to deputy chief, he contacted the union president and a member of executive board to discuss the filing of a grievance. Freeman was advised that the union would not file a grievance on his behalf because the position of deputy chief was not within the bargaining unit. Moreover, Freeman could not file a grievance on his own because, under the collective bargaining agreement, only the union may file a grievance. As a result of not being promoted to deputy chief, Freeman has sustained a loss in salary and paid vacation and sick time.
When he was not promoted to lieutenant, Heffernan also requested that the union file a grievance on his behalf. The union refused to do so because there was no vacancy in the rank of lieutenant. As a result of the board's failure to promote him to lieutenant by January 2004, Heffernan, as of the time of trial, has sustained a loss in salary. Freeman, Heffernan and the union have brought this action seeking writs of mandamus ordering their promotions, together with damages and other relief. Additional facts will be provided as necessary.
"The requirements for the issuance of a writ of mandamus are well settled. Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy . . . Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity . . .
"In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action . . ." (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004).
I
Preliminarily, the court addresses an issue raised by the defendants at trial. The defendants claim that the union lacks standing to seek the relief sought by Freeman and Heffernan. The union argues that it has standing to seek the relief sought by Heffernan. "Because [t]he issue of standing implicates this court's subject matter jurisdiction, we address it first.
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Roeque v. DeMilo Co., 85 Conn.App. 512, 519, 857 A.2d 976 (2004).
The basis of the union's claim that it has standing is contained in the third count of the complaint, which seeks a writ of mandamus on behalf of Heffernan and which alleges: "As part of its obligation of representing the interests of its members, the plaintiff [union] is entrusted to police the collective bargaining agreement and any other Ordinance, Rule, Regulation or Fire Department Policy to ensure that the rights of its members are not violated." The union's claim is therefore one of representational standing.
The Connecticut Supreme Court has adopted the federal test for representational standing that was articulated in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); see Connecticut Associated Builders Contractors v. Hartford, 251 Conn. 169, 185, 740 A.2d 813 (1999). "Under that test, [a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." (Internal quotation marks omitted.) Id.
However, the court need not determine whether the union has satisfied this test since the legislature has, by fiat, conferred standing on the union. The legislature may confer standing on a class of persons; such standing "exists by legislative fiat, not by judicial analysis of the particular facts of the case." Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). Pursuant to MERA, "[w]hen an employee organization has been designated in accordance with the provisions of sections 7-467 to 7-477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have the right to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership." General Statutes § 7-468(c). Since the union has been designated as the exclusive bargaining agent for the employees in the bargaining unit pursuant to MERA, it has standing to represent Heffernan. See Local 773 v. Bristol, 39 Conn.Sup. 1, 5, 463 A.2d 628 (1983). "As the exclusive bargaining representative of the plaintiff, the union had the right and obligation to act for the plaintiff and to represent his interests." Tedesco v. Stamford, 222 Conn. 233, 247, 610 A.2d 574 (1992).
II
The defendants also argue that the court lacks jurisdiction over the plaintiff's claim that the defendants improperly failed to promote Heffernan because Heffernan and the union failed to exhaust their administrative remedies.
"The failure to exhaust an available administrative remedy is . . . a proper ground for denying mandamus . . . [I]ssuance of the writ has been confined to situations where the aggrieved party has no adequate remedy either at law or in equity." (Citations omitted; internal quotation marks omitted.) Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985). "It is well settled . . . that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs' union . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction . . . The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective [bargaining] agreements . . ." (Citations omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996). Accordingly, "[e]mployees who wish to oppose a promotion decision usually must exhaust all administrative remedies before they can seek judicial review of the decision." 3 E. McQuillin Municipal Corporations (3d. Ed. Rev 2001.) § 12.131, p. 622 (2001).
The defendants observe that General Statutes § 7-474(g) provides that "[t]he conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists . . . shall not be subject to collective bargaining . . ." (Emphasis added.) Since Heffernan is not seeking an initial appointment but, rather, a promotion, his claim is subject to collective bargaining and the remedies established by MERA. Heffernan and the union have not exhausted those remedies. Therefore, unless they have established an exception to the exhaustion doctrine, the court lacks jurisdiction over the matter of the failure to promote Heffernan.
