Opinion
No. CV05-4008609
April 16, 2007
MEMORANDUM OF DECISION
Robert Nappe brings this mandamus action to compel the East Haven Board of Police Commissioners to reinstate him to his former position of East Haven Police Officer pursuant to Connecticut General Statutes section 7-294aa. The defendant, the East Haven Board of Police Commissioners, opposes the action claiming that it is not the appropriate entity to whom to direct the request for reinstatement; and that Mr. Nappe is not entitled to a position as police officer pursuant to C.G.S. section 7-294aa.
The plaintiff originally brought the action pursuant to Public Act 04-241, which became C.G.S. section 7-294aa. Public Act 04-241 provided that:
Any sworn police officer employed by the state or municipality who takes a leave of absence or resigns from such officer's employment to volunteer for participation in international peacekeeping operations, is selected for such participation by a company which the United States Department of State has contracted with to recruit, select, equip and deploy police officers for such peacekeeping operations, and participates in such peacekeeping operations under the supervision of the United Nations, the Organization for Security and Cooperation in Europe or other sponsoring organization, shall be entitled, upon return from such leave, (1) to be restored by such officer's employer to the position of employment held by the officer when the leave commenced, or (2) if the original position of employment is not available, to be restored to an equivalent position with equivalent benefits, pay and other terms and conditions of employment signed by the Governor June 8, 2004.
At issue in this case is a matter of first impression for this court: whether C.G.S. § 7-294aa provides Mr. Nappe with the right to be reinstated as an East Haven Police Officer. For reasons more fully set forth in this decision, this court concludes that section 7-294aa is not unconstitutional and does provide Robert Nappe with the right to be restored to his former position by the defendant, the East Haven Board of Police Commissioners, the municipal entity responsible for all appointments to the East Haven Police Department.
ISSUES IN DISPUTE
There are a number of contested issues in this case. First, there is a dispute as to whether the defendant is the proper entity to whom to direct the request for reinstatement. Second, there is a dispute as to whether the duty imposed by section 7-294aa is mandatory or discretionary. Third, the parties disagree over whether section 7-294aa applies to retirees or only to those who take a leave of absence or resign. Fourth, the plaintiff contends that the statute pertains to any municipal or state police officer who leaves his/her employment after September 11, 2001; but, the defendant argues that to apply the statute to the plaintiff would require the court to apply it retroactively. Fifth, the parties disagree about the meaning of the term "volunteer" in the statute. Sixth, there is a dispute over whether the plaintiff proved that he participated in an international peacekeeping operation under the supervision of the United Nations. Seventh, the parties argue over whether the plaintiff is entitled to reinstatement to the position of East Haven Police Officer or to the position of Supernumerary Police Officer. Eighth, the defendant contends and the plaintiff disputes that the plaintiff's conduct bars the court from granting him the requested relief because he initially brought an action for declaratory judgment, as well as for a writ of mandamus. And, finally, ninth, the defendant attacks and the plaintiff defends the constitutionality of section 7-294aa.
FACTS
The evidence presented in this case provides a colorful and contemporary narrative. While the subtext of this narrative echoes important and critical societal themes, deciding this case requires this court to narrowly review what happened when Robert Nappe decided that he wanted to serve in Iraq as a civilian police officer; and then to apply section 7-294aa to those facts.
From the evidence that was introduced at trial this court finds the following facts to have been proven.
1. Robert Nappe a trained paramedic, had been a police officer in the East Haven Police Department for seventeen years, when terrorist attacked and destroyed the World Trade Center buildings on September 11, 2001.
2. Following the attack on the World Trade Center buildings, Officer Nappe volunteered to serve as a Paramedic at Ground Zero.
3. Officer Nappe's service at Ground Zero was a motivating factor in his decision to voluntarily leave his position as an East Haven Police Officer to serve in a peacekeeping operation in Iraq.
4. In 2003, former Secretary of State Colin Powell issued a request to Police Departments across the country for police officers to serve in peacekeeping and training missions in and around Iraq.
5. In 2003, with nineteen years of service in the East Haven Police Department, Officer Nappe requested that the East Haven Board of Police Commissioners grant him a leave of absence so that he could serve in Iraq as a volunteer Police Officer.
Officer Nappe initially presented a letter which was first considered at the July 29, 2003 East Haven Board of Police Commissioners Meeting. Trial Exhibit B, Minutes from the July 29, 2003 East Haven Board of Police Commissioners Meeting. Then, on September 30, 2003, Officer Nappe resubmitted his request along with "a petition with 600 names in support of his request." Trial Exhibit C, Minutes from the September 30, 2003 East Haven Board of Police Commissioners Meeting.
6. The East Haven Board of Police Commissioners initially considered Officer Nappe's request for a leave of absence at its July 29, 2003 meeting.
See Trial Exhibit B. According to minutes from the meeting, "Officer Robert Nappe addressed the Board and read a letter he wrote to the Board asking for consideration regarding his participation in a humanitarian relief effort in Iraq, which would require a leave of absence from the police department." In Executive Session the board tabled the issue.
4. See Trial Exhibit C. According to minutes from the meeting "Chief Gallo stated that he admired Officer Nappe's passion but that we are already short police officers on the street and the new recruits that were hired will take at least seven months to get them on the streets. He also commented that Officer Nappe would be a paid employee by Dyn Corp and that to pursue a new avenue of work would set a dangerous precedent. If this were a military leave it would be accepted. Chief Gallo recommended to the Board that they not grant Officer Nappe a leave of absence."
7. At the September 30, 2003 East Haven Board of Police Commissioners Meeting, East Haven Police Chief, Leonard L. Gallo, expressed the opinion that there were too many vacancies within the Department to grant Nappe's 2003 request for a leave of absence; and that he believed granting the request would set a dangerous precedent.4
8. At the September 30, 2003 East Haven Board of Police Commissioners Meeting, the Board voted unanimously to deny Officer Nappe's request for a leave of absence.
9. Officer Nappe verbally renewed his request for a leave of absence at an October 28, 2003 Board of Police Commissioner's Meeting, citing new personnel information and opinions provided to him by the Union.
See Trial Exhibit D. At the October 28, 2003 meeting Officer Nappe stated that "he had spoken to Union President and the Labor Attorney and it is their opinion that to give him a leave of absence under the circumstances would not set a precedent or be viewed as a past practice. It would be considered an isolated leave of absence." Minutes from Meeting. Additionally, Officer Nappe submitted "the policy at Harvard" and volunteered to "forego his medical coverage but would like for his wife to continue coverage." Id. During the meeting, Officer Nappe also noted that because an officer had returned to work after having been out for one year, granting his leave request would place the Department in the same position in terms of man-power.
