Opinion
No. 04 0409828
April 29, 2004
MEMORANDUM OF DECISION
The plaintiffs are applicants for the entry-level position of firefighter in the city of Bridgeport. The defendants are the city of Bridgeport, its civil service commission (hereafter, "Commission") and its fire department. The plaintiffs completed their applications and, therefore, are eligible for hire as firefighters. Based on their performance on a test prescribed by the city, the plaintiffs have been ranked on a list from which firefighter positions will be filled. The plaintiffs have brought this action for declaratory relief to determine the legality of the current rank order list and for injunctive relief to nullify the list and order a new examination.
On May 31, 2002, the Commission issued a public notice informing interested persons that it would hold "an open competitive examination" for the position of firefighter on September 14, 2002. Under "Subjects of Examination," the notice stated: "Written examination, qualifying; oral examination, 100%. Passing candidates on written examination will participate in the physical agility examination; those candidates who pass the physical agility examination will participate in the oral examination. Scores from only the oral component will be used to rank order applicants for selection."
Distilled to its essence, the plaintiffs' complaint contains two distinct claims. First, the plaintiffs claim that the open competitive examination for the position of firefighter is illegal, and thus, invalid. The plaintiffs allege that the oral examination violates § 211(a) of the City Charter, which provides with respect to such tests that "the identity of any applicant [shall not] be disclosed to the examiner or to the one correcting the applicant's test" because the examiners "clearly and inherently" knew the identity of the candidates they interviewed. Due to the interview nature of the oral examination, the plaintiffs maintain that the "possibility of illegal discrimination is patently obvious in such circumstances" because "factors such as the race, color, gender, national origin and age [of the candidates], among others, are known to the examiner."
No claim of actual discrimination is alleged, nor was such a claim made or evidence adduced at the hearing before the court.
The plaintiffs further allege that the testing process is "arbitrary, capricious and unreasonable" because a candidate's rank is based solely on his or her oral examination grade. The plaintiffs state that "patently discriminatory outcomes occurred" as a result of the flawed testing procedure because the person with the highest rank order, Samuel Muhammed, had barely passed the written examination, while two of the plaintiffs, James F. Demarest, Jr. and Zygmunt P. Mysliwiec, both received low rank orders, even though they received two of the highest written test scores. As further support for their assertion, the plaintiffs cite to the fact that some candidates were permitted to take the oral examination before taking the physical agility test contrary to the procedure specified in the public notice, and that two individuals listed on the rank order list either failed the physical agility test, or failed to appear for that test. The plaintiffs also contend that several of them had been notified that they had failed the physical agility test even though they had actually passed.
Second, the plaintiffs claim that the defendants have not fully complied with an information request they made for documents pertaining to the examination in derogation of their rights under the Freedom of Information Act, General Statutes § 1-200 et seq.
The matter came before the court on an order to show cause why a preliminary injunction should not issue restraining the Commission from hiring candidates pursuant to the existing rank order list. At the hearing on their request for a preliminary injunction, the plaintiffs focused their argument on the claim that the defendants violated the requirement of § 211 of the Charter of the City of Bridgeport, stating in relevant part that "the identity of any applicant [not] be disclosed to the examiner or to the one correcting the applicant's test," by basing the rank order of candidates on the five questions that comprised the oral examination. Furthermore, the plaintiffs contended that the nature, content and scoring of the examination violated the Charter prescribing that "[n]o questions which are misleading or unfair or in the nature of catch questions shall be asked . . ."
I.
On the first day of the hearing on the plaintiffs' request for a preliminary injunction, the defendants moved to dismiss the action for lack of subject matter jurisdiction based on the plaintiffs' failure to exhaust the administrative remedies available to them. The defendants maintained that the plaintiffs had failed to first seek redress for their grievances with the Commission as directed by the City Charter. As for the plaintiffs' claim that the defendants violated the Freedom of Information Act, the defendants argue that General Statutes § 1-206 directs that such complaints must be presented to the Freedom of Information Commission.
The plaintiffs countered that the charter only provides for appeals to the Commission concerning individual test scores and that "the main point of contention in this case in plaintiffs' contention to [the] legality of the testing practice, as it was administered, not individual scores." (Plaintiffs' Objections and Opposition to Defendants' Motion to Dismiss at 3.) They orally argued that "[b]asically the plaintiffs would like the court to determine whether ranking of candidates based solely on the outcome of an oral examination is prohibited by the language of Section 211 of the City Charter . . . and whether having done so is a violation of the fundamental tenet of civil service law that is generally described as requiring a `proper competitive examination . . .'" The plaintiffs also argued that even if they have failed to exhaust their administrative remedies, the court may still entertain their claims for declaratory and injunctive relief. Finally, the plaintiffs adduced evidence that the named, plaintiff, John Bolton, had appealed to the Commission on the claim that his oral examination had been improperly graded.
