Opinion
No. CV07 4013592-S
November 1, 2007
MEMORANDUM OF DECISION
The plaintiff, Thomas Hunt, has filed this action for quo warranto to remove the defendant, Christopher Edson, from the public office of Chief of the Police Department of the Borough of Naugatuck (the "Borough") pursuant to Connecticut General Statutes § 52-491.
General Statutes Sec. 52-491 provides: "When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law."
The matter was heard before the court on July 20, 2007, and July 25, 2007, and both parties submitted post-trial memoranda on September 7, 2007. Based on the credible testimony presented during the trial and full exhibits submitted, the court makes the following findings.
I BACKGROUND
The Borough is a consolidated municipality which operates under a charter granted by the General Assembly. In 1953, the General Assembly enacted Special Act No. 321 (the "Act"). Article VIII of the Act provided for the creation of the Board of Police Commissioners for the Borough (the "Board"). The Board consists of six commissioners, namely, the Mayor of the Borough and five electors appointed by the Mayor to staggered terms (the "Commissioners"). Pursuant to the Act, the governance of the Borough's Police Department (the "Department") is vested in the Board. Section 3 of Article VII of the Act provides that, among other duties, the Board "shall administer, maintain and control the department of police protection." The Act has been incorporated into the Borough's municipal code. (Plaintiff's Exhibit 3.)
Early in 2007, the Borough was notified by its Chief of Police that he planned to retire. Acting on the notification, the Borough began a search for a qualified replacement.
The Board utilized the services of the Connecticut Chiefs of Police Association (the "Association") to assist with the search. The Association preliminarily screened and ranked candidates and provided additional technical assistance. The Director of Human Resources for the Borough acted as liaison between the Board and the Association.
Applications were received from forty-seven candidates, including the plaintiff. The applications were reviewed and scored by the Association and forwarded to the Board. The Association provided the Board with a list of candidates who were classified as "highly recommended" or "recommended" for personal interviews. The defendant, then a Captain with the Milford Police Department, was classified by the Association as "highly recommended." The plaintiff was not classified by the Association as "highly recommended" or "recommended."
The Commissioners interviewed eight candidates and later selected three of the eight for second interviews. The defendant was chosen as one of the three "finalists" to be granted second interviews, the plaintiff was not. One of the three finalists dropped out before being interviewed and the Commissioners interviewed the two remaining candidates.
On or about May 20, 2007, the Commissioners selected the defendant to fill the position. On or about June 5, 2007, the Board of Mayor and Burgesses of the Borough approved a written employment agreement with the defendant and the defendant was sworn in as Chief of Police on June 12, 2007.
The plaintiff, who is currently the Deputy Chief of the Department, brought the present action by complaint in the nature of quo warranto dated June 13, 2007, alleging that the defendant is not eligible to be appointed Chief under the Rules and Regulations promulgated by the Board (the "Regulations") and accordingly should be removed from office.
The plaintiff's claim is twofold. In count one, the plaintiff claims that the authority of the Commissioners to fill a vacancy in the position of Chief is restricted by the current Regulations to the appointment of the incumbent Deputy Chief. The second count of the plaintiff's amended complaint claims that a provision in the Regulations that "The Chief's position shall be open to the rank of Lieutenant and above with at least three (3) years in rank of Lieutenant" limits the appointment to the position of Chief to persons having three years service as a lieutenant in the Department. Since the defendant is neither the Deputy Chief nor a lieutenant with three years service with the Department, the plaintiff argues that the defendant is ineligible to hold the office of Chief of Police and should be ousted. The plaintiff's claim rests on his argument that the provision in the Regulations relied on by the Board in selecting the new Chief was not validly adopted and, therefore, the former provision remains in effect.
The defendant argues that the Board validly amended the Regulations at the Board's April 15, 2003 meeting and that the former provision claimed by the plaintiff is no longer in effect.
