Shevlin v. Civil Service Commission of Bridgeport , 148 Conn. App. 344 ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
KEVIN SHEVLIN ET AL. v. CIVIL SERVICE
COMMISSION OF THE CITY OF
BRIDGEPORT ET AL.
(AC 34987)
Lavine, Robinson and Sheldon, Js.*
Argued November 12, 2013—officially released February 25, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Bellis, J. [motion to cite]; Radcliffe, J.
[judgment].)
Henry F. Murray, for the appellants (defendant Scott
Borris et al.).
Thomas W. Bucci, for the appellees (plaintiffs).
Opinion
LAVINE, J. This administrative appeal requires us to
construe the Bridgeport City Charter (charter) and the
rules (rules) of the Bridgeport Civil Service Commission
(commission) to identify the date on which eligibility
(eligibility date) to take fire captain promotion examina-
tion number 2319 (examination 2319) should have been
determined. To determine the eligibility date, we must
first decide whether the trial court properly found that a
certain firefighter was not laid off when he was demoted
from the captain to the lieutenant class. We conclude
that the court properly found that the firefighter was
not laid off and, therefore, we affirm the judgment of
the trial court.
The defendants1 appeal, following a trial to the court,
which rendered judgment in favor of the plaintiffs.2 On
appeal, the defendants claim that the court improperly
determined the eligibility date for examination 2319 by
misconstruing and misapplying the terms of the charter.
We disagree.
The plaintiffs commenced this action on March 30,
2012, seeking a judicial determination of the eligibility
date for examination 2319. They alleged, in part, that
they were long-standing members of the Bridgeport Fire
Department (department) and that they were lieuten-
ants qualified for promotion to the rank of captain as
of August 1, 2011. They further alleged that the commis-
sion improperly set August 21, 2011, as the eligibility
date. More specifically, the plaintiffs alleged that the
city, through its personnel director, David J. Dunn,
failed to conduct examination 2319 within 120 days of
a vacancy in the captain classification and extended
the eligibility date beyond 120 days of the vacancy. As
a consequence, Dunn permitted sixteen lieutenants to
take examination 2319, although they did not satisfy
the three year time-in-grade requirement as of 120 days
from the vacancy in the captain classification.3 The
plaintiffs sought a temporary injunction barring the
commission and Dunn from conducting a captain exam-
ination pending the court’s determination of the merits
of their complaint.
Subsequent to the commencement of the action, the
court, Bellis, J., granted a motion to add indispensable
parties. See footnote 1 of this opinion. Thereafter, the
parties stipulated to certain facts and tried the case to
the court, Radcliffe, J., and submitted posttrial briefs.
On July 16, 2012, Judge Radcliffe issued a memorandum
of decision, rendering judgment in favor of the plaintiffs.
The court ordered the commission and Dunn to utilize
August 1, 2011, as the eligibility date and that only those
candidates who were qualified to sit for the captain
examination as of August 1, 2011, were eligible for pro-
motion to the rank of captain on the basis of the results
of the examination conducted prior to trial.
The court found that, when a vacancy occurred in
the captain class in April, 2011, and there was no promo-
tion list, Dunn determined that a captain examination
was necessary, and he set August 21, 2011, as the eligi-
bility date. The plaintiffs disagreed with the eligibility
date that Dunn had set and appealed to the commission.
At a February 28, 2012 special meeting, the commission
heard arguments from Dunn, the city attorney, and the
attorney representing the plaintiffs. The commission
debated the provisions of the charter and rules and
voted unanimously to set August 1, 2011, as the eligibil-
ity date. The court found that, in doing so, the commis-
sion disregarded Dunn’s recommendation that April 23,
2011, was the date from which the eligibility date should
be calculated.