The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted . . . Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief . . .
If the available administrative procedure . . . provide[s] the plaintiffs with a mechanism for attaining the remedy that they seek . . . they must exhaust that remedy . . . The plaintiff's preference for a particular remedy does not determine the adequacy of that remedy. [A]n administrative remedy, in order to be adequate, need not comport with the [plaintiffs'] opinion of `what a perfect remedy would be.
River Rend Associates, Inc. v. Simsbury Water Pollution Control Authority, 262 Conn. 84, 100-01, 809 A.2d 492 (2002) (citations omitted; internal quotation marks omitted).
The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review . . . In addition, the administrative agency may be able to resolve the issues, making judicial review unnecessary. As the United States Supreme Court has stated, [a] complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene.
Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 12-13, 756 A.2d 262 (2000) (citations omitted; internal quotation marks omitted), overruled in part on other grounds, Waterbury v. Washington, 260 Conn. 506, 800 A.2d 1102 (2002), and Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 836 A.2d 414 (2003).
"[T]he exhaustion doctrine implicates subject mater jurisdiction . . ." Id., 12. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86, 815 A.2d 1188 (2003) (citations omitted; internal quotation marks omitted). "[B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff[s'] claim . . ." Fish Unlimited v. Northeast Utilities Service Co., supra, 254 Conn. 12.
A court lacks jurisdiction over a claim that an oral examination failed to comply with municipal civil service rules specifying examination procedures where those rules provide for an appeal of such claims to local officials. Lopiano v. Stamford, 22 Conn. App. 591, 595-96, 577 A.2d 1135 (1990). In Lopiano, the plaintiff, a police officer, sought promotion to the post of police lieutenant. Id., 592; On the basis of his score on a written examination, he received an interview by the city police commission, which had the sole power of promotion under the city charter. Id. The commission selected another candidate for the position. Id., 593. The plaintiff brought an action claiming that he had been subject to an oral examination that failed to comply with a city rule concerning examination procedures. Id., 594. He sought relief declaring the promotion of the successful candidate illegal and a writ of mandamus ordering the defendants to administer a proper examination. Id., 593. The trial court determined, and the appellate court agreed, that the plaintiff failed to exhaust his administrative remedies under a city civil service rule providing for appeals of such matters to the personnel director. Id., 595-96. Therefore, the court lacked jurisdiction over the plaintiff's action. Id.
Here, with the exception of the plaintiffs' claim under the Freedom of Information Act, the question of whether the plaintiffs failed to exhaust their administrative remedies "is to be determined by the express provisions of Bridgeport's city charter. It is well established that a city 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 . . . It follows that agents of a city, including its commissions, have no source of authority, beyond the charter." Lombardi v. Bridgeport, 194 Conn. 601, 604, 483 A.2d 1092 (1984) (citations omitted; internal quotation marks omitted).
A brief overview of the relevant charter provisions, therefore, is appropriate. Section 204 of the Bridgeport City Charter provides for the appointment of a personnel director to carry out the civil service provisions of the charter and to "direct and supervise the administrative work of the personnel bureau [sic] and perform such other functions as may be required of him/her by the civil service commission." Section 207 of the Charter enumerates several powers and duties of the personnel director, including the duty to "provide for, formulate and hold competitive tests to determine the relative qualifications of persons who seek employment or promotion to any class of position and as a result thereof establish employment and reemployment lists for the various classes of positions . . ." Section 211 of the Charter specifically addresses the subject of tests. Section 211(a) provides in relevant part:
Elsewhere, the Charter refers to a personnel "department," not "bureau." See City of Bridgeport Charter §§ 206, 207.
Section 204 of the Charter of the City of Bridgeport provides in its entirety:
(a) The civil service commission shall appoint a personnel director and such examiners, investigators, clerks and other assistants as may be necessary to carry out the provisions of this act. Such persons, including the personnel director, shall be subject to the civil service laws. The personnel director shall be a person thoroughly in sympathy with the application of merit and sound business principles in the administration of personnel; shall be thoroughly familiar with the principles and methods of personnel administration and skilled therein and shall have had at least three years of successful experience as director or assistant director in the administration of an employment system involving at least five hundred positions or employees. He/she shall direct and supervise the administrative work of the personnel bureau and perform such other functions as may be required of him/her by the civil service commission.
(b) The position of Personnel director of the city of Bridgeport, established under the provisions of the charter is included in the competitive division of the classified service created under said act as amended.