II STANDING
The plaintiff testified under oath that he is a resident and taxpayer in the Borough. This contention was undisputed. "A taxpayer qualifies for standing because as such he is interested in having the duties annexed to the several public offices recognized by the city charter performed by persons legally elected or appointed thereto whether or not another person claims the office." Carleton v. Civil Service Commission, 10 Conn.App. 209, 216, 522 A.2d 825 (1987).
In Carleton, supra, 10 Conn.App. 216, the court also ruled that the plaintiff, as an individual who was among those eligible for the position in question, was "[o] ne entitled to claim the office . . . [and therefore] has the requisite interest in the office giving him standing to seek such a writ."
The court finds that the plaintiff is a proper party to institute this quo warranto action and has standing to test the defendant's right to hold office de jure.
III STANDARD OF REVIEW
"A complaint in the nature of a quo warranto may be brought [w] hen any person usurps the exercise of any office . . . [and] the Superior Court may proceed . . . to punish such person . . . for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law . . . A quo warranto proceeding under the common law lies only to test the defendant's right to hold office de jure . . . It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute." (Citation omitted; internal quotation marks omitted.) Demarest v. Fire Dept., 76 Conn.App. 24, 28-29, 817 A.2d 1285 (2003).
"A successful action in quo warranto ousts the wrongful office holder and declares the position vacant." Carleton, supra, 10 Conn.App. 215.
"In order for a governmental position to constitute a public office falling under the quo warranto statute, two conditions must exist: (1) it must have its source in a sovereign authority speaking through the constitution or legislation; and (2) its incumbent, by virtue of his incumbency, must be invested with some portion of the sovereign power which he is to exercise for the benefit of the public." Carleton, supra, 10 Conn.App. 212. The office of Chief of Police is enumerated specifically in the Act as the "titular head of the department" which is charged with having general control over the public safety of the Borough. Accordingly, the court finds that the position of chief is a public office which may be the subject of a quo warranto proceeding.
IV DISCUSSION
The issue before the court is the validity of the appointment of the Chief of Police for the Borough. Resolution of the issue requires a determination of the applicable rules and regulations governing the procedures and necessary qualifications for the position of Chief in effect at the time of the defendant's appointment. The plaintiff asserts that Rule 38 of the Regulations, which the Board followed in hiring the defendant, was not validly adopted by the Board. Therefore, Rule 26 of the Regulations would remain in effect and that Rule, by its terms, excludes the hiring of the defendant. The defendant argues that the Board validly adopted Rule 38 at the Board's April 15, 2003 meeting and that Rule 38 supercedes Rule 26. Section 2 of Rule 26 provides as follows:
"Applications for promotion to any rank within the Police Department will only be accepted from active members of the Naugatuck Police Force at the time of application, providing those applicants meet all other requirements set forth herein."
Section 3 of Rule 26 provides as follows:
"Applications for promotion for the various ranks within the department shall have the following requirements:
D. For promotion to the rank of Chief, at the time of application for promotion at least ten (10) years of service in the Department and shall hold the rank of Deputy Chief at the time of application."
Rule 38, which the defendant argues was validly adopted by the Board and supercedes Rule 26, is entitled "Promotions Selection to open positions." The pertinent portion of Rule 38 provides as follows:
Positions not covered by the Bargaining Unit Contract (example: Chief and Deputy Chief).
(a) These positions will be filled in such a manner as determined by the Board of Police Commissioners.
(1) The Board of Police Commissioners will recruit candidates that have demonstrated that they have the Background, Qualifications, Education, and Leadership Experience required for an executive level position within a police organization.
(b) The "Hiring Promotions" subcommittee will be an "Executive Search Committee" for the purpose of identifying a qualified candidate for the vacancy
(c) The Board of Police Commissioners may, at their discretion, solicit assistance from:
(1) Command officers of other Local, State and Federal Agencies.
(2) Professional Organizations such as "International Association of Chiefs of Police" or "Connecticut Chiefs of Police Association."
(3) Professional recruiting organizations.
(d) The Board of Police Commissioners may conduct an internal and external search for candidates concurrently.