The court also found that, at the commission’s regu-
larly scheduled meeting held on March 13, 2012, Com-
missioner Willie C. McBride, Jr., moved to reconsider
the commission’s February 28, 2011 decision as to the
eligibility date. The commission retired to executive
session. When it returned to the public meeting, the
commission voted to reconsider its prior decision, and
voted to set August 21, 2011, as the eligibility date for
examination 2319.
The court found that, although the controversy
alleged in the complaint centered on the action taken by
the commission on March 13, 2012, the dispute stemmed
from an incident that had occurred on March 1, 2007,
when Lieutenant John Macnicholl was involved in an
altercation with his superior. Macnicholl was charged
with violating department policies and was dismissed
from employment on July 3, 2007. Prior to being dis-
missed, however, Macnicholl took a captain examina-
tion.4 On the basis of his performance on that
examination, Macnicholl ranked third on the resulting
promotion list.
The court also found that Macnicholl appealed the
termination of his employment to the State Board of
Mediation and Arbitration (board). The board unani-
mously rejected the city’s claim that Macnicholl’s dis-
missal was for just cause and ordered the city to make
him whole. The board’s February 11, 2009 decision
noted that Macnicholl ranked third on the promotion list
for captain at the time of his employment termination.
When Macnicholl was reinstated, promotion list 2214
was in effect and was due to expire on January 20, 2010.5
In addition, the court found that Chief Brian Rooney
conducted a performance review of Macnicholl after
he was reinstated as a lieutenant. Despite the board’s
unanimous finding that Mcnicholl had no prior disci-
plinary history and that his personnel file contained
commendations, Rooney rated Macnicholl’s perfor-
mance as unsatisfactory and found that he was not fit
to serve as a captain in the department. On May 26,
2009, five days after Rooney completed his evaluation
of Macnicholl, Captain Robert McLeod was promoted
to the rank of provisional assistant chief, thereby creat-
ing a vacancy in the captain class. On June 9, 2009,
pursuant to Rooney’s evaluation of Macnicholl, city per-
sonnel director, Ralph Jacobs, declined to promote
Macnicholl to the captain class. Macnicholl appealed
Jacobs’ decision to the commission on July 13, 2009.
On September 1, 2009, while Machnicoll’s appeal to the
commission was pending, Lieutenant Paul Cocca, who
ranked twenty-fifth on promotion list 2214, was pro-
moted to the captain class. The commission sustained
Macnicholl’s appeal on March 18, 2010, and, thereafter,
Macnicholl was appointed to the captain class. The
court found that the department budget and structure,
however, allowed for only eighteen positions in the
captain class. Because there were no vacancies in the
captain class at the time, Cocca was demoted from
captain to lieutenant.
On March 19, 2010, Rooney wrote to Dunn, stating:
‘‘I am requesting you to send . . . Cocca a letter
informing him of his recall rights to the position of
Captain within the next two . . . years when a vacancy
exists.’’ In a March 22, 2010 letter to Cocca, Dunn wrote
‘‘Layoff’’ in the reference line and referred to section
210 of the charter and Rule XIII of the rules. Dunn’s
letter to Cocca further stated in part that ‘‘[y]ou will
retain recall rights until the next available Captain’s
position until March 21, 2012.’’6 Soon thereafter, on April
2, 2011, Captain Luis Rivera retired from the depart-
ment, and on April 9, 2011, Cocca again was promoted
to the captain class. The court found that at the time
Cocca was reappointed to the captain class, promotion
list 2214 had expired on January 20, 2010.
The court found that on April 23, 2011, Captain Rich-
ard Thode was promoted to the assistant chief class,
which created a vacancy in the captain class. Because
promotion list 2214 had expired, Dunn prepared to con-
duct a captain examination and determined that an
individual had to have been a lieutenant in the depart-
ment for at least three years as of August 21, 2011, to
be eligible to take examination 2319.7 Dunn calculated
the eligibility date pursuant to the ‘‘Walker Rule,’’8 by
adding 120 days to the date Thode was promoted to
assistant chief, i.e., April 23, 2011, as the date on which
the vacancy occurred.
