Summary
rejecting due process claim based on lack of sufficiently defined property interest where plaintiffs challenged failure to promote from eligible list
Summary of this case from Crenshaw v. City of New HavenOpinion
(6746)
The plaintiffs, sergeants in the Bridgeport police department, sought, inter alia, a judgment declaring them to be eligible to take the promotional examination for the position of lieutenant. They claimed that in 1954 certain officers had been promoted to the position of sergeant when they were not residents of the city. They further claimed that, had it not been for those illegal promotions, the plaintiffs themselves would have been promoted sooner, thus giving them the requisite time in grade to take the lieutenants examination. The trial court rendered judgment in favor of the defendants, and the plaintiffs appealed to this court. Held that the plaintiffs, having failed to appeal from the 1984 determination by the defendant civil service commission that the allegedly non-resident officers did in fact reside in the city, could not use a declaratory judgment action to achieve a de novo determination of that issue, and their failure to act while the sergeants eligibility list was in effect rendered the trial court powerless to alter relative positions on that list; moreover, there was no merit to the plaintiffs' federal civil rights claim because an application for government employment does not generally give rise to a property interest in the position sought.
Argued December 13, 1988
Decision released April 4, 1989
Action for a judgment declaring that the plaintiffs' promotions to the rank of sergeant in the Bridgeport police department had occurred by operation of law on a certain date, and for other relief, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Licari, J.; judgment for the defendants, from which the plaintiffs appealed to this court. No error.
Anthony F. Slez, Jr., for the appellants (plaintiffs).
Thomas K. Jackson, for the appellees (named defendant et al.).
Frank J. Riccio, for the appellees (defendant Gary Kelly et al.).
This is the plaintiffs' appeal from a judgment in favor of the defendants in an action for a declaratory judgment and an injunction concerning their eligibility to take an examination for promotion to lieutenant in the Bridgeport police department.
The three claims of error raised by the plaintiffs are subsumed in the larger question of whether they may, at this time, question their eligibility for inclusion on the lieutenants list. We answer that question in the negative and find no error.
The plaintiffs claim that the court erred (1) in excluding all evidence as to the residence of the three police officer defendants, (2) by misapplying the law of two leading cases to the facts of the present case, and (3) in failing to find the right to compete for promotion, under the facts of this case, is a vested property right.
The following facts are dispositive of this appeal. The three plaintiffs are sergeants in the Bridgeport police department and the defendants are the personnel director of the city of Bridgeport, the civil service commission of the city of Bridgeport and three other sergeants (defendant sergeants) in the police department. On June 11, 1983, the civil service commission conducted an examination for promotion to the rank of sergeant. All of the plaintiffs and defendant sergeants took and passed the examination, the results of which were announced in the fall of 1983. Shortly thereafter, the plaintiff Honis challenged the residency of the defendants Frank Resta and Gary Kelly.
The residence of defendant Gerald DeStefano was not challenged prior to this action.
City residency is a requirement for promotional eligibility. The civil service commission requested the board of police commissioners to investigate Resta's and Kelly's residencies. A board of inquiry was held on May 8, 1984, and found that Resta and Kelly were bona fide residents of the city. These findings were transmitted to the civil service commission. On December 28, 1984, that commission certified and promulgated a list of police officers eligible for a promotion to sergeant. The names of the plaintiffs and of the defendant sergeants appeared on this list in the order of their earned ratings as determined by the promotional examination. The defendant sergeants' names appeared higher on the list than the plaintiffs' names.
The Bridgeport city charter provides that promotion from a list of this type is automatic and in order of earned ratings with no discretion allowed to the civil service commission. As each of their names rose to the top of the list, each of the plaintiffs and defendants was promoted to sergeant; the defendants were promoted on earlier dates than the plaintiffs. Pursuant to 9 of the Bridgeport City Charter, this promotional eligibility list expired on December 28, 1986. No appeal was brought to the courts when the defendant sergeants were found to be bona fide Bridgeport residents nor when they were promoted to sergeant.
The problem that is the genesis of the present action arose on March 24, 1987, with the announcement of an examination of eligible sergeants for promotion to the rank of lieutenant. A prerequisite to taking the lieutenants examination was one year of service (time in grade) as a sergeant. The plaintiffs are fifty-one days short of meeting this time in grade requirement.
In this action, the plaintiffs seek a declaratory judgment to the effect that by force of law they were promoted to sergeant effective on April 10, 1986, with time and grade from that date, rather than from the later dates on which they were actually promoted. The April 10, 1986 date would qualify the plaintiffs to take the lieutenants examination. Ancillary to the declaratory judgment, the plaintiffs seek an injunction blocking other promotions to the rank of lieutenant until they have taken that examination and damages for violation of their civil rights pursuant to 42 U.S.C. § 1983. The latter claim is directed solely against the defendants Cohen and the civil service commission.
The gravamen of the plaintiffs' complaint is that the defendant sergeants were promoted while they were nonresidents and hence their promotions were illegal. The plaintiffs argue that had it not been for these illegal promotions, they would have been promoted sooner, thereby having the requisite time in grade to take the lieutenants examination.
There is a fundamental flaw in the plaintiffs' case. They never appealed the December 28, 1984 certification of the defendant sergeants' eligibility for the sergeants examination. They now are attempting to use this declaratory judgment action as a substitute for that appeal. This is an inappropriate utilization of the declaratory judgment process. Tucker v. Board of Education, 190 Conn. 748, 754, 462 A.2d 385 (1983). They may not, at this date, employ the declaratory judgment statute to achieve a de novo determination of a matter upon which they failed to take a timely appeal. Ginsberg v. Post, 177 Conn. 610, 615, 418 A.2d 941 (1979). Hence, the plaintiffs are precluded from challenging the correctness of the civil service commission's 1984 certification of the sergeants eligibility list at this time. Tucker v. Board of Education, supra, 754-55.
Moreover, this action is an attempt to challenge a promotion list after its expiration. The effect of the relief sought by the plaintiffs is to change their position on the sergeants promotion list. The failure to act while an eligibility list is in force has been determined by our Supreme Court to render the trial court powerless to alter relative positions on a promotion list after the list's expiration date. State ex rel. Gaski v. Basile, 174 Conn. 36, 41, 381 A.2d 547 (1977); State ex rel Chernesky v. Civil Service Commission, 141 Conn. 465, 470-71, 106 A.2d 713 (1954).
The plaintiffs' civil rights claim under 42 U.S.C. § 1983 also lacks merit. In order to prevail, the plaintiffs would have to show a deprivation of a property right within the due process clause of the United States constitution. An application for government employment generally does not give rise to a property interest in the position sought. McFarlane v. Grasso, 696 F.2d 217, 221 (2d Cir. 1982); Gant v. Binder, 596 F. Sup. 757, 766 (D. Neb. 1984), aff'd, 766 F.2d 358 (8th Cir. 1985); nor, except when termination of employment is involved, do personnel decisions constitute a deprivation of a property interest. Rode v. Dellarciprete, 646 F. Sup. 876, 880 (M.D. Pa. 1986), aff'd in part, vacated and remanded in part, 845 F.2d 1195 (3rd Cir. 1988); Wargat v. Long, 590 F. Sup. 1213, 1215 (D. Conn. 1984); see also Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S.Ct. 42, 93 L.Ed.2d 5 (1986).