Section 207 of the Charter of the City of Bridgeport provides in its entirety:
The personnel director shall: (1) attend the regular and special meetings of the civil service commission, act as its secretary and record its official actions; (2) supervise and direct the work of the employees of the personnel department; (3) prepare and recommend rules and regulations for the administration of this act, administer such rules and regulations and propose amendments thereto; (4) establish and maintain in card or other suitable form a roster of officers and employees in the service of the city; (5) ascertain and record the duties and responsibilities as pertaining to all positions in the classified service, except teachers, and classify such positions in the manner hereinafter provided. All promotion tests for teachers shall be prepared and corrected under the direction of the superintendent of schools, as provided in section two hundred and eleven; (6) provide for, formulate and hold competitive tests to determine the relative qualifications of persons who seek employment or promotion to any class of position and as a result thereof establish employment and re-employment lists for the various classes of positions; (7) and, upon written request, give the name of the person highest on the re-employment or employment list for the class to the civil service commission, who shall certify the name to the appointing authority; (8) establish records of performance and a system of service ratings to be used in determining increases and decreases in salaries, in promotions, in determining the order of layoffs and re-employment and for other purposes, provided all ratings of teachers shall be made under the direction of the superintendent of schools; (9) keep such records as may be necessary for the proper administration of this chapter; (10) provide a system for checking payrolls, estimates and accounts for payment of salaries to employees of the classified service, as set up by individual departments and paid through the comptroller's office, to enable the commission upon satisfactory evidence thereof to establish the fact for its own records that the persons whose names appear thereon have been regularly employed in the performance of the duties indicate at the compensation rates, and for the period for which compensation is claimed, before payment be lawfully made to such employees; (11) make investigations concerning the administration and effect of the charter and rules made thereunder and report his findings and recommendations to the commission, and (12) make an annual report to the civil service commission.
Upon appointment to the position, the appointee shall hold the position for a period of not less than three months and not more than six months and shall be on probation for such time; the personnel director, the executive head of the department and a majority of the commissioners shall determine the permanent appointment.
The personnel director shall, from time to time, as conditions warrant, hold tests for the purpose of establishing employment lists for the various positions in the competition division of the classified service. Such tests shall be public, competitive and open to all persons who may be lawfully appointed . . . All tests shall be practical, and shall consist only of subjects which will fairly determine the capacity of the persons examined to perform the duties of the position to which appointment or promotion is to be made, and may include tests of physical fitness or of manual skill. No credits shall be allowed for service rendered under a temporary appointment. No question in any test shall relate to religious or political opinions or affiliations. No questions which are misleading or unfair or in the nature of catch questions shall be asked, nor shall the identity of any applicant be disclosed to the examiner or to the one correcting the applicant's test . . . The markings of all test [sic] shall be completed, the resulting employment list and the answers to all questions in competitive written examinations posted as soon as possible thereafter and not later than ninety days from the date of the test . . . An error in the marking of any test, other than the existence of a difference of opinion, if called to the attention of the commission within one month after the posting of an employment list resulting from such test shall be corrected by it . . ."
Section of the Charter of the City of Bridgeport provides in its entirety:
(a) The personnel director shall, from time to time, as conditions warrant, hold tests for the purpose of establishing employment lists for the various positions in the competitive division of the classified service. Such tests shall be public, competitive and open to all persons who may be lawfully appointed to any position within the class for which such examinations are held with limitations specified in the rules of the commission as to residence, age, health, habits, moral character and prerequisite qualifications to perform the duties of such position, provided applicants shall be citizens of the United States. Promotion tests shall be public, competitive and free only to all persons examined and appointed under or holding an office or position by virtue of section two hundred and eight of this act and who have held a position for one year or more in a class or rank previously declared by the commission to involve the performance of duties which tend to fit the incumbent for the performance of duty in the class for which the promotion is held. Efficiency and seniority in service shall be considered in connection with test for promotion. The personnel director shall hold promotion tests whenever there shall be an opening in a superior class to be filled. The examination shall be open to those in inferior rank in the same class the duties of which directly tend to fit the incumbents thereof for the performance of the duties of the superior grade. A person who has served less than one year in a lower grade shall not be eligible for a promotion test. If fewer than two persons submit themselves for a promotion test, or if, after such test has been held, all applicants shall fail to attain a general average of not less than the minimum standard fixed by the rules of the commission, said director shall forthwith hold an original entrance test and certify from the employment list resulting therefrom.