The defendants further observe that the word "initial" was added to the statute by amendment, Public Acts 1982, No. 82-212 § 1, subsequent to the decision in D'Agostino v. New Britain, 7 Conn.App. 105, 507 A.2d 1042, cert. denied, 200 Conn. 806, 512 A 2d 229 (1986). D'Agostino interpreted General Statutes (Rev. 1979) § 8-212 to provide that all promotional appointments were exempt from collective bargaining and the grievance procedures thereby imposed.
"When the legislature amends the language of a statute, it is presumed that the legislature intended to change the meaning of the statute . . . and to accomplish some purpose." (Citation omitted.) Simko v. Zoning Board of Appeals, 206 Conn. 374, 377, 538 A.2d 202 (1988). Thus, while prior to Public Act, 8-212, all appointments from lists established by merit examinations were excluded from collective bargaining, including promotions, since 1982 only initial appointments from such lists have been exempt. See Murchison v. Civil Service Commission, 234 Conn. 35, 660 A.2d 850 (1995).
"Despite the important public policy considerations underlying the exhaustion requirement, [the Supreme Court has] grudgingly carved several exceptions from the exhaustion doctrine . . . [The court has] recognized such exceptions, however, only infrequently and only for narrowly defined purposes . . . One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . ." (Citations omitted; internal quotation marks omitted.) CT Page 5895 Hunt v. Prior, supra, 236 Conn. 432. "[I]t is futile to seek [an administrative] remedy only when such action could not result in a favorable decision and invariably, would result in further judicial proceedings." (Internal quotation marks omitted.) Id., 433.
It clearly would have been futile for Heffernan and the union to have pursued a grievance. There has not been a vacancy in the position of lieutenant since deputy chief Patry's retirement. Thus, had Heffernan and the union pursued their remedies under the collective bargaining agreement, they would have been seeking to have Heffernan promoted to a vacancy that did not exist. This grievance could not have produced a result favorable to them and would invariably have resulted in an action such as this. Under the circumstances, Heffernan and the union are excused from exhausting their administrative remedies.
III
The court turns to the merits of the plaintiffs' claims for writs of mandamus.
A.
The court first addresses whether the plaintiffs had a clear legal right to have the board fill vacancies within the ninety-day time period prescribed by the West Haven home rule ordinance. The plaintiffs' claim of a clear legal right is based on Chapter IV § 1(d) of the ordinance, which provides that the board "shall fill any and all vacancies which arise within the department from the eligibility list provided for in subsection (c) hereof within ninety days from the date said vacancy occurs." Subsection "c" provides for competitive testing. The plaintiffs argue that pursuant to Chapter IV § 1(d), each plaintiff had a clear legal right to promotion prior to the expiration of his respective eligibility lists. The defendants do not address whether the plaintiffs had a clear legal right to promotion, but rather merge their discussion of this issue into their argument that the board had discretion to withhold Freeman's promotion for fiscal reasons.
"A local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances." Maciejewski v. West Hartford, 194 Conn. 139, 151, 480 A.2d 519 (1984). Chapter IV § 1(d) employs the word "shall." "In general, the word `shall' is mandatory, not directory . . . Use of the word `shall,' however, does not always indicate that a clause is mandatory . . . The determination must focus on whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the . . . provision is mandatory . . . If, however, the . . . provision is designed to secure order, system and dispatch . . . it is generally held to be directory, especially where the requirement is stated in affirmative term unaccompanied by negative words . . . Such a . . . provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply . . . Where the regulation contains no penalty for noncompliance, or where the language purports to establish procedure, it is deemed to be directory." (Internal quotation marks omitted.) Boris v. Garbo Lobster Co., 58 Conn.App. 29, 36, 750 A.2d 1152, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).
However, "[t]he object of the legislation with which we are concerned must be considered in solving the issues raised by this [case]." Resnick v. Civil Service Commission, 156 Conn. 28, 30, 238 A.2d 391 (1968). Chapter IV § 1 of the West Haven home rule ordinance is a civil service law. A "civil service law provides for the appointment to positions and offices in the governmental service according to merit and fitness to be ascertained by competitive examination . . . This mandate requires that original [and promotional] appointments to municipal offices be made as the result of an examination, the results of which show a person to be best qualified, and that competitive examinations be conducted so as to obtain people who manifest their qualifications for the job and thus advance the cause of civil service . . . One of the commonly accepted purposes and functions of civil service is that appointments be made from lists of properly examined and qualified personnel . . . The purpose of these laws is to ensure the appointment of personnel possessed of the qualifications which are necessary for a fit and intelligent discharge of duties pertaining to public office and to free public employees from the fear of political and personal prejudicial reprisal . . ." (Citations omitted; internal quotation marks omitted.) Resnick v. Civil Service Commission, supra, 156 Conn. 30-31.