In addition, the court found that the plaintiffs chal-
lenged Dunn’s determination of the eligibility date by
way of an appeal to the commission. The commission
heard the appeal at a special meeting held on February
28, 2012, where the plaintiffs claimed that Cocca’s
demotion to the lieutenant class in March, 2010, was
not a layoff under the charter and rules and that Cocca
should not have been placed on a reemployment list.
The plaintiffs maintained that 120 days from April 2,
2011, the date Rivera retired, was the date to use to
determine the eligibility date and asked the commission
to set August 1, 2011, as the eligibility date. The court
found that the commission unanimously agreed with
the plaintiffs that the correct eligibility date was August
1, 2011. Two weeks later, however, at its regular March
13, 2012 meeting, Commissioner McBride asked the
commission to reconsider its February 28, 2010 decision
regarding the eligibility date. After the commission met
in executive session, it returned to the public meeting,
agreed to reconsider its prior decision, and adopted the
date of August 21, 2011, as the eligibility date. The
plaintiffs thereafter filed the present action.
In adjudicating count one of the complaint, which
alleged that the commission improperly established
August 21, 2011, as the eligibility date, the court relied
on several sections of the charter and rules that were
placed into evidence. In framing the issue, the court
found that the plaintiffs had not alleged that Cocca had
failed to perform his duties as a captain in a satisfactory
fashion between September 1, 2009, and March 21, 2010.
The question, therefore, was whether Dunn properly
had placed Cocca’s name on a reemployment list in
March, 2010. The court concluded that the answer
turned on whether Cocca had been laid off pursuant
to § 210 (a) of the charter.9 See Bridgeport Charter, c.
17, § 210 (a).
The court found that at the time Cocca was demoted
in March, 2010, the position of captain to which he
had been appointed in September, 2009, had not been
discontinued due to lack of work or lack of funds.
The number of positions in the captain class had not
changed. Moreover, the court found that the rules do
not include demotion in the definition of layoff. It also
found that the right to be placed on a reemployment
list pursuant to Rule XIII (2) applies only in cases of
layoff, reemployment, transfer or vacation. The court
further found that the term transfer did not apply to
Cocca’s demotion as he was at all times relevant a
member of the department. The court also found that
Cocca was demoted due to Macnicholl’s successful
appeal from Jacob’s decision not to appoint him to
the captain class. The court therefore concluded that
Cocca’s demotion was not a layoff and that his name
should not have been placed on a reemployment list.
The court also found that promotion list 2214 expired
in January, 2010, that a vacancy occurred in the captain
class when Rivera retired, and that the commission
properly concluded on February 28, 2012, that the eligi-
bility date for examination 2319 was August 1, 2011.10
In conclusion, the court stated that the eligibility date
for the captain promotion examination 2319 is August
1, 2011, and that an applicant must possess the qualifica-
tions to sit for the examination on that date. The court
ordered the commission and Dunn to use August 1,
2011, as the eligibility date and that only those candi-
dates who possessed the qualifications to sit for exami-
nation 2319 as of August 1, 2011, were eligible for
promotion to the captain class on the basis of the results
of an examination conducted prior to trial. The court
rendered judgment in favor of the plaintiffs and the
defendants appealed.
On appeal, the defendants claim that the court’s fac-
tual findings are clearly erroneous and that its interpre-
tation of the charter and the rules is improper. The
parties submitted stipulations of fact to the court, and
there is no disagreement as to the reasons for, times
of, and names of persons involved. We must determine
then whether the court properly determined, pursuant
to the charter and rules, that Cocca was not laid off in
March, 2010, when he was demoted from captain to
lieutenant. We conclude, as a matter of law, that Cocca
was not laid off and, therefore, that his name was
improperly placed on a reemployment list. As a conse-
quence, Dunn improperly calculated the eligibility date
as August 21, 2011.