All tests shall be practical, and shall consist only of subjects which will fairly determine the capacity of the persons examined to perform the duties of the position to which appointment or promotion is to be made, and may include tests of physical fitness or of manual skill. No credits shall be allowed for service rendered under a temporary appointment. No question in any test shall relate to religious or political opinions or affiliations. No questions which are misleading or unfair or in the nature of catch questions shall be asked, nor shall the identity of any applicant be disclosed to the examiner or to the one correcting the applicant's test. As many tests shall be held as necessary to provide eligibles for each class of positions and to meet all requisitions and to fill all positions held by temporary appointees. From the return and report of the examiners or from test by him, the personnel director shall prepare list of eligibles for each grade of the persons who shall attain such minimum mark as may be fixed for the various parts of such test, and whose general average standing upon the test for such position is not less than the minimum fixed by the rules of the commission, and who may lawfully be appointed. Such persons shall rank upon that list in the order of their relative excellency as determined by the tests without reference to priority of time of tests. The markings of all tests shall be completed, the resulting employment list and the answers to all questions in competitive written examinations posted as soon as possible thereafter and not later than ninety days from the date of the test. The commission shall cancel such portion of any list as has been in force for more than two years. The markings and test papers of each candidate shall be open to his inspection. The markings and test papers of all persons upon any list of eligibles may be open to public inspection in the discretion of the civil service commission. An error in the marking of any test, other than the existence of a difference of opinion, if called to the attention of the commission within one month after the posting of an employment list resulting from such test shall be corrected by it. No certification of appointment shall be made for one month after posting the eligible list. Notice of the time, place and general scope of each test and of the duties, pay and experience advantageous or requisite for all positions in the grade for which the test is to be held shall be given by the personnel director. Such notice shall be by publication, at least once a week for two weeks preceding the test in a newspaper printed in the English language and having a circulation in the city of Bridgeport of more than five thousand copies of each edition. Such further notice shall be given as the commission may prescribe. All tests for promotions in the teaching service shall be prepared and corrected under the direction of the superintendent of schools, with the approval of the board of education, and he shall, in like manner, determine the prerequisite qualifications for admission to such tests, all in the spirit of this act and solely on the basis of merit. The administration and control of such tests and the results thereof shall, in all other respects, be subject to all other terms and provisions of this act.
(b) 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 classes 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.
(c) When an employment list for any class in the noncompetitive division of the classified service expires, the personnel director, within one hundred and twenty days of the date of such employment list expired, shall hold examinations for the purpose of establishing an employment list for such class. CT Page 6681
(d) Positions in the noncompetitive division of the classified service shall be filled by those persons who, upon proper noncompetitive examination, are certified by the personnel director as being qualified to discharge the duties of such positions.
The parties do not dispute that the position of firefighter is within the competitive division of the classified service. City of Bridgeport Charter §§ 205(a) and 205.1.
Rule 206 of the Charter prescribes the powers and duties of the Commission. Section 206(a)(4) provides that the Commission shall "hear and determine complaints or appeals respecting the administrative work of the personnel department . . ." The defendants premise their argument that the plaintiffs have failed to exhaust their administrative remedies on this provision.
Section 206 of the Charter of the City of Bridgeport provides in its entirety:
(a) The members of the civil service commission shall hold regular meetings at least once each month and may hold additional meetings as may be required in the proper discharge of their duties. Said commission shall: (1) after public hearing, adopt and amend rules and regulations for the administration of the chapter which shall have the force and effect of law, upon a majority vote of the city council and approval by the mayor; (2) after public hearing, adopt, modify or reject such classification and compensation plans for employees in the classified service, except teachers, together with rules for their administration, as may be recommended by the personnel director after thorough survey of the personnel and departmental organizations included in such plan or plans, which shall become effective after a majority vote of the city council and approval of the mayor. The classification, rating, assignment, transfer and compensation of teachers shall remain under the control of the board of education, anything contained in this chapter to the contrary notwithstanding; (3) make investigations, either on petition of a citizen or on its own motion, concerning the enforcement and effect of this chapter, require observance of its provisions and the rules and regulations made thereunder; (4) hear and determine complaints or appeals respecting the administrative work of the personnel department, appeals upon the allocations of positions or concerning promotions, the rejection of an applicant for admission to an examination and such other matters as may be referred to the commission by the personnel director; (5) make such investigations as may be requested by the governor or the legislature and report, thereon. CT Page 6682
(b) As soon as practicable after the passage of this act (1957, S.A. No. 85) the personnel director shall make or cause to be made an investigation of the duties and responsibilities of all portions in the classified service in order to aid the commission in determining the proper class or classes in the classification plan to which such positions should be allocated or reallocated and to report his findings in writing to the commission upon consideration of the facts made available to it through the report of the director and all other sources available to it, the commission shall forthwith allocate or reallocate on the basis of merit all such positions to the appropriate existing class or classes in the classification plan or it shall add such new class or classes to the classification plan as it may deem proper in accordance with the formula hereinafter described, and it shall allocate or reallocate on the basis of merit such positions as it may deem proper in accord with said formula to said next class or classes. All permanent positions in the classified service in existence on April 18, 1957 shall be allocated or reallocated by the commission in accordance with the provisions of this act within one year of its adoption.