Therefore, "[s]tatutory provisions regulating appointments under civil service acts are mandatory and must be complied with strictly . . . [S]ubstantial compliance is insufficient . . . The doctrine of substantial performance has no application to the performance of duty by those entrusted with the administration of the civil service law. It would open the door to abuses which the law was designed to suppress. The law provides for a complete system of procedure designed to secure appointment to public positions of those whose merit and fitness has been determined by examination, and to eliminate as far as practicable the element of partisanship and personal favoritism in making appointments . . . A civil service statute is mandatory as to every requirement . . ." (Citation omitted; internal quotation marks omitted.) Walter v. Jankura, 162 Conn. 482, 489-90, 294 A.2d 536 (1972) (holding that "[s]tatutory provisions for civil service examinations must be strictly complied with to support the validity of the action of a municipal board concerned with promotions under civil service." Id., 490). Accordingly, the court holds that the requirement of Chapter IV § 1 of the West Haven home rule ordinance that promotions be made within ninety days of a vacancy is mandatory.
If the time period within which to fill vacancies were not mandatory, the board could manipulate the persons on an eligibility list by delay. For example, if the board did not wish to promote the ranking persons on an eligibility list, it could delay promotions until the list expired. New testing would be required, resulting in a new eligibility list containing new persons and new rankings. Such a prospect subverts the purpose of civil service merit selection and visits obvious prejudice on the employees who would have been promoted had the statutory time period for making promotions been observed.
Since a vacancy was created in the position of deputy chief on January 3, 2003, and since Freeman was the sole candidate on the eligibility list for that position, he had a clear legal right to the promotion by April 2, 2003.
Heffernan's claim of legal entitlement is more circuitous but no less clear. In order to be promoted, he required a vacancy in the position of lieutenant. No such vacancy existed at the time of Patry's retirement. Freeman's elevation from captain to deputy chief would not necessarily have created an instant vacancy in the lieutenant's position. As the plaintiffs themselves admit, "Plaintiff Heffernan's claim of entitlement to the position of lieutenant is based on a `domino theory.'" Plaintiffs' Brief, p. 15. The vacancy in the position of captain created by Freeman's promotion had to be filled by a lieutenant. Only then would there be a vacancy available in the position of lieutenant to which Heffernan could have been promoted. Article IV § 1(d) of the ordinance gave the board ninety days to fill this vacancy from the existing eligibility list. This required the promotion of a lieutenant to captain by July 2, 2003. However, there was no existing eligibility list for captain in April 2003. Article XXX § 2 of the collective bargaining agreement provided that "[i]f no eligibility list exists for the appointment to the permanent staff, the Board of Fire Commissioners shall have an additional ninety (90) days to establish the list and make appointments." This gave the board until October 2, 2004, to promote a lieutenant to captain, thereby creating a vacancy in the office of lieutenant. The board would have had another ninety days to fill that vacancy. Thus, the latest this vacancy could have been filled under tine ordinance was January 2, 2004. At that time, the eligibility list for lieutenant on which Heffernan was the next ranking firefighter had not yet expired. Deputy commissioner Bruce Sweeney admitted in his testimony before the court that the board would then have been required to promote Heffernan to fill the lieutenant's vacancy. Therefore, Heffernan had a clear legal right to be promoted to lieutenant not later than January 2, 2004.
See also D'Agostino v. New Britain, supra, 7 Conn.App. 108.
The actual date is Thursday, January 1, 2004, a legal holiday. General Statues § 1-4. Therefore, the board had an additional day to fill the vacancy. Lamberti v. Stamford, 131 Conn. 396, 400-01, 40 A.2d 190 (1944).
B.
The court turns to principal question of law in the case, whether the defendants had discretion to delay the promotions the plaintiffs seek.
The plaintiffs contend that the board had no discretion as to whether to make the requested promotions and no discretion to exceed the ninety-day time period in the home rule ordinance. It is not clear whether the plaintiffs are positing that a board never has discretion, even for fiscal exigencies, or whether the plaintiffs contend that the facts here do not reflect that there was a fiscal problem, or whether the plaintiffs are advancing both arguments. The defendants maintain that the board did have discretion as to whether and when to make the promotions.