The applicable standard of review is well known.
‘‘[T]he scope of our appellate review depends upon the
proper characterization of the rulings made by the trial
court. To the extent that the trial court has made find-
ings of fact, our review is limited to deciding whether
such findings were clearly erroneous. When, however,
the trial court draws conclusions of law, our review is
plenary and we must decide whether its conclusions
are legally and logically correct and find support in the
facts that appear in the record. . . .
‘‘As with any issue of statutory construction, the inter-
pretation of a charter or municipal ordinance presents
a question of law, over which our review is plenary.
. . . We turn, therefore, to our usual tools of statutory
construction. In determining whether the city’s method-
ology violates the statutory scheme of the charter, we
seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of [the]
case . . . .’’ (Citations omitted; internal quotation
marks omitted.) Kelly v. New Haven, 275 Conn. 580,
607-608, 881 A.2d 978 (2005). ‘‘In construing the civil
service provisions of the charter, we are always mindful
of the importance of maintaining the integrity of [the
city’s civil service] system.’’ (Internal quotation marks
omitted.) Id., 608.
‘‘The civil service law provides for promotion in gov-
ernmental employment according to merit and fitness
ascertained by competitive examination. . . . The pri-
mary purpose of these laws is to guarantee that the
meritorious secure jobs and to free public employees
from the fear of personal and political reprisal. . . .
These examinations not only protect the employees
but also benefit the general public in that they tend to
eradicate corruption as well as ensure that the persons
with the necessary qualifications to discharge intelli-
gently their duties pertaining to public office will do
so. . . .
‘‘It cannot be overemphasized that proper competi-
tive examinations are the cornerstone upon which an
effective civil service system is built. Any violation of
the law enacted for preserving this system, therefore,
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 . . . good faith of the
parties will not validate illegal appointments, nor will
continued employment in an invalidly obtained posi-
tion. . . . 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 Ser-
vice Commission, 202 Conn. 28, 34–35, 519 A.2d 67(1987).
On the basis of our construction of the relevant provi-
sions of the rules and the charter, we conclude that a
layoff occurs if a firefighter is separated from employ-
ment when a position is discontinued due to either lack
of work or lack of funds. Rule I provides in relevant
part: ‘‘The several terms hereinafter mentioned shall be
construed as follows: ‘position’ shall mean any office
or employment either occupied or vacant, calling for
the performance of certain duties and the exercise of
certain responsibility by one individual either on a full-
time or part-time basis; ‘class’ shall mean a group of
positions established under these rules sufficiently simi-
lar in respect to their duties and responsibilities . . .
‘transfer’ shall mean the change of any employee with
permanent status from a position in one department to
a position in the same class in another department;
‘promotion’ shall mean a change of an employee with
permanent status from a position in one class to a
position in another class having a more remunerative
salary range; ‘demotion’ shall mean a change of an
employee with permanent status from a position in one
class to a position in another class having a less remu-
nerative salary range; ‘termination’ shall mean the sepa-
ration from a position in the classified service of an
employee who has been employed under either a provi-
sional appointment, a temporary appointment or an
emergency appointment; ‘lay-off’ shall mean the sepa-
ration from the service of an employee having proba-
tionary or permanent status where the position has
been discontinued because of either lack of work or
lack of funds.’’ (Emphasis added.) Bridgeport Rules of
the Civil Service Commission, Rule I.
Section 210 (a) of the charter provides in relevant
part: ‘‘When any employee in the classified service, who
has been performing his duties in a satisfactory manner
as shown by the records of the department . . . in
which he has been employed, shall be laid off because
of lack of work or lack of funds, or has been on author-
ized leave of absence and is ready to report for duty
when a position is open . . . the personnel director
shall, on order of the commission, cause the name of
such employee to be placed on the re-employment list
for the appropriate class, for re-employment within two
years thereafter when vacancies in such class shall
occur. . . .’’11 (Emphasis added.)