10. The Board declined to reconsider its decision to deny Officer Nappe's request for a leave of absence.
11. Notwithstanding the Board's denial of his request for a leave of absence, Officer Nappe continued to prepare to serve in Iraq in a peacekeeping operation.
12. Officer Nappe underwent an extensive background check in order to be selected for participation in a peacekeeping mission in Iraq.
13. Officer Nappe used his own vacation time to complete training in Virginia.
14. Upon completion of the background check and his training period, Officer Nappe submitted a letter to the Board of Police Commissioners, indicating his intention to take early retirement.
15. Officer Nappe did not desire to sever his employment relationship with the East Haven Police Department.
See Trial Exhibit 6. In the undated letter to the Board of Police Commissioners, the plaintiff wrote: "As you know, I have requested a one-year leave of absence to work for the State Department in Iraq . . . You have denied my request, and accordingly I will be absent from the Department for the next year without your prior permission. In order to protect what pension that remain, I hereby request early retirement . . . This [request for early retirement] shall take effect immediately upon my retirement date that is registered at the Town Hall in the finance department. However, my desire is to remain a Police Officer in East Haven, and to return to that position after my service in Iraq. Once again I request that I be given a one-year leave of absence. In the event that this leave is denied, I will request that you reconsider your decision upon my return from Iraq and permit me to rescind my retirement and treat this next year as a leave of absence." (Emphasis added.)
16. Officer Nappe was married during the time he prepared to leave the East Haven Police Department for one year to serve in Iraq in a peacekeeping operation.
17. In 2003, Officer Nappe had accrued retirement benefits from serving in the East Haven Police Department.
18. Officer Nappe's wife, at the time of his retirement, was entitled to 50% of his retirement benefits.
19. Officer Nappe's wife would have been entitled to less benefits had he resigned rather than retired.
20. Effective January 10, 2004, Robert Nappe retired from the East Haven Police Department as a Grade A Police Officer and an officer in good standing: his last effective day as a Grade A Police Officer was January 9, 2004.
21. Beginning on January 20, 2004, prior to leaving for Iraq, Nappe was appointed as a Supernumerary Police Officer for the Town of East Haven.
22. From February 2004 through February 2005, Mr. Nappe served in Iraq on a peacekeeping mission as a Police Advisor employee of DyCorp.
23. Nappe's employment fell under the purview and control of United States Department of State.
24. The United States Department of State indicated, on its website, that civilian officers deployed overseas work most often under the sponsorship of the United Nations or other sponsoring organization.
25. It was Nappe's understanding that the mission on which he worked was under the jurisdiction of the United Nations.
26. Nappe's duties in Iraq included training Iraqi police and, specifically, working with river patrol.
27. Nappe worked 6-7 days per week and 12-14 hours a day while in Iraq.
CT Page 12387
28. While in Iraq, Nappe earned an annual salary of $46,923.00.
29. The danger in Iraq required Nappe and other civilian police officers from the United States to be embedded with the United States Military.
30. Upon his return to the United States, on February 28, 2005, Nappe requested that the East Haven Board of Police Commissioners reinstate him to the position of East Haven Police Officer pursuant to Public Act 04-241.
See footnote 1 for the text of P.A. 04-241.
31. The East Haven Board of Police Commissioners solicited an opinion from counsel regarding Nappe's February 2005 request for reinstatement.
32. On March 4, 2005, the Board's counsel, defense attorney Larry Sgrinari, opined that section 6 of Public Act 04-241 did not apply to Nappe because he had retired and because the public act would be, presumptively, applied prospectively.
33. Defense counsel Sgrinari also opined that the Board of Police Commissioners lacked the authority to grant Nappe's request for reinstatement.
34. The East Haven Board of Police Commissioners never responded to or acted upon Nappe's February 2005 request for reinstatement.
35. At the time of Nappe's February 2005 request for reinstatement, the East Haven Police Department had vacancies for the position of Police Officer.
36. In a letter dated July 19, 2005, Nappe renewed his request for reinstatement, relying upon P.A. 05-200.
37. East Haven Board of Police Commissioners never responded to Nappe's July 19, 2005 request.
At the time that Nappe forwarded his letter dated July 19, 2005, he had already initiated the current lawsuit in which the defendant asserted its various claims in motions, and pleadings.
38. At the time of the trial, the East Haven Police Department had at least four vacancies for the position of Police Officer.
39. At the time of the trial, there was a class in the Police Academy which would provide candidates to fill some of the vacancies in the East Haven Police Department.
40. There are periodic vacancies within the East Haven Police Department for the position of Police Officer.
PROCEDURAL HISTORY
On March 17, 2005, Mr. Nappe initiated this action against the Town of East Haven, Mayor Maturo, Police Chief Gallo and the East Haven Police Commission, seeking reinstatement to his former position of East Haven Police Officer. The original complaint made two claims: one for declaratory judgment; the other for a writ of mandamus. The Defendants filed a motion to dismiss on May 5, 2005 challenging Nappe's standing to bring the action, which motion was denied by the Court (Thompson, J.) on May 23, 2005.
On January 20, 2006 and January 26, 2006, the plaintiff filed a Revised Complaint and a Second Revised Complaint, respectively, requesting only a writ of mandamus pursuant to P.A. 04-241 and P.A. 05-200, and citing the East Haven Board of Police Commissioners as the sole defendant.
On March 13, 2006, the defendant filed a Motion to Strike the Second Revised Complaint, arguing that the plaintiff failed to allege a clear legal right to reinstatement; the public acts do not compel the Board to act because it is not the employer of the plaintiff; and any duty which the plaintiff seeks to enforce is ministerial and not mandatory. The Court (Devlin, J.) denied the motion on May 31, 2006.
On June 16, 2006, the plaintiff filed a Third Revised Complaint citing only the East Haven Board of Police Commissioners and requesting a writ of mandamus pursuant to P.A. 04-241 and P.A. 05-200. On July 18, 2006, the defendant filed an Answer and 2 Special Defenses to the Plaintiff's Third Revised Complaint. In the First Special Defense the defendant alleged that P.A. 05-200 constituted an exclusive emolument, in violation of the Connecticut Constitution. In the Second Special Defense, the defendant alleged that the plaintiff's inequitable conduct bars the relief he requests in this action. On July 24, 2006, the plaintiff denied the two Special Defenses.