Generally, as stated in Walter v. Jankura, supra, 162 Conn. 482, the duty imposed by civil services laws is mandatory and must be strictly complied with. This affords the municipality no discretion in the duty imposed. However, the Supreme Court has indicated that although a public employee may have a clear legal right to the performance of a duty by his public employer pertaining to his employment, thereby satisfying the first part of the three-tier test for mandamus, in certain circumstances, arising from fiscal exigencies, the public employer may have discretion in the performance of that duty. Hennessey v. Bridgeport, 213 Conn. 656, 660 n. 4, 664, 569 A.2d 1122 (1990).
In Perretta v. New Britain, 185 Conn. 88, 440 A.2d 823 (1981), nonprobationary employees of the city of New Britain sought a writ of mandamus to reinstate them to positions from which they had been laid off by the mayor for lack of funds. The Supreme Court acknowledged that "[a]s a creature of the state, a city can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." (Internal quotation marks omitted) Id., 101-02. Nevertheless, "[i]n the absence of an express provision, the authority necessary for effective exercise of a granted municipal power will be conferred by implication . . . Cities with charters have the power to manage, regulate and control their finances; to protect the welfare of the city; and to make all lawful regulations and orders in furtherance of any granted powers." (Citations omitted.) Id., 102.
The court held that "[t]he authority of New Britain to lay off city employees for reasons of economy falls within its expressed and implied powers." Id. With respect to the city's implied power, the court stated: "When the city determines that its welfare and the proper management of its financial resources require reduced expenditures, it has discretion to husband those resources by laying off city employees whose performance it judges expendable. A city may dismiss employees in such circumstances even in the face of civil service regulations, charter provisions or statutes requiring just cause for dismissals . . . In the absence of any charter provision limiting the mayor's authority to lay off city employees, that authority will be implied as necessary to the execution of his public duties as New Britain's chief executive officer." (Citations omitted.) Id., 102-03
As for the city's express power to lay off employees for reasons of economy, the court stated that the New Britain city charter "clearly anticipates the possibility of layoffs for lack of work or lack of funds. To accept the plaintiff's argument that only an employee's direct appointing authority can order his layoff is to fragment municipal power and severely hamper its exercise in times of economic distress. We have previously recognized that this very charter, in its provisions for classified employees of school boards, entrusts to different municipal agencies the power of appointment and the power of removal . . . It is therefore clear that, regardless of where a city's charter locates appointment powers, the charter may expressly delegate the authority to lay off employees to any designated government agencies or officials, or may refer the issue to grievance procedures under a collective bargaining agreement. Where the charter has not done so, a city's mayor, as its chief executive officer, has the authority to order layoffs of city employees for the purpose of implementing a properly promulgated municipal budget that mandates fiscal stringency." Id., 103; see Hennessey v. Bridgeport, supra, 213 Conn. 664 (reiterating the holding in Perretta with respect to a municipality's implied power to lay off employees in times of fiscal crisis and stating that "[w]hen the city determines that its welfare and the proper management of its financial resources require reduced expenditures, it has discretion to husband those resources by laying off city employees whose performance it judges expendable."); Lombardi v. Bridgeport, 194 Conn. 601, 611-12, 483 A.2d 1092 (1984) (same).
In Perretta, Hennessey and Lombardi, employees were laid off by a mayor who was the chief executive of the municipal corporation. Here, promotions of employees were delayed by the board of fire commissioners of the First Fire Taxation District of the city of West Haven.
"The defendant fire district is a quasi-municipal corporation." Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 547, 427 A.2d 822 (1980); see Highgate Condominium Assn v. Watertown Fire District, 210 Conn. 6, 7-8, 553 A.2d 1126 (1989) (same); home rule ordinance of the city of West Haven Chapter I § 1; see also AvalonBay Communities v. Sewer Commission, supra, 270 Conn. 425 (sewer district is a quasi-municipal corporation); Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987) (tax district is a quasi-municipal corporation); General Statutes § 7-381 (defining fire taxation districts as municipalities for purposes of statute requiring uniform fiscal year). "[Q]uasi-municipal corporations are creatures of the state"; Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 547 n. 2; and "are governed by the law applicable to municipal corporations." Stroiney v. Crescent Lake Tax District, supra, 205 Conn. 294. Thus, a quasi-municipal corporation such as the district possesses the same implied powers which, the Supreme Court explained in Perretta, are possessed by municipal corporations. This includes the power to "lay off . . . employees for reasons of economy . . ." Perretta v. New Britain, supra, 185 Conn. 102.