The description at trial of the Board's ongoing efforts to revise its Regulations demonstrates the difficulty that municipalities face when relying fully or partially on citizen volunteers to perform important governmental functions. One of the witnesses called by the plaintiff, former Commissioner Curtis Bosco, described the efforts to revise the Regulations as "a ridiculously ongoing process" that stretched over a period of ten or perhaps fourteen years.
Despite the difficulty encountered by the Borough, it should be noted that the process for the adoption, amendment, documentation and dissemination of the Regulations described at trial was inexcusably haphazard and, apparently, the customary means of ensuring the accuracy and accessibility of official records as important as the Regulations were not observed by any Borough official. The result of this failure to follow appropriate procedures is illustrated by the exhibits offered by the parties.
The plaintiff offered as evidence in support of his claims, a copy of a document entitled "Rules and Regulations Governing the Police Department of the Borough of Naugatuck" that bears a notation on the cover "Adopted May 4, 1954" followed by the dates "Aug. 15, 1961," "Feb. 5, 1969 and June 16, 1978." (Plaintiff's Exhibit 4.) The plaintiff claims that Rule 26 on page 25 of Plaintiff's Exhibit 4 sets forth the legally binding provision in the Regulations that currently governs the filling of vacancies in the office of Chief of Police (the "Rule 26 Version"). Plaintiff's Exhibit 4 is not certified by the Borough Clerk as a true and attested copy of an official Borough record. The source of Plaintiff's Exhibit 4, according to the plaintiff's testimony, is that it was given to him in April of 2007 when he requested a copy of the Regulations from the Department's training officer, Patrolman Kenneth Butler. It consists of a photocopy, which has on its face, a multitude of handwritten notes, comments, question marks, arrows (in different handwriting styles) and various provisions crossed out with notations that they were "changed" on various dates that don't correspond to the dates on the cover page. Of the 27 pages, only 2 pages are unmarked and most pages have multiple markings. Attached to the back of Plaintiff's Exhibit 4 are 13 pages of what purport to be amendments or revisions to the first 27 pages. The attached pages are unnumbered and are a collection of portions of minutes of meetings of the Board, a 1971 letter from a former Chief on official letterhead (with a crossed out provision), "Proposed Regulations Governing Policewomen" and various other items, all of which are similarly strewn with handwritten edits, comments and markings. When asked by the defendant's attorney where he obtained the Plaintiff's Exhibit 4 regulations, Patrolman Butler testified that they were given to him by Henry Desrosiers who "used to be a police officer." [T. 39.]
The plaintiff has not addressed the problem created by the fact that Rule 26 of the Regulations claimed by the plaintiff to be the Department's seminal Regulations, is entitled "PROMOTIONS." The provision relied upon by the plaintiff to support his assertion of the defendant's ineligibility is found in Section 3 and reads in pertinent part as follows:
"3. Applications for promotions for the various ranks within the department shall have the following requirements:
D. For promotions to the rank of Chief at the time of application for promotion at least ten (10) years of service in the Department and shall hold the rank of Deputy Chief at the time of application." (Emphasis added.)
Even if the plaintiff were to establish that Rule 26 remains in effect, there can be no doubt that the express terms of the Rule limit its application to requirements for "promotions for the various ranks within the Department." There is nothing in Rule 26 or in any other provision of the Regulations that would prevent the Board from filling the position of chief from outside the Department.
The defendant offered Defendant's Exhibit C as evidence in support of this argument that Rule 38 on page 89 of Defendant's Exhibit C sets forth the legitimate provision in the Regulations, which was validly adopted by the Commission at a meeting of the Board on April 15, 2003, and currently governs the filling of a vacancy in the office of Chief of Police (the "Rule 38 Version"). Page 1 of Defendant's Exhibit C is entitled "Rules and Regulations Governing the Police Department of the Borough of Naugatuck" and includes a notation that "All rules and regulations contained herein were approved by the Commission with consideration for the Collective Bargaining Agreement between the Borough of Naugatuck and Connecticut Independent Police Union Local #2. Should conflict be found, the Collective Bargaining Agreement will take precedent (sic) and be considered to be accurate." Defendant's Exhibit C is undated and like Plaintiff's Exhibit 4, is not certified by the Borough Clerk as a true and attested document.