The trial in this matter took place on October 26, 2006 and November 3, 2006. Following the trial, the defendant filed a Post-Trial Brief on December 1, 2006 and a Reply to the Plaintiff's Trial Brief on December 15, 2006. The plaintiff filed his trial brief on December 5, 2006 and his Reply to the Defendant's Trial Brief on December 20, 2006.
Plaintiff filed a Motion for Leave to File Plaintiff's Reply to Defendant's Post-Trial Brief dated December 21, 2006, which the court granted.
HISTORICAL CONTEXT AND BACKGROUND
Though only addressed peripherally, there is a relevant historical context which frames and defines many of the issues in this case. First, at all times relevant to this case the United States was engaged in a military action in and around Iraq. Second, the United States relies upon an all-volunteer military. Third, the federal government, through former Secretary of State Colin Powell, requested that civilian police officers volunteer to serve in peacekeeping missions in 2003. Fourth, although Connecticut law provides specific protections to individuals who leave government employment to serve in the U.S. military (C.G.S. § 5-255 and § 7-462), prior to September 11, 2001, similar protections were not available to government employees who served in non-military capacities.
See, e.g. "All Volunteer Force: Proven Quantity in the Persian Gulf War and Beyond," January 13, 2003, About: US Military, www.usmilitary.about.com; and "The Reality of Our All-Volunteer Military," November 25, 2005, A21, www.washingtonpost.com.
Section 5-255 provides, in pertinent part, that: "Any employee who leaves or had left the state service for the purpose of entering the armed forces of the United States shall be reinstated in his former position and duties, provided, within 90 days after he has received a certificate of satisfactory service from the armed forces, he makes or has made application for return to the state service . . ."
Section 7-462 provides in pertinent part that: "Any employee who leaves the service of any political subdivision for the purpose of entering the armed forces of the United States shall be reinstated in his former position and duties, provided he shall make application for return to such service within ninety days after he has received a certificate of satisfactory service from the armed forces."
In Public Act 04-241, the Connecticut General Assembly extended job protections to state and municipal police officers who leave their employment to serve in certain non-military peacekeeping missions after September 11, 2001. While there is no legislative history for P.A. 04-241, there is legislative history available for P.A. 05-200, the act which amended P.A. 04-241. This legislative history discloses the intent and purpose of the General Assembly with regard to both acts. Public Act 04-241 and Public Act 05-200 are codified in the current version of C.G.S. § 7-294aa.
Section 7-294aa establishes a clear public policy which supports the non-compulsory non-military service of municipal and state police officers in peacekeeping missions following September 11, 2001. The statute also vests the officer with the discretion to leave his/her job for such voluntary service, whether his/her employer approves of the leave or not. And, importantly, the act mandates that municipal and state employers restore and reinstate their police officer-employees when they return from such leaves having served in non-military peacekeeping missions after September 11, 2001.
The court turns, first, to the language and legislative history of section 7-294aa which provides in pertinent part that:
Any sworn officer employed by the state or a municipality who takes a leave of absence or resigns from such officer's employment on or after September 11, 2001, to volunteer for participation in international peacekeeping operations, is selected for such participation by a company which the United States Department of State has contracted with to recruit, and participates in such peacekeeping operations under the supervision of the United Nations . . . or other sponsoring organization, shall be entitled to, upon return to the United States, (1) to be restored by such officer's employer to the position of employment held by the officer when the leave commenced, or (2) if the original position of employment is not available, to be restored to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment, provided not later than six months after such return such officer notifies such officer's employer of such return and such officer's desire to be restored to such officer's original position of employment or an equivalent position of employment.
Legislative History
The plaintiff voluntarily retired . . . so that he could work for a private company [in Iraq] . . . He did so knowing full well that he had no right to return to his former position. Defendant's Post-Trial Brief, dated December 1, 2006, pp. 28-29.
Before the passage of section 7-294aa this may have been a correct statement of the law. However, with the passage of P.A. 04-241 and P.A. 05-200, the Connecticut General Assembly created for municipal and state police officers a statutory right to return to one's former position under the circumstances presented in this case.
It is clear from the legislative history that the General Assembly intended the law to apply to all those municipal or state police officers who left their jobs of their own free will to serve in peacekeeping missions after September 11, 2001. Notwithstanding the use of the words "leave of absence" and "resign" in the statute, this court concludes that the clear intent of the General Assembly was to prevent the very situation which arose in this case. The statute was passed to prevent a town from prohibiting a police officer from leaving his position (whether by taking a leave of absence; resigning; or retiring) to serve overseas on a peacekeeping mission; and to prevent the town from denying that individual reinstatement to his old job when he returned.
Intent and Purpose of the Law
Rep. Lawlor explained the purpose and intent of P.A. 05-200 which was amending P.A. 04-241.
This Amendment makes it clear that police officers who volunteer for peacekeeping activities cannot have their certificate expire while they are out of the Country on those peacekeeping activities.
And upon their return, under existing law, they're entitled have their positions reinstated, but this Amendment makes it clear that this only applies to peacekeeping activities after September 11, 2001.
And that they have an obligation to notify, to request the reemployment within six months of their return to the United States . . .
[I]t was clear the intent to deal with persons who volunteer in the war on terrorism.
2005 Connecticut General Assembly House Proceedings Vol. 48, Part 12, pp. 8150 and 8155.
The peacekeeping service governed by the legislation was that performed "in connection with the war on terrorism . . . which I believe we all know began on September 11, 2001 . . ." Id. at 8189. ". . .[T]he intent . . . of the existing law, is to ensure that police officers who had volunteered, or who will volunteer for this duty, are guaranteed employment when they return . . ." Id. at 8172-3.
Senator McDonald echoed this explanation of the meaning and purpose of section 7-294aa:
[T]his amendment is intended to clarify, in one respect, and expand, in one respect, our current statutes on the ability of police officers who are serving in, serving in a capacity overseas in international peacekeeping operations and their ability to regain their employment status upon their return to the United States."
2005 Connecticut General Assembly Senate Proceedings, Vol. 48, Part 12, p. 3781.
Meaning of "Volunteer"
The statute applies to those municipal and state police officers who work for private companies with contracts with the State Department, even if those individuals were paid for their service by the contractors. 2005 Connecticut General Assembly House Proceedings Vol. 48 Part 12 at 8154-55 and 8169.
In response to a query as to whether "volunteer" means unpaid, Representative Lawlor responded that it did not: "No, [the volunteers are] not unpaid. I believe the salary is approximately $75,000 per year." 2005 Connecticut General Assembly House Proceedings Vol 48 Part 12 at 8169. At another time he again explained his understanding of the employment terms: "I believe that the approximate compensation for police officers who participate in this peacekeeping operations is $75,000 per year, which is approximately what a veteran police officer would earn. Not including overtime, I think a typical officer with the kind of experience required to participate in this would probably earn more by remaining in his or her job, including overtime than they would if they participated in this peacekeeping operation, which does not afford overtime. It's sort of a 24/7 obligation . . ." Id. at 8206.