(c) the personnel director in his report called for in subsection (b) of this Section and the commission in determining the classifications and allocations on the basis of merit, as called for in said subsection, shall use only the following formula: Positions which are sufficiently similar in respect to their duties and responsibilities, (1) that the same title may be used with clarity to design each position allocated to the class, (2) that the same requirements as to experience, education, capacity, knowledge, ability and other qualifications should be required of the incumbents, (3) that the same tests of fitness may be used to choose qualified employees, and (4) that the same salary range can be applied with equity under the same or substantially the same employment conditions, shall be allocated to the same class. A single position essentially different from all other positions in characteristics enumerated above shall be considered as a class in itself and allocated to same.
(d) Whenever the appointing authority of any department desires to establish a new permanent position in the classified service, the personnel director shall make or cause to be made an investigation of the need of such position and report his findings to the commission. If upon consideration of the facts the commission determines that the work of the department cannot be properly and effectively carried on without the position, it shall classify and allocate the new position to the proper class after the position has been established by the city council. If the commission determines that the position is not necessary and that the work of the department can be properly and effectively carried on without the position, it shall promptly transmit such determination to the city council. Such determination by the commission shall be final unless the city council, within two months of the date of such disapproving action by the commission, shall by its duly enacted resolution approve the establishment of such position. In such event the final action of the city council shall be promptly transmitted to the commission and the commission shall allocate the position or positions therein approved to its class in the classification plan. All classifications and allocations made pursuant to this subsection shall be based on the same procedure and formula called for in subsections (a) and (b) of this section.
In their brief accompanying their motion to dismiss, the defendants also relied on a provision of section 206 of the Charter that authorized the Commission to "hear and determine . . . appeals upon the allocations of positions or concerning promotions . . ." At the hearing before the court, the defendants abandoned any reliance on this provision.
"When a charter is construed, the rules of statutory construction generally apply . . . Common sense must be used in construing a statute." Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 9, 544 A.2d 152 (1988) (citations omitted, internal quotation marks omitted). "The process of statutory interpretation involves a reasoned search for the intention of the legislature." Waterbury v. Washington, 260 Conn. 506, 530, 800 A.2d 1102 (2002). "When construing a [city] charter, the court must determine the intent of the legislative body that promulgated the rules . . . To determine the intent of the charter, [t]he enactment must be examined in its entirety and its parts reconciled and made operative so far as possible . . . Intent is to be ascertained from the language used, if it is plain and unambiguous; or, if it is not, by considering the legislation in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances." Alexander v. Retirement Board, 57 Conn. App. 751, 759, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000) (internal quotation marks omitted).
A.
The defendants' argument that the plaintiffs failed to exhaust their administrative remedy before the Commission turns largely on whether the claims in the plaintiffs' complaint concern "the administrative work of the personnel department." City of Bridgeport Charter § 206(a)(4). The Bridgeport City Charter neither defines nor gives much guidance as to what constitutes "administrative work." In the absence of a direct definition the "[w]ords in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended . . . Where a statute does not define a term it is appropriate to look to the common understanding expressed in the law and in dictionaries." State v. Vickers, 260 Conn. 219, 224, 796 A.2d 502 (2002) (internal quotation marks omitted).
The Supreme Court of Connecticut has stated that
[t]he term "administrative" has generally no generally accepted plain meaning, but is commonly used to refer to a wide range of activities extending from the day to day management of an organization or an estate's internal housekeeping functions to the conduct of the entire official business of the government . . . Nor is there a sharp demarcation . . . between activities which are adjudicatory and those which are administrative . . . [The court] must therefore look beyond the face of the statute to ascertain the proper meaning of "administrative functions." Rules Committee of the Superior Court v. FOIC, 192 Conn. 234, 239, 472 A.2d 9 (1984) (citations omitted) (questioning scope of administrative power of Freedom of Information Commission to extent it applied to Freedom of Information Act).
In Rules Committee, supra, 192 Conn. 242-43, the Supreme Court "confine[d] the term `administrative functions,' . . . to matters relating to the management of the internal institutional machinery of the system." This interpretation, however, was made against the backdrop of a constitutional challenge involving the separation of powers. Id., 238-40. No such challenge is present here. Thus, this definition is not determinative to the question of whether the plaintiffs had administrative remedies available to them.
Additionally, this and other jurisdictions have defined the term by differentiating it from the work or power of the legislature. See, e.g., Dempsey v. Tynan, 143 Conn. 202, 205, 120 A.2d 700 (1956) (determining discretion of Commissioner of Motor Vehicles only as broad as expressly granted or intended by legislature); State ex rel. Tomasic v. Unified Gov., Wyandotte County, 264 Kan. 293, 303, 955 P.2d 1136 (1998) (defining administrative power as "the power to administer or enforce a law, as opposed to the legislative power to make a law"); Kelley v. John, 162 Neb. 319, 321, 75 N.W.2d 713 (1956); see also, 2 Am.Jur.2d, Administrative Law § 268 (2003) (noting that an administrative agency cannot enlarge the powers conferred by the legislature). These courts have determined the scope of an administrative authority's power by analyzing the language and the purpose of the legislative enactment. See also Black's Law Dictionary (6th Ed. 1991) (defining "administrative acts" as "those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body"); Ballentine's Law Dictionary (3d Ed. 1969) (defining "administrative power" as "[t]he power of carrying laws into effect, giving them practical application to current affairs by way of management, oversight, investigation, regulation, and control, in accordance with and in execution of the principles prescribed by the lawmaker").
