Fitzgerald v. City of Bridgeport

          Argued October 10, 2018

         Procedural History

         Action for a temporary injunction to prevent, inter alia, the defendants from making appointments to the position of police captain based on the results of a police captain examination, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant Manuel Cotto filed a counterclaim; thereafter, the court, Kamp, J., granted the plaintiff's motion to dismiss the counterclaim; subsequently, the matter was tried to the court, Hon. Michael Hartmere, judge trial referee; judgment for the plaintiffs, from which the defendant Manuel Cotto appealed to this court. Affirmed.

          Barbara M. Schellenberg, with whom was Richard L. Albrecht, for the appellant (defendant Manuel Cotto).

          Thomas W. Bucci, for the appellees (plaintiffs).

          John P. Bohannon, Jr., for the appellees (named defendant et al.).

          Alvord, Prescott and Flynn, Js.

          OPINION

          ALVORD, J.

         The defendant Manuel Cotto^[1] appeals from the judgment of the trial court dismissing his counterclaim and in favor of the plaintiffs.^[2] The court struck Cotto's name from the eligibility list for promotion to police captain after concluding that Cotto had not met the eligibility requirements and should not have been allowed to take the captain examination. On appeal, Cotto claims that the court improperly (1) dismissed his counterclaim for lack of subject matter jurisdiction on the basis that he had failed to exhaust his administrative remedies, and (2) determined that a twenty-second lieutenant position was not established as required pursuant to § 206 (d) of the charter of the city of Bridgeport. He claims in the alternative that even if the trial court properly determined that the twenty-second lieutenant position was not established as required, the court's conclusion that he was ineligible to take the captain examination constituted an improper sanction of an illegal appointment. We affirm the judgment of the court.

         The following facts, either found by the court or stipulated to by the parties, ^[3] and procedural history are relevant to this appeal. The defendant city of Bridgeport (city) is a municipal corporation and has as its governing document the charter of the city of Bridgeport (charter). Section 206 (a) (3) and (4) of the charter set forth the powers and duties of the defendant Civil Service Commission (commission), including "mak[ing] investigations, either on petition of a citizen or on its own motion, concerning the enforcement and effect of this chapter, requir[ing] observance of its provisions and the rules and regulation made thereunder," and "hearing] and determin[ing] complaints or appeals respecting the administrative work of the personnel department, appeals upon the allocations of positions or concerning promotions, the rejection of an applicant for admission to an examination and such other matters as may be referred to the commission by the personnel director." The personnel director for the city, defendant David J. Dunn, is responsible for formulating and holding competitive tests to determine the qualifications of persons seeking employment or promotion with the city.^[4]

         Section 211 of the city charter governs eligibility for promotion tests. Subsection (a) of §211 provides in relevant part that a promotion test shall be open to those "who have held a position for a year or more in a class or rank previously declared by the commission to involve the performance of duties which tend to fit the incumbent for the performance of duty in the class or rank for which the promotion test is held. ... A person who has served less than one year in a lower grade shall not be eligible for a promotion test." Section 211 (b) of the charter provides in relevant part that "[w]hen a position in a promotion class shall become vacant . . . the personnel director shall, within one hundred and twenty days of the date of the creation of the vacancy, hold a promotion test for such class."

         Joseph L. Gaudett, Jr., became the chief of the city's police department (department) in October, 2008.^[5] At the time of Gaudett's appointment, there were twenty-one lieutenant positions within the department. A nationally recognized police think tank, the Police Executive Research Forum (PERF), recommended that the city increase the number of lieutenant positions to twenty-three. In January, 2010, Gaudett wrote to Dunn to request that the number of lieutenants in the table of organization be increased from twenty-one to twenty-two. The city's chief administrative officer, Andrew Nunn, approved Gaudett's request. Gaudett appeared on February 9, 2010, before the commission, which voted to approve Gaudett's request. A "civil service position request form," requested the creation of and funding for a twenty-second lieutenant position, and was signed by Mayor Bill Finch, Nunn, Gaudett, and Dunn.

         Section 206 (d) of the charter provides that "[w]hen-ever the appointing authority of any department desires to establish a new permanent position in the classified service, the personnel director shall make or cause to be made an investigation of the need of such position and report his findings to the commission. If upon consideration of the facts the commission determines that the work of the department cannot be properly and effectively carried on without the position, it shall classify and allocate the new position to the proper class after the position has been established by the city council. If the commission determines that the position is not necessary and that the work of the department can be properly and effectively carried on without the position, it shall promptly transmit such determination to the city council. Such determination by the commission shall be final unless the city council, within two months of the date of such disapproving action by the commission, shall by its duly enacted resolution approve the establishment of such position. In such event the final action of the city council shall be promptly transmitted to the commission and the commission shall allocate the position or positions therein approved to its proper class in the classification plan. All classifications and allocations made pursuant to this subsection shall be based on the same procedure and formula called for in subsections (a) and (b) of this Section."