Rep. O'Neill (69th) added that: "apparently the corporation that the State Department hired to do this kind of work is called Dyn Corporation, and on a website called the International Police Programs Information Resource, or Source, they indicate compensation level for the police officers who seem to meet the criteria, eight years of work experience, five years being a sworn officer, and so on . . . The compensation is up to $120,000 for their one year contract . . ." Id. at 8207.
In the statute, the term "volunteer," does not mean working without pay, but rather, leaving employment of one's own free will. As Rep. Lawlor explained, these individuals do not leave because they are compelled by law to go. Rather, the officers covered by this statute leave their jobs because they are motivated by an internal desire to fulfill their patriotic duty to serve.
Other than a sense of patriotism and an interest in helping to protect the United States in the war on terrorism, no I don't think there is [a law to compel them to go].
I mean, these are very brave men and women who have volunteered to go overseas, and put themselves in harm's way, at the request of the United States Government, because there was a special need for trained, mid career police officer to perform a function.
And I think based on the law that's already on the books, its clear that we intend to protect their employment, just as we do with many other people who answer the call of the government to perform a variety of functions . . . Id. at 8170.
The legislature clearly understood that the "volunteers" to whom the statute would apply, were paid, and in many cases paid quite well, for their service overseas.
Leave of Absence/Resignation/Retirement
According to the legislative history, the statute vests the police officer, not his/her employer or supervisor, with the discretion to decide whether or not to leave his/her position to volunteer for peacekeeping mission(s). Rep. Beamon queried, whether under the law "a police officer [can] quit at will, or at any time?" To which Rep. Lawlor replied ". . . [Y]es . . ." Id. at 8180. ". . .[T]he public policy behind the existing law is that when the need arises, and if state employees and local employees wish to volunteer, to put their lives on the line to help in what is obviously a compelling need for our Federal Government, and for all of us for that matter, that we should accommodate them in the same way we accommodate others who put their lives aside temporarily to answer a call." Id. at 8188.
The legislative history suggests that the terms "leave of absence" and "resignation" are to be broadly interpreted and applied. The statutory language specifically refers to police officers who take a leave of absence and those who resign. Implicitly, it also covers officers who retire. The legislature, apparently, did not include the term "retire" in the Acts because it anticipated that retired officers would generally be too old to perform the duties required on a peacekeeping mission.
Amendment to 7-294aa was meant to address "concern that was brought forward by a number of police chiefs who were concerned that the way the original statute was written, it was completely open ended.
And they weren't sure whether or not they should continue to at least contemplate the possibility of someone who had left for that purpose, and maybe had retired for example, would want to come back later on.
There was, I guess, some confusion by that, and in order to rectify that confusion, this would put a clear time limit on that." 2005 Connecticut General Assembly House Proceeding Vol. 48, Part 12 at 8212.
. . . [T]he United States Department of State, I guess was two years ago or so, determined that it was necessary to bring mid-career police officers to Iraq and to Afghanistan to help maintain order, and to help train the Iraqi police, and solicited mid-career police officers from around the Country to participate in that activity.
Obviously retired police officers might actually be too old and unable to perform these duties, so they deliberately soliciting these police officers who had the appropriate experience and training, who would be willing to volunteer, to deploy to Iraq or to Afghanistan, under the aegis of the United States Department of State, and perform these responsibilities.
So police officers who did volunteer for these activities, had to either seek a leave of absence from police departments, and some were successful, some were not.
The underlying statute, that's already the law protects their right to be reemployed upon their return.
So they are not in the United States military, they are working on behalf of the United States Department of State. Id. at 8168-9.
Rep. Lawlor was asked specifically a number of times about "a police officer who retired and then went off to Iraq and came back." That officer is presumably Robert Nappe. In response to each query, Rep. Lawlor consistently opined that he believed that section 7-294aa applies "the officer." "It's my opinion that the existing Legislation, the current 7-294AA, does apply to the officer involved in the actual litigation . . . I think the existing statute clearly applied to that officer. This doesn't change, the language of this Amendment doesn't change that." Id. at 8203.
WRIT OF MANDAMUS
"The writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions and is not to be extended beyond its well-established limits. Chatfield Co. v. Reeves, 87 Conn. 63, 64; Lahiff v. St. Joseph's Total Abstinence Benevolent Soc., 76 Conn. 648, 651. The essential conditions for the issuance of the writ to enforce the performance of a ministerial duty are: (1) The party against whom the writ is sought must be under an obligation imposed by law to perform some such duty, i.e., a duty in respect to the performance of which he may not exercise any discretion; (2) the party applying for the writ has a clear right to have the duty performed; and (3) there is no other sufficient remedy. Chatfield Co. v. Reeves, supra; Bassett v. Atwater, 65 Conn. 355, 360." Venditto v. Auletta, 31 Conn.Sup. 145, 148, 395 A.2d 458 (1974).
"It is a fundamental principle that the peremptory writ should run singly to the person whose duty it is to perform the act required . . . The prerogative writ of mandamus is to direct intervention of the State to compel a person, natural or artificial, on whom the law imposes a public duty, to perform that duty. Fuller v. Plainfield Acad. School, 6 Conn. 532, 547; Farrel v. King, 41 id. 448, 453 . . ." Id. at 149-50.
I.
Section 7-294aa provides that police officers "shall be entitled . . . to be restored by such officers employer . . ." (Emphasis added.) The plaintiff requests a writ of mandamus ordering the defendant to "reinstate" or "restore" him to the position of an East Haven Police Officer. The defendant argues that it cannot be ordered to "restore" the plaintiff because it is not his employer and it does not have the power to do so. The defendant's position is neither supported by the facts or the law.
"Restore" literally means "to bring back to the original state by rebuilding, repairing, etc.; reinstate; replace; put back, bring back." Oxford American Desk Dictionary and Thesaurus, Second Edition (2002). "Reinstate" means "to replace in a former position, to restore to former privileges." Oxford American Desk Dictionary and Thesaurus, Second Edition (2002). So, restoration would require that Robert Nappe be reinstated or reappointed to the position of East Haven Police Officer.