Here, several relevant provisions of the Bridgeport City Charter provide insight into whether the plaintiffs' claims involve the administrative work of the personnel department. Section 207(6) authorizes the personnel director to "provide for, formulate and hold competitive tests to determine qualifications of persons who seek employment . . . to any class of position." This power is qualified by § 211.1 that charges the civil service commission and the personnel director with the duty "to take affirmative steps to insure that examinations conducted under the provisions of this chapter: (1) are non-discriminatory; (2) are based on valid indicators of whether an applicant possesses the skills and abilities required for the job in question; and (3) comply with all state and federal laws and regulations concerning examinations for public employment." In promulgating competitive examinations, the personnel department carries out the legislative policies and purposes expressed by these and other sections of the charter.
The considerable discretion afforded to the civil service commission and the personnel director in discharging these duties does not negate the administrative characteristics of these duties. The Connecticut Supreme Court has recognized that "[t]he duties of an administrative agency . . . necessarily include the right to exercise discretion, and the essence of such discretionary power is that the agency or commission may choose which of several permissive courses will be followed. In exercising that discretion, the factors to be taken into consideration are not mechanical or self-defining standards, and, thus, wide areas of judgment are implied . . . Such discretion is the lifeblood of the administrative process." Riley v. State Employees' Retirement Commission, 178 Conn. 438, 442, 423 A.2d 87 (1979) (citations omitted; internal quotation marks omitted); see also Cimchowski v. Hartford Public Schools, 261 Conn. 287, 303, 802 A.2d 800 (2002); Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 393 n. 29, 627 A.2d 1296 (1993), rev'd on other grounds, 236 Conn. 722, 675 A.2d 430 (1996); CT Page 6669 Connecticut Light Power Co. v. DPUC, 219 Conn. 51, 80, 591 A.2d 1231 (1991); Red Hill Coalition v. Conservation Commission, 212 Conn. 710, 722, 563 A.2d 1339 (1989). Notably, other jurisdictions have acknowledged that the discretion exercised by an administrative department in noticing, creating and administrating tests does not render the work of the department any less administrative in nature. See City of Wichita v. Fitzgerald, 22 Kan. App. 2d 428, 430-31, 916 P.2d 1301 (1996); Johnson v. City of Alamogordo, 121 N.M. 232, 236, 910 P.2d 308 (1996).
Finally, an examination of the duties of the personnel director as contained in § 207 of the Charter reflects that relatively little would be left of the Commission's appellate jurisdiction if appeals respecting the preparation, administration and grading of civil service tests were excluded from that jurisdiction. Most of those other functions are of such a nature that would rarely generate an appeal. "[E]lementary rules of statutory construction require the presumption that the legislature did not intend to enact superfluous legislation." State v. State Employees' Review Board, 239 Conn. 638, 654, 687 A.2d 134 (1997). In his testimony before the court, the personnel director stated that a major portion of the work of the personnel department involved civil service testing.
See note 4, supra.
For these reasons, the court holds that the plaintiff's claims all involve the administrative work of the personnel department.
B.
The plaintiffs do not allege or otherwise articulate any recognized exceptions to the exhaustion doctrine. See Johnson v. Statewide Grievance Committee, 248 Conn. 87, 103, 726 A.2d 1154 (1999) ("Despite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine . . . We have recognized such exceptions, however, only infrequently and only for narrowly defined purposes"). The plaintiffs have maintained, however, during oral arguments, that the charter did not give them "fair warning" that they could not invoke the jurisdiction of this court prior to bringing their claims before the Commission. Although the plaintiffs did not couch this argument in constitutional terms, it is best understood and analyzed as a due process concern.
"Due process demands that a statute be sufficiently clear and precise to afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited." Gunther v. Dubno, 195 Conn. 284, 297, 487 A.2d 1080 (1985) (internal quotation marks omitted). "[The] notion of fair warning is intended to ensure that vague laws do not become a trap for the innocent." Stephen Reney Memorial Fund v. Old Saybrook, 4 Conn. App. 111, 114, 492 A.2d 533 (1985). "It is settled that parties challenging the constitutionality of a statutory enactment have the burden of showing its invalidity beyond a reasonable doubt . . . A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity." Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982). "In order to challenge successfully, on due process grounds, the vagueness of the statute as applied to particular facts, a party must prove that the policies advanced by the void for vagueness doctrine were violated in this case. Specifically, a party must show that (1) the statute does not provide fair warning that it applies to the conduct at issue, or (2) that he was the victim of arbitrary enforcement practices." Packer v. Board of Education, 246 Conn. 89, 106-07, 717 A.2d 117 (1998). The plaintiffs do not claim that they were victims of arbitrary enforcement practices.