Although the plaintiff and defendant disagree on whether the very different provisions of the Rule 26 Version or the Rule 38 Version govern the filling of a vacancy in the office of Chief, Section 6 of Rule 2 set forth in Plaintiff's Exhibit 4 submitted by the plaintiff and Section 1.25 of Rule 2 set forth in Defendant's Exhibit B submitted by the defendant read identically as follows:
"These rules and regulations may be altered or amended at any regular meeting of the Board by the affirmative vote of a majority of all the commissioners; provided, that notice of such alternation or amendment shall have been given at a previous meeting; or they may be altered, amended, or suspended by the affirmative vote of all six commissioners without such previous notice."
The Rule 38 version of the Regulations was voted on at a meeting of the Board on April 15, 2003, along with twenty-four additional amendments to the Regulations. The minutes of the meeting reflect that a quorum was present and that the vote taken was five in favor, none opposed and one Commissioner absent. (Defendant's Exhibit A.) The plaintiff's claim is that since the amendments did not receive the affirmative vote of all six Commissioners, notice of the action taken was required to be given at a previous meeting and that such notice requirement was not satisfied.
Former Commissioners Woodfield and Bosco both testified that their recollection did not conflict with the January 21, 2003 Board meeting minutes, which state that Chairman Dambowski reported that he wanted to vote "soon" on the amendments and that at the February 18, 2003 Board meeting, Dambowski requested "feedback" from the Commissioners on the proposed amendments "before the next meeting." Both Bosco and Woodfield also testified that draft amendments had been distributed to the Commissioners at previous meetings and at a special meeting or meetings, where workshops specifically devoted to the topic of revising the Regulations were conducted.
The credible testimony of several former Commissioners confirmed that the proposed amendments were distributed to the Commissioners by Dambowski at the January meeting, and to the best of their recollection, they were the same amendments that were voted on at the April 15, 2003 meeting. Former Commissioner Woodfield testified that there was no difference between Rule 38 as it appeared on page 89 of the draft Regulations (Defendant's Exhibit B) previously distributed to the Commissioners and Rule 38 on page 89 of the proposed Regulations voted on at the April 15, 2003 meeting. [T. 83]
Former Commissioner San Angelo, who chaired the Board's Subcommittee on Rules and Regulations, testified that Chairman Dambowski read aloud each of the proposed amendments taken up and voted on at the April 15, 2003 meeting. Woodfield and San Angelo both testified that they could recall no objection being expressed at the April 15, 2003 meeting to the taking up and voting on the amendments to the Regulations including the one governing the hiring of a new chief. The minutes of the April 15, 2003 Board meeting were accepted at the May 20, 2003 Board meeting by the unanimous vote of all six Commissioners, including the Commissioner absent at the April 15, 2003 meeting.
Although the parties have focused on the issue of whether Rule 38 of the Regulations was validly adopted and therefore supersedes Rule 26 of the Regulations, in order to rule on whether the defendant legally holds office, the court must first determine whether the Regulations in either form are applicable to the appointment of the Chief.
As noted, the Borough operates under a charter granted by the legislature pursuant to the Act. "[A] town charter, whether adopted by special act of the General Assembly or . . . under the Home Rule Act; General Statutes § 7-188; constitutes the organic law of the municipality . . . It is well established that a [town's] charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised." (Internal quotation marks omitted.) Palermo v. Ulatowski, 97 Conn.App. 521, 524, 904 A.2d 1278, cert. denied, 280 Conn. 936, 909 A.2d 961 (2006).