Unlike most municipal corporations, the district is not governed by a single chief executive officer. Rather, Chapter II, § 1 of the Home Rule Ordinance of the First Fire Taxation District vests the governance of the district in "a Board of Fire Commissioners consisting of three electors . . ." In addition, Chapter II, § 1 provides that this board "shall have the general management and control of the fire department . . ." Thus, the executive authority of the district is reposed in the board, This provision of Chapter II, § 1 also confers express power on the board to defer promotions in times of fiscal crisis. See Perretta v. New Britain, supra, 185 Conn. 102-03. Moreover, Article XXXI of the collective bargaining agreement expressly provides that the board may not only "lay off, furlough, or otherwise relieve employees for lack of work or other legitimate reasons," but may "[t]ake any action necessary in emergency situations regardless of prior commitments in order to carry out the responsibility of the District to the Citizens of West Haven." This use of the word "any" is instructive.
The board, therefore, has both express and implied power to lay off employees for reasons of economy. It therefore is authorized to take less drastic action, not inconsistent with its governing charters and collective bargaining agreements, by deferring promotions in good faith where expenses will exceed budgeted revenues.
C.
The discretion reposed in the board under Perretta and its progeny to take action up to and including the laying off of employees may, of course, be exercised only "[w]hen the city determines that its welfare and the proper management of its financial resources require reduced expenditures . . ." Perretta v. New Britain, supra, 185 Conn. 102. Accordingly, the court turns to whether the defendants determined that welfare and proper management of the fire district's financial resources required delaying the promotions of Freeman and Heffernan. In the court's view, this involves a two-step analysis: (1) whether circumstances existed that reasonably lead the board to conclude that proper management of its financial resources required deferring the promotions, and (2) whether the board made such a determination in good faith, and not as a subterfuge for an improper purpose. 4 E. McQuillin, Municipal Corporations, (3d Ed. Rev. 2002) § 12.246, p 504-05 (2002); cf. Perretta v. New Britain, supra, 185 Conn. 91-92, 102-03. The burden of proving the first element is on the board, both because it is relying on an exception to the general rule that a governmental entity has no discretion in complying with civil service laws, which the defendants have pleaded as a defense; Sauerwein v. Bell, CT Page 5902 17 Conn.App. 697, 703 n. 3, 556 A.2d 613, cert. denied, 211 Conn. 804, 559 A.2d 1158 (1989); Lumbermens Mutual Casualty Co. v. Scully, 3 Conn.App. 240, 245 n. 5, 486 A.2d 1141 (1985); and because the defendants have "readier access to knowledge about the fact in question." Albert Mednel Son, Inc. v. Krogh, 4 Conn.App. 117, 124, 492 A.2d 536 (1985). The burden of proving the second element remains on the plaintiffs since "[i]n the absence of clear indication to the contrary, public officials are presumed to act according to governing law." Waterbury v. Washington, 260 Conn. 506, 571, 800 A.2d 1102 (2002); 4 E. McQuillin, Municipal Corporations, (3d Ed. Rev. 2002) § 12.246, p 504 (2002).
Upon his retirement, Patry was entitled to terminal leave of $63,539.99 and a pension of 77 percent of his $72,000 salary. While much was made at trial of the payout to Patry for terminal leave, the defendants did not show that the $187,316 line item in the budget for terminal leave was insufficient to pay Patry. Notably, in drafting the line item in the budget for terminal leave, the defendants had anticipated the retirement of other employees who did not retire, such as the chief.
The pension fund for the department is funded by current taxpayer revenues. The defendants did not anticipate Patry's retirement and paid his pension for the second half of the 2002-2003 fiscal year out of monies budgeted for his salary.
However, the real fiscal difficulty that existed was not caused by Patry's retirement but by the overall fiscal condition of the district. During the fiscal year that Patry retired, actual expenditures ($8,296,715) exceeded appropriations ($8,082,112) by $214,613.00. Worse, actual revenues collected for the district ($7,600,712) fell short of projected revenues ($8,082,112) by $481,400. The total deficit thereby produced was $696,003. Thus, circumstances existed that reasonably lead the board to conclude that public welfare and the proper management of its financial resources required deferring the promotions of Freeman and Heffernan.
In addition, the court finds that the plaintiffs have not proven that the board's action in deferring promotions was not in good faith or for subterfuge. Deferring promotions was a relatively modest but reasonable measure. Not only did a fiscal crisis exist, but the board could and did reasonably determine in good faith that its welfare and the proper management of its financial resources required deferring the promotions of Freeman as well as Heffernan.