         The commission did not submit its action authorizing the creation of the twenty-second position to the city council for approval. Nevertheless, Sergeant Richard Azzarito was promoted to the rank of lieutenant, as the twenty-second lieutenant, in February, 2010, and remains a lieutenant. That is, beginning on March 18, 2010, there were twenty-two members of the department holding the rank of lieutenant, although there were only twenty-one lieutenant positions in the city budget.^[6] The city used the reallocation of funds from a vacant emergency medical technician supervisor position to fund the twenty-second lieutenant position in 2010. On November 16, 2010, Christine Burns' employment as a lieutenant was terminated.^[7] After her termination, there were twenty-one members of the department holding the rank of lieutenant until November 24, 2012, on which date lieutenant Matthew Cuminotto retired. After Cuminotto's retirement, there were twenty members of the department holding the rank of lieutenant. Since November 16, 2010, the department has never had more than twenty-one members holding the rank of lieutenant.

         In November, 2013, Dunn administered a promotional examination for the class of lieutenant. Cotto, a well educated, second-generation city police officer who had served as a sergeant since March, 2008, scored first on the examination and was promoted to lieutenant on February 10, 2014.

         On May 4, 2015, the commission announced that it would conduct a promotional examination for the position of captain. The announcement provided that the examination was "open to current members of the Bridgeport Police Department, who have occupied with tenure, a position of Police Lieutenant for not less than one year, prior to April 22, 2012." The captain examination was scheduled for October 21, 2015.

         As previously discussed, if a position in a promotion class becomes vacant, the personnel director is required, pursuant to § 211 (b) of the charter, to hold a promotion test within 120 days of the date of vacancy in that class if there is no appropriate reemployment or employment list. Dunn did not hold an examination within 120 days of the date of vacancy in the captain class. As a result, Dunn was required, pursuant to a collective bargaining agreement between the city and the police union, to reconstruct the examination eligibility list to ensure that only those persons who satisfied the eligibility requirements on the date the test was required to be administered were permitted to take the examination.

         The commission selected April 22, 2012, as the date by which candidates for the captain examination were required to have "occup[ied] with tenure, a position of Police Lieutenant for not less than one year." Dunn, considering the date that Burns' employment was terminated on November 16, 2010, calculated Cotto's time in grade as a lieutenant from the date on which Cotto would have been appointed lieutenant to fill the vacancy in the position held by Burns. Underlying Dunn's calculation of Cotto's seniority was his determination that the department had an authorized strength of twenty- two lieutenant positions, as no vacancy in the twenty-first lieutenant position occurred until Cuminotto retired on November 24, 2012. Dunn found that Cotto possessed tenure in the rank of lieutenant from March 16, 2011, which was 120 days following November 16, 2010, the date on which Burns' employment was terminated. Thus, Dunn determined that Cotto was eligible to take the captain examination because he had occupied a position of lieutenant for not less than one year as of April 22, 2012. Dunn announced his decision to that effect on September 23, 2015. The next day, the plaintiffs appealed Dunn's decision to the commission, which denied the appeal on October 13, 2015. The captain examination was held on October 21, 2015, and Cotto scored seventh.

         The plaintiffs commenced the present action alleging, inter alia, that Cotto lacked the necessary qualifications to sit for the captain examination. They alleged that because the city council had not approved an increase in the number of lieutenant positions from twenty-one to twenty-two, Dunn had improperly calculated Cotto's seniority on the basis of the vacancy occurring in the twenty-second lieutenant position created by the termination of Burns on November 16, 2010. Had Dunn properly calculated Cotto's seniority from the date of vacancy in the twenty-first position, Cotto would not have been eligible to sit for the examination. The plaintiffs sought temporary and permanent injunction and other relief.

         On April 11, 2016, the city, the commission, and Dunn collectively filed an answer. That same day, Cotto individually filed an answer and counterclaim. The plaintiffs filed a motion to dismiss Cotto's counterclaim, which was granted on July 1, 2016. This action was tried to the court on September 14, 2016, and the parties filed posttrial briefs thereafter. On January 31, 2017, the court issued a memorandum of decision, in which it concluded that Cotto did not meet the eligibility requirements for the captain examination and, thus, should not have been permitted to take the examination. The court, accordingly, ordered Cotto's name stricken from the promotion list.