This court has found no cases in which a Board of Police Commissioners has claimed, as the defendant does in this case, that it is not within the sphere of its authority to restore or "reinstate" an individual to its local Police Department. Those cases addressing related issues of reinstatement or restoration involved defendant Boards who acknowledged that it was their duty to perform the matter at issue. See, Venditto v. Auletta, supra (Because of the nature of relief the plaintiff sought — (1) a hearing; (2) reinstatement; or (3) retirement — the court concluded, and the defendant did not contest, that "[t]he writ of mandamus sought could only reach the police commission of three members."); and Kisluk v. Board of Police Commissioner, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 90-0439687, (Goldberg, J., July 27, 1990) [ 2 Conn. L. Rptr. 232] (Though the defendant in Kisluk contested that the plaintiffs had a right to appointment, "[t]he defendant Board, in its brief, conceded that it has a mandatory duty to perform . . .").
It is well settled law that "[w]henever the performance of some municipal duty is sought to be compelled by a writ of mandamus, the writ should be directed to the officer or board of the municipal government specially charged with the performance of the thing to be done. If the municipal corporation has no such officer or board, then the writ may be directed to the municipality by its corporate name. Mandamus confers no new authority, and it must appear from the record that the party to be coerced has power to perform the act commanded." Venditto v. Auletta, supra at 149-50.
By Charter, within the Town of East Haven, the Board of Police Commissioners is the governmental entity through which all interested individuals must pass in order to become Police Officers in the East Haven Police Department. Although the Town of East Haven is, undisputably, the "employer" of East Haven Police Officers, the Town has delegated to the Board of Police Commissioners the task of hiring and firing police officers.
The East Haven Charter establishes that:
There shall continue to be a Police Commission, consisting of five (5) members in the Town of East Haven . . . The Police Commission, shall have jurisdiction and general control of the Police Department . . . The Board of Police Commissioners shall appoint and may remove . . . all Officers and Employees of the Police Department excepting the Police Chief. (Emphasis added.)
Town of East Haven, Connecticut Charter, chapter VI, section 7(A).
The sphere of authority of a local Board of Police Commissioners is defined by statute and by charter. See, e.g. Norwalk v Board of Labor Relations. 206 Conn. 449, 538 A.2d 694 (1988); and Wilson v. West Haven, 142 Conn. 646, 116 A.2d 420 (1955) ("[The board of police commissioners of West Haven] 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"). That sphere of authority contains within it all those related and necessary powers.
The East Haven Town Charter defines among the Board of Police Commissioner's powers, the power to "appoint." Therefore, implicitly, among the Board's powers is also the power to "re-appoint." Restoration to the police department is the functional equivalent of reappointment, reinstatement or rehiring. Therefore restoration, like rehiring or reinstatement, is clearly within the sphere of authority of the Board of Police Commissioners.
The Connecticut Supreme Court has construed a City Charter which utilized similar language as the East Haven Charter as empowering, the Board of Police Commissioners, and only the Board, to reinstate terminated employees of the police department. Norwalk v. Board of Labor Relations, supra at 452. In Norwalk v. Board of Labor Relations, the Supreme Court concluded that "the Norwalk city charter provides that only the police commission is empowered to reinstate terminated employees of the police department." (Emphasis added.) Id. The Norwalk Charter, like the East Haven Charter provides no specific or direct reference to the words "restore" or `reinstate". Rather, the Norwalk Charter, in similar language to that used in the East Haven Charter, gives jurisdiction over the Police Department to the Board and empowers the Board to hire and fire Police Department employees.
The Norwalk Charter provided, in pertinent part, that:
Said Board shall have control, management and supervising of policemen of said city and all property belonging to or used in Police Department. Said Board shall have the power to purchase all supplies and equipment necessary for the management of said department; to appoint, remove, suspend, discipline, publish and to prescribe the duties of all officers and members, whether regular, supernumerary or call, of said Police Department, and to fix their salaries and compensation, to make rules and regulations and government of said Department.
The defendant's argument that it did have the power to originally appoint Robert Nappe to the East Haven Police Department, but that now it does not have the power to restore him to the position for which it originally hired him, is disingenuous and without merit. Plaintiff's former employer, the Town of East Haven, hires its police officers through the East Haven Board of Police Commissioners. So, it is the East Haven Board of Police Commissioners which must restore Robert Nappe to the position of East Haven Police Officer and it is appropriate that this action be brought against the Board of Police Commissioners.
II.
The statutory language provides that "the sworn officer . . . shall be entitled to . . . be restored . . . to the position of employment held by the officer when the leave commenced." C.G.S. section 7-294aa (Emphasis added.) The statute creates an entitlement. Those officers who fall within the appropriate category are " entitled to be restored to employment . . ." (Emphasis added.) 2005 Connecticut General Assembly House Proceedings Vol. 48, Part 12, at 8162-3. The law "protects their right to be reemployed upon their return." Id. at 8168-9. In fact, the intent is, of the existing law, is to ensure that police officers who had volunteered, or who will volunteer for this duty, are guaranteed employment when they return." (Emphasis added.) Id. at 8172-3.
The express purpose of section 7-294aa is to protect the jobs of state and municipal police officers who volunteer for peacekeeping operations. The Act mandates that the municipal or state employer restore the employee to his/her former position upon his/her request to be restored. Accordingly, the duty imposed by the statute is mandatory as the plaintiff contends and not discretionary as the defendant argues.
While the decision to hire a police officers is generally discretionary, neither the explicit language of the statute, nor the legislative history support defendant's argument that the employers are given any discretion as to whether to restore or rehire an officer pursuant to section 7-294aa. If an officer meets the requirements of section 7-294aa, then he/she must be restored or rehired and the defendant board has no discretion in determining whether to restore an individual or not.
III.
Section 7-294aa applies to "[a]ny sworn officer employed by the state or municipality who takes a leave of absence or resigns . . . to volunteer for participation in international peacekeeping operations . . ." The plaintiff is entitled to reinstatement because he voluntarily left his employment with the East Haven Police Department in order to serve in Iraq on a peacekeeping mission. The plaintiff has proven that section 7-294aa does apply to him, even though he retired rather than resigned. The defendant's argument to the contrary is without merit.
This argument, that there is a substantive difference between "retired" and "resigned," was first considered by the court (Devlin, J.) in deciding the Motion to Strike. See, Nappe v Town of East Haven, Superior Court, judicial district of New Haven, Docket No. CV 05-4008609 (May 31, 2006). The Court (Devlin, J.) concluded that "the allegation that Nappe left his employment via `retirement' (after having been denied a leave of absence) is the functional equivalent of having resigned. Likewise, the allegation that he left his job in order "to serve" in Iraq is the functional equivalent of having `volunteered.'" Id.