"Civil statutes . . . may survive a vagueness challenge by a lesser degree of specificity than in criminal statutes." Keogh v. Bridgeport, supra, 187 Conn. 60. "A statute is not void for vagueness . . . simply because it may be open to two possible constructions . . ." McKinney v. Coventry, 176 Conn. 613, 619, 410 A.2d 453 (1979). "If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties." Stephen Reney Memorial Fund v. Old Saybrook, supra, 4 Conn. App. 114-15 (internal quotation marks omitted). "The lack of precision in a statute, in and of itself, however, is not enough to violate due process . . ." Jack v. Scanlon, 4 Conn. App. 451, 457, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985). "A statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions nor is it necessary that the statute list the exact conduct prohibited." Packer v. Board of Education, supra, 246 Conn. 101; see In re Shane P., 58 Conn. App. 244, 254, 754 A.2d 169 (2000). "Statutes challenged on the basis that they lack adequate standards are construed with reference to judicial opinions involving the statute, the common law, legal dictionaries or treatises." Jack v. Scanlon, supra, 4 Conn. App. 457 (internal quotation marks omitted).
The court concludes that a person of ordinary intelligence, upon being apprised of the language of the charter provisions regarding civil service as a whole, together with the dictionary definition of "administrative" and common-law cases defining that word, would know with a reasonable degree of certainty that the plaintiffs' claims involved the administrative work of the civil service commission and the personnel director. Therefore, the charter gave the plaintiffs fair warning of their right to appeal to the Commission.
C.
The plaintiffs' claim that the defendants violated the Freedom of Information Act, General Statutes § 1-200 et seq., also suffers from the plaintiffs' failure to exhaust the administrative remedy available to them. On January 22, 2004, the plaintiffs requested that the personnel director produce certain documents pertaining to the civil service examination for firefighters. By letter dated January 27, 2004, the personnel director disclosed certain information, but stated that many of the documents requested were exempt from the disclosure requirement under the Freedom of Information Act, General Statutes § 1-210(b)(6).
General Statutes § 1-210(a) provides in part: "Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212." General Statutes § 1-206(b)(1) provides: "Any person denied the right to inspect or copy records under section 1-210 . . . or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial . . ." The plaintiffs did not appeal the denial of their request for documents to the Freedom of Information Commission. "Because the plaintiffs did not first appeal the alleged violation of the Freedom of Information Act to the Freedom of Information Commission, this court does not have jurisdiction to entertain this issue." Stafford Higgins Industries, Inc. v. City of Norwalk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 94 317449 (March 10, 1997) ( 18 Conn. L. Rptr. 605), aff'd in part on other grounds, rev'd in part on other grounds, 245 Conn. 551, 715 A.2d 46 (1998); accord, O'Dea v. Environmental Protection Board, Superior Court, judicial district of Stamford, Docket No. CV 99 0174892 (May 3, 2001, Mintz, J.).
D.
The plaintiffs argue that even if they failed to exhaust their administrative remedy before the Commission, this court may nonetheless entertain their claim for declaratory and injunctive relief. Such a claim was raised and rejected by the Supreme Court in River Bend Associates, Inc. v. Simsbury Water Pollution Control Authority, supra, 262 Conn. 102-06. There the court stated:
The plaintiffs claim that Practice Book § 17-55(3) vests the trial court with the discretion to allow a declaratory action to proceed despite the existence of alternative procedures. This conclusion, however, if allowed to stand in cases where an adequate administrative remedy exists, would contravene our well established precedent regarding the exhaustion doctrine and subject matter jurisdiction . . .
We have recognized, however, certain limited exceptions to the exhaustion requirement. Such exceptions include where the available relief is inadequate or futile . . . or where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed . . .
Practice Book § 17-55(3) is not a viable exception to the exhaustion doctrine. Practice Book § 17-55 provides that "[a] declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." General Statutes § 51-14(a), however, provides in relevant part that the rules of practice "shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts . . ." Consistent with § 51-14(a), we have stated that [t]he subject matter jurisdiction of this court is defined by statute . . . Provisions of the Practice Book cannot confer jurisdiction on this court . . . Thus, Practice Book § 17-55(3) does not confer subject matter jurisdiction on the court . . . Practice Book § 17-55(3) [is] a rule that merely establishes a test to determine the availability of declaratory relief.