         The court first analyzed whether the twenty-second lieutenant position had been created in conformity with the law, such that a vacancy in that position could serve as the basis for calculating Cotto's time in grade as a lieutenant. The court found that neither the commission nor Dunn had conducted an investigation of the need for such a position, as required by § 206 (d) of the charter.^[8] Moreover, the court found that the city council had never established the twenty-second position and that the commission lacked authority to approve Gaudett's request to increase the number of lieutenant positions from twenty-one to twenty-two. Thus, the twenty-second lieutenant position was not properly established, and Dunn's position that the department had an authorized strength of twenty-two lieutenant positions was incorrect. That incorrect determination led Dunn to calculate Cotto's time in grade of lieutenant from the date Burns' employment was terminated on November 16, 2010. After that date, the department was at its authorized strength of twenty-one lieutenants. Thus, the court found that no authorized lieutenant position became available until Cuminotto retired on November 24, 2012, the date from which Cotto's time in grade should have been calculated. Because Cotto had occupied the position of lieutenant for less than one year as of April 22, 2012, the court concluded that he was ineligible to sit for the captain examination and ordered his name struck from the eligibility list. Additional facts and procedural history will be set forth as necessary.

         I

         The defendants first claim that the trial court improperly dismissed Cotto's counterclaim on the basis of a failure to exhaust his administrative remedies. We disagree.

         The following additional facts and procedural history are relevant to this claim. In Cotto's counterclaim, he alleged that April 22, 2012, the date by which candidates for the captain's examination were required to have "occup[ied] with tenure, a position of Police Lieutenant for not less than one year," was incorrectly determined. He maintained that in 2001, the city council had raised the authorized number of captain's positions from nine to thirteen. Cotto claimed that although several captain vacancies had occurred between 2001 and 2009, the chief of police failed to serve notice on the personnel director within thirty days of each vacancy as to whether he desired to fill the vacancies. Accordingly, three captain positions were alleged by Cotto to have been abolished, returning the authorized number of captain positions to nine.^[9] Cotto claims that the commission and the chief of police nevertheless continued to appoint captains, one of which was James Baraja, in excess of the nine authorized positions. Baraja again was promoted, to deputy chief, on December 22, 2011. The commission considered that date as the date of the vacancy in the captain's position and identified it as such in the May 4, 2015 revised announcement that it would conduct a captain examination. According to Cotto, the Baraja captain vacancy "was a phantom vacancy" created by an unauthorized captain appointment, and the first authorized vacancy in a captain position did not occur until Captain Viadero retired on June 28, 2014. Cotto alleged that he had "over a year seniority as a lieutenant measured from the Cuminotto vacancy of November 24, 2012, plus 120 days, to the retirement of Captain Viadero, plus 120 days."

         In the event the court were to render judgment for the plaintiffs on their complaint, Cotto requested that the court then void the current promotion list and the promotions made therefrom and order the personnel director to convene a new promotional examination for the rank of captain tied to the proper vacancy dates.

         On April 12, 2016, the plaintiffs filed a motion to dismiss Cotto's counterclaim on the basis that the court lacked subject matter jurisdiction over it. Specifically, they argued that Cotto failed to appeal to the commission from the decision to use the date on which Baraja was promoted to deputy chief, rather than the date Viadero retired, to assess the eligibility of the candidates for promotion to captain. Cotto's failure to appeal from that decision, according to the plaintiffs, required that his counterclaim be dismissed for failure to exhaust his administrative remedies. Cotto filed a memorandum in opposition to the plaintiffs' motion to dismiss, in which he argued that the exhaustion requirement was inapplicable because he had received a favorable ruling from Dunn that he had sufficient time in grade to take the captain's examination. Because he was determined to be eligible to take the examination, Cotto claimed that he had no reason to appeal to the commission. In their reply brief, the plaintiffs argued: "When the plaintiffs filed their appeal with the civil service commission raising Cotto's eligibility, he became fully aware that his eligibility would be jeopardized if he did not challenge the April 22, 2012, date, since he would not have the requisite one year tenure as of that date if the plaintiffs succeed in their claim. Nevertheless, he remained silent, and accepted the . . . commission's determination, exposing him to disqualification based on his eligibility being measured from his filling a nonexistent twenty-second lieutenant's position."

         After considering the motion on the papers, the court issued an order granting the plaintiffs' motion to dismiss Cotto's counterclaim. It reasoned: "While Cotto's argument that he had no reason to appeal a decision in his favor is logical, the court is not aware of any Connecticut case law that supports the proposition that a favorable decision renders the exhaustion requirement not applicable. Our Supreme Court has defined exceptions to the exhaustion requirement narrowly, and the ...