However, this fiscal crisis ceased to exist at the beginning of the new fiscal year, July 1, 2003. The defendants refused to budget for a deputy chief of operations for the first half of the new fiscal year solely because the union had made a demand that the position be included in their bargaining unit. The defendants vehemently opposed such a demand and indicated that if the position was included in the bargaining unit, the board would seek to eliminate the position of deputy chief of operations. At the time of trial, however, the union had not dropped its demand. The chairman of the board admitted that the board has refused to promote Freeman since July 1, 2002, solely because of the union's demand.
The defendants have no discretion to disobey a civil service law simply because of a demand, even one they consider unreasonable, made by an employee union in collective bargaining negotiations. "Any violation of the law enacted for preserving [the civil service] system . . . is fatal because it weakens the system of competitive selection which is the basis of civil service legislation . . . Strict compliance is necessarily required to uphold the sanctity of the merit system . . . To excuse good faith violations of our civil service law would open the door to abuses which the law was designed to suppress." (Citations omitted; internal quotation marks omitted.) Cassella v. Civil Service Commission, 202 Conn. 28, 35, 519 A.2d 67 (1987). See also Walter v. Jankura, supra, 162 Conn. 482. Indeed, in this case, the collective bargaining agreement itself provides in Article XXI that "[e]xcept for the right to strike or withhold services . . . all other union activities are protected. Nothing shall abridge the right of any duly authorized person representative of the Union to present the view of the union to the citizens on the issues which affect the welfare of its members." Furthermore, the board's refusal to promote Freeman interjects an illegitimate consideration into the promotion process, in derogation of Article IV, § 1(a) of the Home Rule Ordinance and the purpose of civil service laws generally. See Resnick v. Civil Service Commission, supra, 156 Conn. 30-31.
The discretion to avoid mandatory civil service laws in times of financial crisis does not include the discretion to ignore such laws indefinitely. This would be contrary to the purposes for which such laws exist and an abuse of discretion. The discretion of municipal boards "must be exercised with skill, sound judgment and probity" and may be overruled "when it is found that the board has not acted fairly, with proper motives and upon valid reasons." First National Bank Trust Co. v. Zoning Board of Appeals, 126 Conn. 228, 237, 10 A.2d 691 (1940). Any other interpretation of the scheme of the Home Rule Ordinance would result in absurdity such as this case presents, in which the Board has employed a financial crisis long since passed to effectively freeze promotions indefinitely. "It is axiomatic that courts will not construe statutes, ordinances or regulations to achieve an absurd or irrational result." New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn.App. 585, 591, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Once the fiscal crisis no longer existed, the defendants were required to bring themselves back into compliance with provisions of the Home Rule Ordinance pertaining to promotions as closely as the circumstances permitted. This meant promptly promoting Freeman to deputy chief of operations, establishing an eligibility list for the position of captain within the time provided by the collective bargaining agreement promoting the lieutenant ranking first on the examination, and within ninety days of that promotion, promoting Heffernan to the position of lieutenant.
Accordingly, the court issues a writ of mandamus to the Board, directing that it immediately promote the plaintiff Robert Freeman to the rank of deputy chief of operations, with back pay to July 1, 2003, together with accrued paid vacation and sick time.
As observed supra, Heffernan's claim for a promotion depends on a "domino theory." "In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity . . .
"In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, supra, 270 Conn. 417.
With these considerations in mind, the court also issues a writ of mandamus to the board to convene a competitive examination of lieutenants for the rank of captain within ninety days, to thereafter promote a lieutenant to the rank of captain within ninety days, as provided in Article IV § 1(d) of the Home Rule Ordinance, and to promote the plaintiff William J. Heffernan, III to the rank of lieutenant, with back pay to January 2, 2004.
The writ of mandamus is not based on the collective bargaining agreement but on the Home Rule Ordinance. The collective bargaining agreement simply extends the time for promotions to allow for competitive testing where no eligibility list exists.
Also, although the eligibility list for lieutenant on which Heffernan was first ranking has expired, because Heffernan brought this action before it expired, he need not submit to another competitive examination as a condition of promotion. Bridgeport v. Connecticut Police Department Employees Local 1159, 32 Conn.App. 289, 294-95, 628 A.2d 1336, cert. denied, 227 Conn. 925, 632 A.2d 703 (1993).
Bruce L. Levin Judge of the Superior Court