We have acknowledged, however, that certain statutes give the Superior Court subject matter jurisdiction to render declaratory judgments. For example, General Statutes § 52-29(a) provides in relevant part that "[t]he Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed . . ." Nevertheless, § 52-29, granting declaratory judgment jurisdiction to the Superior Court, does not qualify as the type of separate statutory authorization . . . that allows for a complete bypassing of an administrative agency with undeniable jurisdiction over the subject matter . . .
The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions. To allow a party seeking a declaratory judgment to bypass the entire process under certain circumstances would be to interject an unnecessary and potentially confusing element into an otherwise well-defined area of the law . . .
Finally, we have acknowledged that certain statutory schemes do not embody the exhaustion doctrine because the statutes clearly express the legislative intent to bypass exhaustion requirements. For example, in Waterbury v. Washington, supra, 260 Conn. 530, we stated that "the exhaustion doctrine is based on a judicial determination of a legislative intent that in certain cases the courts do not have initial subject matter jurisdiction because the legislature has committed the initial resolution of the matters in question to an administrative agency. Therefore, this doctrine does not apply when the legislature determines, by appropriate legislation, that a court may exercise subject matter jurisdiction despite the fact that there also may be administrative procedures available that would, absent such legislation, normally deprive the court of jurisdiction."
The facts in Waterbury are sharply distinguishable from the facts in the case at hand In Waterbury, we determined that exhaustion was not required because a very specific provision of the Connecticut Environmental Protection Act; General Statutes § 22a-14 et seq.; could not be reconciled with the exhaustion doctrine, and the provision clearly expressed the legislative intent to bypass exhaustion requirements . . .
Thus, our case law makes clear that court rules, such as Practice Book § 17-55(3), and broad statutory grants of jurisdiction, such as § 52-29, are not intended to circumvent the well established principles of exhaustion. To bypass the requirement of exhaustion and confer upon the courts subject matter jurisdiction where there otherwise would be no jurisdiction, a statute must exist that expresses the legislature's intent to bypass exhaustion requirements. In the case at hand, the plaintiffs have not set forth such a statute.
Id., 102-06 (citations omitted; internal quotation marks omitted); see also, Lopiano v. Stamford, supra, 22 Conn. App. 591.
II
As observed supra, the plaintiff Bolton did appeal, albeit unsuccessfully, to the Commission. However, his appeal was limited to the claim that his oral examination had been improperly graded. Specifically, he claimed that the examiners did not accurately record the answers he had given in response to the questions asked. In seeking judicial review of the Commission's decision, he is limited to that claim. "A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the board." Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992), on remand, 34 Conn. App. 343, 641 A.2d 422 (1994); see Tomlinson v. Board of Education, 226 Conn. 704, 730-32, 629 A.2d 333 (1993); 2 Am.Jur.2d, Administrative Law § 507 (1994); 73A C.J.S., Public Administrative Law and Procedure § 191 (1983); 2 K. Davis R. Pierce, Administrative Law Treatise (3d Ed. 1996), § 15.8. Moreover, even construing the complaint "broadly and realistically, rather than narrowly and technically"; Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997); it fails to fairly allege the claim that Bolton presented to the Commission.
During the hearing on the plaintiffs' application for temporary injunctive relief, Bolton failed to prove that his oral examination was improperly graded. In fact, Bolton merely alleged that he did not understand all of the questions asked by the examiners.
Except as to the plaintiff Bolton the plaintiffs' complaint is dismissed. As to the plaintiff Bolton, treating the motion to dismiss as a motion to strike; McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 527, 590 A.2d 438 (1991); Commissioner v. Lake Phipps Land Owners Corporation, 3 Conn. App. 100, 102 n. 2, 485 A.2d 580 (1985); cf. Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 497-502; the motion is granted and the application for temporary injunctive relief is denied.
"A pleading that is legally insufficient on its face, but which would establish a cause of action if facts that may exist were properly pleaded, should be challenged by a motion to strike . . . In contrast, a motion to dismiss is the proper vehicle to attack the jurisdiction of the court. A motion to dismiss essentially asserts that as a matter of law and fact, the plaintiff cannot state a cause of action that is properly before the court." Third Taxing District v. Lyons, 35 Conn. App. 795, 803, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994). The practical difference between granting a motion to dismiss and granting a motion to strike "is that only in the latter case does the plaintiff have the opportunity to amend its complaint." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501, 815 A.2d 1188 (2003).
While the defendant Bolton, having appealed to the Commission, is entitled to seek judicial review of the Commission's decision, his complaint is legally insufficient because he does not seek review of claims that he presented to the Commission. However, he may file a new pleading presenting those claims for judicial review. Practice Book § 10-44.
BY THE COURT
Bruce L. Levin Judge of the Superior Court