On appeal, the defendants claim that the calculation
of the eligibility date for examination 2319 should begin
on April 23, 2011, the date that Thode was promoted,
not April 2, 2011, the date that Rivera retired. They
argue that under the charter, the city is not required to
schedule a competitive test when a vacancy in a position
occurs if there is either an active employment list for
the class that is based on a promotion examination or
there are individuals on an active reemployment list for
that class. See Bridgeport Charter, c. 17, § 211 (b).12 An
employment list for a class lasts for two years from
the date the first promotion is made from the list. See
Bridgeport Charter, c. 17, § 211 (a). An employee’s right
to be recalled to the position previously held by the
employee lasts for two years from the date the person
was placed on the list. Bridgeport Charter, c. 17, § 210.
In this case, the promotion list 2214 for captain expired
on January 20, 2010.
The defendants contend, however, that Cocca was
placed on the reemployment list for the captain class
following his layoff from the rank of captain on March
21, 2010. Dunn informed Cocca, at that time, that he
had recall rights to the captain class until March 21,
2012, or the next available position within the class.
The defendants contend that the next available position
in the captain class occurred when Rivera retired and
Cocca was promoted from the reemployment list on
April 9, 2011. From the defendants’ perspective,
because Cocca was not promoted from the promotion
list, there was no vacancy on the promotion list until
Thode was promoted. The fallacy in the defendants’
position is that Cocca was not laid off, and he was not
properly placed on the reemployment list. Although the
defendants argue that there was no work for Cocca in
the captain class when Macnicholl was promoted to
that class, the department command and leadership
structure provided for only eighteen positions in the
captain class. The defendants’ position is contrary to
the definitions set forth in Rule I of the rules and § 210
(a) of the charter. In their brief on appeal no less, the
defendants acknowledge that Cocca’s transfer from the
captain class back to the lieutenant class was a demo-
tion within the meaning of the rules.
Section 210 (a) of the charter provides in relevant
part: ‘‘When any employee in the classified service, who
has been performing his duties in a satisfactory manner
. . . shall be laid off because of lack of work or lack
of funds . . . the personnel director shall, on order of
the commission, cause the name of such employee to
be placed on the re-employment list for the appropriate
class, for re-employment within two years . . . .’’13 The
record discloses that when Macnicholl was promoted to
the captain class, the department structure and budget
allowed for eighteen captain positions. There were no
vacancies in the captain class. As the defendants them-
selves point out, Cocca was demoted to the lieutenant
class in March, 2010.
The factual circumstances here do not constitute a
layoff. The rules define layoff as ‘‘the separation from
the service of an employee . . . where the position has
been discontinued because of either lack of work or
lack of funds.’’ The evidence supports the trial court’s
findings that Cocca’s demotion was due to Macnicholl’s
promotion, the position was not eliminated, and Cocca
was not separated from service in the department.
There was no vacancy in the captain class because the
position was not eliminated due to lack of work or lack
of funds. There were eighteen positions in the captain
class when Cocca was promoted in September, 2009,
and eighteen positions at that level when he was
demoted in March, 2010. Because Cocca was not laid
off, his name should not have been put on the reem-
ployment list.
Promotion list 2214 expired in January 20, 2012; Rive-
ra’s retirement thus created a vacancy at the captain
class and there was no active promotion list. The date
of Rivera’s retirement, therefore, is the date from which
Dunn should have calculated the eligibility date. We
therefore conclude that the vacancy on promotion list
2214 occurred when Rivera retired on April 2, 2011, and
that the court properly determined that the eligibility
date for examination 2319 is August 1, 2011. We, there-
fore, affirm the judgment of the trial court in all
respects.14
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendants on appeal are Scott Boris, Andrew Ellis, Peter Morotto,
Robert Novak, David Purcell, and Ronald Rolfe, who are fire lieutenants
employed by the City of Bridgeport (city).