As indicated in the legislative history excerpted above, it is the act of leaving one's employment with a municipal or state police department that is key to determining the applicability of the statute. When considering the legislative history in its totality and Rep. Lawlor's clearly expressed opinion that section 7-294aa applies to the plaintiff, this court concludes that the statute applies to retired officers, too.
Implicated in the decision to resign or retire are serious personal and financial considerations. The evidence adduced at trial established that Nappe was married at the time of his retirement. The evidence further established that had Nappe failed to return home alive and able-bodied, his wife would have been able to receive a portion of his retirement benefits. Those benefits would not have been available to her if he had opted to resign.
It is fortunate for Nappe and his loved-ones that he is here before this court, alive and able-bodied. However, given the realities of the situation in Iraq, his fortune was not a foregone conclusion. Had he been killed or disabled, as has been the fate for thousands of others who served in Iraq, the only way to ensure the payment of retirement benefits, which he earned with over nineteen years of service, was to retire. This court finds it difficult to conclude, given the expressed sentiments of the General Assembly, that the legislature intended to require an officer to forego financial security when given an option to do otherwise.
This court concurs with the reasoning of Judge Devlin that retirees are protected by the provisions of 7-294aa. Concluding that retirees are not protected, as the defendant argues, would undermine the clear intent of the statute by inequitably punishing officers and their families for opting to secure retirement benefits, when available, in order to serve their country. For purposes of section 7-294aa, "leave of absence," "resignation," and "retirement" are all terms which contain distinctions without a substantive or functional difference.
IV.
"Any sworn officer employed by the state or a municipality who takes a leave of absence or resigns from such officer's employment on or after September 11, 2001 . . . shall be entitled to . . . be restored . . . to the position." (Emphasis added.) 7-294aa. The statutory language clearly establishes that the statute applies to state and municipal officers who left or leave their employment to serve on peacekeeping missions after September 11, 2001. So does the legislative history. "This Amendment makes it clear that this only applies to peacekeeping activities after September 11, 2001." 2005 Connecticut General Assembly House Proceedings Vol. 48, Part 12, at 8150. Further, the Amendment to P.A. 04-241 does not ". . .chang[e] the date," it merely clarifies that the statute applies only to "persons who volunteer in the war on terrorism." Id. at 8155.
The defendant makes the argument that this court would have to apply the statute retroactively to apply it to the plaintiff. On the issue of retroactivity, Rep. Lawlor explained the legislature's perspective:
. . . the current law is very clear, who is covered by it, and I think that in the particular case [presumably the case of Nappe], which I am aware of, the issue is whether or not the statute was in effect retroactive. And I think that almost everyone that's looked at it agrees that that's not really an issue. The existing statute explains a category of an individual who's entitled to be restored to employment . . . So there's no question the current law applies to police officers who did volunteer for these peacekeeping activities.
Id. at 8162-3.
The evidence establishes that Robert Nappe left his employment with the East Haven Police Department in 2004 after the September 11, 2001 terrorist attack. The evidence further establishes that Robert Nappe requested that he be restored to the position of East Haven Police Officer in February 2005, when he returned to the United States. Accordingly, section 7-294aa applies to him.
V.
As noted above, section 7-294aa states that it applies to "any sworn officer . . . who takes a leave . . . to volunteer for participation in international peacekeeping operations." (Emphasis added.) The term "volunteer" in section 7-294 means to leave of one's free will. Therefore, the fact that the plaintiff was paid for his services by Dyn Corp, does not preclude him from invoking the provisions of section 7-294aa as the defendant argues.
When one refers to the all-volunteer armed forces of the United States of America, it is understood that U.S. soldiers enlist in the armed forces voluntarily and that they are paid a salary for their services. Similarly, the legislative history above indicates that the General Assembly passed P.A. 04-241 and P.A. 05-200 with the clear understanding that police officers will volunteer to serve in peacekeeping missions and that they will receive a salary for their service. The defendant has provided no support — nor has this court found any — for its argument that because Nappe received a salary from Dyn Corp, he did not "volunteer" for a peacekeeping mission.
VI.
Section 7-294aa applies to "peacekeeping operations under the supervision of the United Nations . . . and other sponsoring organizations." Robert Nappe left his job as an East Haven Police Officer of his own free will in order to work for Dyn Corp which operated pursuant to a contract with the United States Department of State. Trial Exhibit 5. Further, the plaintiff credibly testified that it was his understanding that the mission upon which he served was under the supervision and auspices of the United Nations. The defendant places great significance on what it claims to be a lack of evidence that the plaintiff participated in an international peacekeeping mission under the United Nations. However, this court does not find the requisite facts lacking.
During discussions about "peacekeeping operations" covered by the Acts, the legislators referred specifically to employment by Dyn Corp under the auspices of the United States Department of State. Thus, the General Assembly treated it as a given that section 7-294aa would apply to police officers who were employed by Dyn Corp to carry out their peacekeeping missions.
"Apparently the corporation that the State Department hired to do this kind of work is called Dyn Corporation, and on a website called the International Police Programs Information Resource, or Source, they indicate compensation level for the police officers who seem to meet the criteria, eight years of work experience, five years being a sworn officer, and so on . . . The compensation is up to $120,000 for their one year contract . . ." 2005 Connecticut General Assembly House Proceedings Vol. 48, Part 12, at 8207.
In deciding the Motion to Strike, Judge Devlin concluded that: "the allegation that the peacekeeping mission was `under the auspices' of the United States State Department is also adequate to allege application of the statute that requires the operation to be under the `supervision' of a sponsoring agency." Nappe v Town of East Haven, supra. Judge Delvin reached his conclusions, preliminarily, based upon allegations. This court reaches the same conclusions after the trial, finding that the allegations were proven by the plaintiff by a preponderance of the evidence.
VII.
Pursuant to section 7-294aa municipal and state police officers are entitled to be "restored . . . to the position of employment held by the officer when the leave commenced." (Emphasis added.) 7-294aa. It is undisputed that Robert Nappe's leave commenced upon the effective date of his retirement, January 10, 2004. Trial Exhibit 3. Therefore, Nappe must be restored to the position he held on January 9, 2004, the day before his leave commenced. The plaintiff was a Grade A Police Officer on January 9, 2004. Therefore, he must be restored to the position of a Grade A Police Officer in the East Haven Police Department. The defendant's argument, that if the plaintiff is entitled to restoration, it is to the position of a Supernumerary Police Officer, is unavailing.
