BRIAN FITZGERALD ET AL.
v.
CITY OF BRIDGEPORT ET AL.
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 ...