The action was commenced against two defendants, the Civil Service
Commission of the City of Bridgeport and David J. Dunn, acting personnel
director for the city. On April 15, 2012, eleven lieutenants in the Bridgeport
Fire Department moved to intervene in the action, claiming that they were
indispensable parties. Those lieutenants are: Lee Williamson, Scott Boris,
Timothy Bottone, Mark Cody, Matthew Deysenroth, Lawrence Donnelly,
Andrew Ellis, Andrew Fierlit, Peter Morotto, and Robert Novak. Darren
Penix, David Purcell, Michael Raffolo, Ronald Rolfe, Giovanni Sanzo, and
Paul Cocca also were made defendants, as their eligibility to take the cap-
tain’s examination was date dependent, as well.
Bridgeport Fire Fighters Local 834 of the International Association of Fire
Fighters filed a motion to intervene on June 4, 2012; the motion was granted.
2
The plaintiffs are twenty-one members of the Bridgeport Fire Department
who had attained the rank of lieutenant and were qualified to take the
captain’s examination on August 1, 2011. They are Kevin Shevlin, David
Simon, Shane L. Porter, Peter Mosley, Francis Falanga, Kenneth Domshine,
Everal Wallen, Kevin Higgins, Albert Diaz, Michael J. Filakovsky, Armando
Cora, John McMahon, Carlos Reyes, Lee Taylor, James Elward, Ron
LaFlamme, Ray Lopez, Glen Christie, Mike Meehan, Alsee McCray, and
Dave Acanfora.
3
In their brief on appeal, the defendant members of the department repre-
sent that they established ‘‘time-in-grade eligibility as of August 10, 2011,’’
and that forty-seven lieutenants participated in examination 2319. They
also represented that they ranked first, second, sixth, eighth, eleventh, and
sixteenth on examination 2319.
4
The captain examination that Macnicholl took is not the examination at
issue in this appeal.
5
Pursuant to § 211 (a) of the charter, the life of a promotion list is two
years.
6
In the first paragraph of his letter to Cocca, Dunn stated: ‘‘Please be
advised that effective Sunday, March 21, 2010 at 8:00 a.m. you were laid off
as Captain and reinstated as a Fire Lieutenant with the Bridgeport Fire
Department. Your layoff is pursuant to Section 210 of the City Charter and
Rule XIII of the Civil Service Rules and Regulations. You will retain recall
rights until the next available Captain’s position until March 21, 2012.’’
7
The three year eligibility requirement was not an issue at trial nor is it
on appeal.
8
See Walker v. Jankura, 162 Conn. 482, 294 A.2d 536 (1972).
9
Cocca’s promotion to captain on April 9, 2011, has never been challenged
by anyone, and is not an issue in this appeal.
10
The court concluded that, because it found that August 1, 2011, is the
eligibility date, it was not necessary to consider the plaintiffs’ claim that
the commission acted unlawfully on March 13, 2012, when it established
August 21, 2011, as the eligibility date. The plaintiffs have not raised this
issue on appeal.
11
The authorized leave of absence language is not relevant to this appeal.
12
Bridgeport Charter, c. 17, § 211 (b) provides: ‘‘The personnel director
may, from time to time, hold promotion tests for any or all positions in the
competitive division of the classified service which are allocated to class
which have been or shall be established to be at the promotion level by the
civil service commission. When a position in a promotion class shall become
vacant, and no appropriate re-employment list or employment list exists,
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.’’
13
There is no evidence in the record that the commission ordered Dunn
to place Cocca’s name on the reemployment list.
14
The defendants also claim that the city consistently has applied the
charter and rules in a manner identical to its treatment of Cocca whenever
employees are laid off. That issue was not addressed by the trial court, and
therefore is not properly before this court. See Willow Springs Condomin-
ium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 33, 717
A.2d 77 (1998).