At trial, evidence was introduced that established that, pursuant to the Collective Bargaining Agreement, the plaintiff was appointed to the position of a supernumerary police officer on January 20, 2004, a position he held until he left the United States for Iraq. But, Nappe's appointment as a supernumerary police officer is irrelevant to the determination of this action, because it followed the date of his leave.
The statute mandates that the officer be restored to the position he/she held prior to the commencement of the leave. Nappe was an East Haven Police Officer until the day he retired. He must be restored to the position of Police Officer.
VIII.
This action for a writ of mandamus is appropriate and the plaintiff's conduct does not bar him from pursuing it. Originally, the plaintiff brought an action for declaratory judgment and seeking a writ of mandamus. The plaintiff withdrew his action for a declaratory judgment, just as the plaintiff withdrew his claims against the Town of East Haven, the Mayor of East Haven and the Chief of Police of the East Haven Police Department. While the plaintiff initially made allegations in support of the request for declaratory judgment, this court concludes that those statements do not bar the current action. Plaintiff, with his legal counsel, made a decision to forego pursuing the declaratory judgment and only pursue the writ of mandamus at trial. This decision does not foreclose the plaintiff's right to pursue this action.
In support of his declaratory action the plaintiff made statements as to uncertainty regarding the applicability of section 7-294aa to him. Those statements are considered as evidentiary admissions in determining this case. However, this court concludes that those statements merely reflect the dispute between the parties. The plaintiff has repeatedly articulated his clear and unwavering belief that he is entitled to be reinstated to the position of East Haven Police Officer pursuant to section 7-294aa. The defendant has been equally unwavering in its position that the plaintiff is not entitled to be reinstated. The plaintiff's withdrawn pleadings set forth this dispute as "uncertainty." It is for this court to determine, now, which position is meritorious. It would be inequitable to deny the request for a writ of mandamus simply because the plaintiff correctly asserted that he and the defendant disagreed about whether the plaintiff is entitled to the relief requested. If the court were to so rule, then the defendant would unfairly benefit from taking the position that the right which the plaintiff seeks to enforce does not, as a matter of law, exist.
In order to decide whether to grant the request for a writ of mandamus, this court must determine, as a matter of law, whether section 7-294aa confers a legal and enforceable right upon the plaintiff. This issue could have been decided in a declaratory action. In fact, during the trial, the court took judicial notice of the fact that Peter Barton is currently pursuing a declaratory action regarding the applicability of section 7-294aa. But, rather than follow the path pursued by Barton, the plaintiff opted to seek a writ of mandamus instead. The defendant has provided no legal support for its conclusory argument that electing this option, after having requested a declaratory judgment, requires the denial of the plaintiff's request for relief.
See Barton v. City of Bristol, X01 CV 054022121, Judicial District of Hartford, a pending civil action brought by Peter Barton against the City of Bristol seeking, inter alia, a declaratory judgment as to the plaintiff's rights under section 7-294aa.
Unlike situations in which the plaintiff pursues alternative theories for relief, see, e.g. Venditto v. Auletta, supra, the plaintiff elected not to seek a declaratory judgment. This court concludes that it is proper for the plaintiff to pursue this action. Notwithstanding his previous claims in support of a request for a declaratory judgment, the plaintiff's conduct does not preclude the granting of his request for a writ of mandamus.
IX.
Finally, the defendant challenges the constitutionality of section 7-294aa, arguing that it violates Article First of the Connecticut Constitution, which prohibits public emoluments. Article first, § 1 of the Connecticut Constitution provides:
All men when they form a social compact, are equal in rights, and no man or set of men are entitled to exclusive public emoluments or privileges from the comity.
"It is well established that legislative enactments carry with them a strong presumption of constitutionality, and that a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt. Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980); Engle v. Personnel Appeal Board, 175 Conn. 127, 134, 394 A.2d 731 (1978); Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 470, 217 A.2d 698 (1966)." Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984).
Why non-municipal and non-state police officers are not accorded the same rights is not specifically addressed in the statute or in the legislative history. The role of this court is not to determine whether public policies set by the General Assembly are sound or good. State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 111, 90 A.2d 862 (1952). "It is beyond the judicial realm to pass upon the necessity and wisdom of any legislative enactment, the court's only duty being to determine whether a statute is within the legislative power and does not contravene any constitutional provision. Patterson v. Dempsey, 152 Conn. 431, 444-45, 207 A.2d 739, State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 111, 90 A.2d 862." State v. Clemente, 166 Conn. 501, 526, 353 A.2d 723 (1974).
"[Courts] are not to assess [the constitutionality of an act] in light of what we think of the wisdom and discernment of the lawmaking body in the particular instance. Rather we are bound to approach the question from the stand point of upholding the legislation as a valid enactment unless there is no reasonable ground upon which it can be sustained." Chotkowski v. State, 240 Conn. 246, 259, 690 A.2d 368 (1997).
"Legislation which grants to a limited class emoluments or privileges greater than those allowed to the public at large is, of course, not necessarily violative of the constitution. If such a grant serves a public purpose, the fact that it is so limited does not render it invalid." Warner v. Gabb, 139 Conn. 310, 313, 93 A.2d 487 (1952).
". . .[A] review of any act which is claimed to be unconstitutional [on the grounds that it violates the emolument clause] requires [the challenger] to demonstrate that `the sole objective of the general assembly is to grant personal gain or advantage to an individual.' State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862 (1952)." Kinney v. State, Superior Court, judicial district of New Haven, Docket No. CV 01-0456273 (Robaina, J., August 18, 2006) [ 41 Conn. L. Rptr. 856]. An enactment's validity "is contingent . . . upon its furthering a public purpose; if enacted with that end view, legislation can be sustained even though it may incidentally confer a direct benefit upon an individual or class." State ex rel. Higgins v. Civil Service Commission, supra at 106, 90 A.2d 862 (1952). The Connecticut Constitution Article First "does not necessarily prevent the General Assembly from dealing differently with different classes of persons. It may constitutionally do so (1) if there is a natural and substantial difference between those preferred by the legislation and all others; and (2) if that difference is logically related to the subject and object of the legislation." Id. at 108.
"Our Supreme Court has taken a broad view of the legislative goals that may constitute a public purpose . . . [A]n act serves a public purpose under Article first § 1, when it promotes the welfare of the state; or when the principal reason for the approach is to benefit the public." (Citations omitted. Internal quotation marks omitted.) Commissioner of Public Works v. Middletown, 53 Conn.App. 438, 450 (1999), 731 A.2d 749 (1999).
The first issue for the court to decide is whether the defendant has sustained its burden of proving that section 7-294aa does not serve a valid public purpose. Although in its brief, the defendant does not concede that the passage of section 7-294aa serves a valid public purpose, neither the evidence it presented nor the substance of its argument seriously disputes this.