Section 3 of Article VIII of the Act provides in pertinent part that the Board "shall appoint all policemen, both members and officers including the chief of police . . ." Section 3 further provides that "The board shall set up all regulations pertaining to the police department, including standards governing the conduct and discipline of the members, officers and chief of police, standards governing the selection of members of the police department . . ." (Emphasis added.)
Section 9 of Article VIII of the Act provides that "the word `member' or `members' means those persons . . . who hold the rank of regular patrolman . . . The word `officer' or `officers' as used in this act shall mean those in the department . . . who shall be above the rank of regular patrolman but shall not mean the chief of police of said department." (Emphasis added.)
Rules of statutory construction apply in construing a municipal charter. Arminio v. Butler, 183 Conn. 211, 217, 440 A.2d 757 (1981). Words in a charter are to be given their commonly understood meaning. Kilpatrick v. Board of Education, 206 Conn. 25, 535 A.2d 1311 (1988). "It is well settled that one of the primary guides for interpreting a statute, indeed the first guide to be consulted, is the language of the statute itself." Garrison v. Planning Board, 66 Conn.App. 317, 321, 784 A.2d 951 (2001).
Although the Act requires that the Board "set up regulations" governing the "conduct and discipline" of the chief of police, there is no mandate nor any authority in the Act for the Board to "set up regulations" for the "selection" of a chief. The express language of the Act clearly distinguishes the selection of "members" of the department, for which the Board is mandated to adopt regulations, from the "appointment" of a chief of police for which the Board has no authority to adopt regulations.
As for the effect of the Board's having taken action in the past of ostensibly adopting regulations which include procedures for the selection of a chief, any such action would be a nullity. A board of police commissioners is an administrative agency. Comley ex rel. Brown v. Lawlor, 119 Conn. 155, 161, 174 A. 415 (1934). "[A board of commissioners] is a creature of the General Assembly, having neither any inherent nor any common-law power. Whatever functions it may perform are restricted to those which the legislature has expressly or by necessary implication conferred. It can legally act only within the sphere of its authority, and the exercise of its powers is subject to such limitations as are found in the legislative act which brought it into existence or in other acts devoted to the regulation of those powers." Wilson v. West Haven, 142 Conn. 646, 653, 116 A.2d 420 (1955).
The promulgation by the Board of any regulations governing the selection of a chief of police, whether properly or improperly adopted, would be in direct conflict with the express language of the Act and constitute an invalid amendment to the Borough's charter. The only valid manner in which a municipality may amend its charter is to comply with the provisions of § 7-188 of the General Statutes, known as the Home Rule Act. A municipality may not waive the provisions of the act. See, e.g., Sloane v. Waterbury, 150 Conn. 24, 28-29, 183 A.2d 839 (1962); Lacava v. Carfi, 140 Conn. 517, 520, 101 A.2d 795 (1953).
General Statutes § 7-188(b) provides: "Any action [to adopt or amend a charter of a municipality] shall be initiated by a resolution adopted by a two-thirds vote of the entire membership of the appointing authority of such municipality, or by petition filed with the clerk of such municipality for submission to the appointing authority and signed by not less than ten per cent of the electors of such municipality, as determined by its last-completed registry list; provided, in the case of a consolidated town and city having a town clerk and a city clerk, such petition shall be filed with the city clerk."
V CONCLUSION
A plain reading of the Act requires the Board to adopt regulations for the selection of members of the Borough's Police Department, but does not grant the authority to the Board to adopt regulations for the selection of the Borough's Chief of Police. Any regulations adopted by the Board which purport to govern the selection of a chief conflict with the express language of the Act and are, therefore, invalid. Accordingly, the Board was under no requirement to follow any regulations in its appointment of a Chief of Police for the Borough.
The defendant submitted abundant evidence that the procedures followed by the Board to fill the vacancy in the Chief's position were thorough and proper. The result was an open, fair and competitive selection of a successor Chief of Police. The court, therefore, finds that the defendant has met his burden of proof and that he legally holds the position of Chief of Police of the Borough of Naugatuck as a matter of right. Accordingly, judgment is hereby entered for the defendant.