In its Reply to Plaintiff's Trial Memorandum, the defendant accuses plaintiff's counsel of circular argument (p. 19 and 20), and maintains that the statute cannot serve a public purpose if it implicates contract rights. But, defense concedes that "if section 7-294aa serves a valid purpose related to the purpose of the legislation, as the plaintiff argues, then the Statute would not violate either Article First section 1 of the constitution of Connecticut or article one, section 10 of the constitution of the United States because of the valid public purpose." Defendant's Reply to the Plaintiff's Trial Memorandum, dated December 15, 2006 at P. 20. And, it concedes that ". . .a statute that encourages patriotism promotes the public welfare . . ." Defendant's Post-Trial Brief, dated December 1, 2006, p. 31.
Within the legislative history are clear references to the General Assembly's intention to encourage and support municipal and state police's patriotism, exhibited by a willingness to volunteer to serve our country overseas as civilians on peacekeeping operations. A "Patriot" is defined as "one who is devoted to and ready to support or defend his or her country." Oxford American Desk Dictionary and Thesaurus, Second Edition (2002). Patriotism, therefore, is the expression of one's devotion and support of one's country. Patriotism is a good value to have among government employees. Section 7-294aa encourages patriotism among government-employed police officers.
It has long been held by Connecticut Courts that fostering patriotism may serve a valid public purpose. See, e.g. Walsh v. Jenks, 135 Conn. 210, 62 A.2d 773 (1948); State ex rel. Higgins v. Civil Service Commission, supra; and Warner v. Gabb, supra at 314. "We are, therefore, committed to the proposition that a proper purpose may be found in the fostering of patriotism." State ex rel. Higgins v. Civil Service, supra at 107. Thus, this court concludes that section 7-294aa serves an important public purpose in that it encourages patriotism among government-employed police officers.
"If there is any reasonable ground upon which the validity of the act can be sustained, we must presume that the legislature intended to further that ground rather than that it acted upon some improper motive." State ex rel. Higgins v. Civil Service Commission, supra.
The second issue for this court to decide is whether the defendant has proven that the legislation unfairly differentiates among classes of persons. Even an act which serves a valid public purpose may be deemed unconstitutional if it improperly distinguishes among classes or groups of people. See, e.g. Warner v. Gabb, 139 Conn. at 315 (Legislation that distinguished between veterans who were employed by the city prior to their military service and veterans who were employed by the city after their military service was deemed "too nebulous to afford a reasonable basis for the difference in the treatment of them"). If, however, "there is a natural and substantial difference between those preferred and all others, and . . . if the difference is logically related to the subject and object of the legislation," then the act must be deemed constitutional. State ex rel. Higgins v. Civil Service, supra at 108.
The defendant offered evidence that established that while all police officers within the state must be certified by the Police Officers Standards and Training Organization, not all police officers in the state are employed by municipal or state government. There are a number of private entities which employ police officers, including but not limited to Amtrak Railroad, University of New Haven, Yale University, the Regional Water Authority. Trial Exhibit L. The defendant argues that there is no meaningful distinction between certified police officers and therefore, section 7-294aa impermissibly confers rights and privileges on municipal and state officers but not on privately employed police officers.
This court has already concluded that the purpose of the act serves a public purpose by encouraging patriotism among municipal and state police officers. The question presented by the defendant's challenge is whether it is constitutionally permissible for the General Assembly to encourage patriotism among municipal and state police officers, but not confer similar protections to police officers employed by private corporations. This court concludes that it is.
It is accepted that police officers, whether employed by municipal or state governments or by private entities, perform law enforcement and safety functions. But, unlike municipal and state police, police officers working for private entities are private employees, subject to private and not public employment contracts. The law subjects public servants and employees to duties and responsibilities, which may not be imposed upon private employees.
Notwithstanding that all police perform a public function, Connecticut courts have recognized that public service is a unique kind of service, requiring special duties and qualities. To that end, encouraging patriotism among public servants is a permissible function of legislation. "It is a most desirable thing for the welfare of a city to obtain for its classified service the highest types of available candidates." Id. at 109. Among the traits which make one highly qualified for public service is patriotism. Id.
To be sure, police officers generally perform the same functions whether they are employed by municipal or state government or private entities. Whereas, their jurisdiction may vary, their roles are similar. For this reason, if the statute had implicated the on-the-job duties of police officers, the defendant's argument might be meritorious.
Section 7-294aa does not relate to police officer's on-the-job duties or functions. Rather, it governs what the police officer's employer may and may not do when that officer exercises his or her option to patriotically serve our country as a civilian on a peacekeeping mission. Thus, through section 7-294aa, the legislature is limiting government-employers' ability to restrain the patriotic impulses of their police officer-employees. Similarly, in C.G.S. sections 5-255 and 7-462, the legislature mandated that state employees and political division employees be reinstated in their jobs after they have left to serve in the military. These statutory provisions are constitutional and permissibly apply only to state and political employees and not to private employees. Likewise, it is proper for the General Assembly to treat government-employed police officers differently pursuant to 7-294aa than privately-employed police officers.
In our society there are distinctions between governmental employees and private employees even when governmental and private employees perform substantially similar functions. Such is the case among police officers. Such is the case among attorneys, some of whom are employed by state or local government and some of whom are employed by private firms, corporations or companies. Such is the case among teachers, some of whom work in public school systems and some of whom work in private or parochial schools. Each of these different professions has its own certification licensing or employment requirements. Each of these different professions requires similar duties from those within it. Yet, there are distinctions between public and private entities as employers and those distinctions, governed by employment contracts, change the nature of the relationship between employer and employee.
Section 7-294aa relates exclusively to the employment relationship between the police officer and his/her employer. Therefore, the distinction between municipal and state police officers and others is reasonable; and is reasonably related to the purpose and objective of the statute.
The defendant has failed to meet its burden of establishing that section 7-294aa is unconstitutional.
CONCLUSION
Given the grand and noble objectives of section 7-294aa, it is, indeed unfortunate that this matter has required judicial intervention. Each party had and has a well-established and well-founded right to litigate its position in court. Yet, it appears to this court that the General Assembly intended to obviate the need for such contentious disputes by enacting clear protections for municipal and state police officers who left their jobs, of their own free will, to serve on peacekeeping missions overseas, regardless of whether their employers desired or agreed to their departure.
For all of the foregoing reasons, this court grants the plaintiff's request for a writ of mandamus and orders that the defendant reinstate him to the position of East Haven Police Officer.