Opinion
No. CV 98 0412193 S
December 1, 2005
MEMORANDUM OF DECISION
Before the court are Reports no. 2 and 3 filed before Special Master William Clendenon on certain disputed issues that have arisen out of the court's judgment in the above-captioned civil action, familiarity with which is presumed. Report No. 2 involved the promotion of Shirley Reyes to a non-sworn position within the New Haven Fire Department. After inquiry and hearing, the Special Master concluded and recommended that the court find that this proposed promotion was not within the scope of the court order. Special Master Report No. 3 involved the filling of a fire inspector position by Marvin Bell. The Special Master found that this proposed promotion was within the scope of the court order. The Special Master further concluded that the promotion of Ms. Bell was not made in accordance with the City's Civil Service Rules. In both instances, the Special Master held a hearing, listened to argument and reviewed memoranda from counsel prior to submitting his reports to the court. Counsel argued before the court regarding the propriety of the reports and orders emanating therefrom.
Report No. 2
The position to which the City desires to promote Shirley Reyes is Communications Operator II, which is a civilian supervisory position within the Fire Department. As the Special Master reported, the position was posted on August 2, 2004 and tested on December 7, 2004, after an examination was developed for the position. On December 16, 2004 the results of the examination were posted. The City did not refer the matter of promotion to this position to the Special Master. After it came to his attention he held hearing on the same on May 18, 2005. The Special Master concluded that he did not have jurisdiction under the court order over civil promotions.
The court agrees with that conclusion. The history of the Broadnax matter as well as other recurrent promotional problems have all related solely to uniformed (sworn) personnel. While the court presumes and expects that the City will follow all civil service regulations and laws regarding promotional practices of civilians, it was never the purpose or intent of the court order to apply to civilian personnel. Accordingly, the court accepts the Special Master's Report No. 2 and issues no orders in furtherance of the issues raised therein. The court does concur, however, with the footnote in the report which states, "In the future, the City should seek a ruling from the Special Master before making any promotion that is even arguably within the Special Master's jurisdiction."
Report No. 3
On September 8, 2005, the Special Master submitted his report pertaining to the City's proposal to fill an open position of Fire Inspector with Marvin Bell, a sworn firefighter. The following facts found by the special master are adopted by the court. Mr. Bell was originally appointed to the position of fire inspector from a list of qualified candidates. The record fails to disclose whether those candidates were merely those certified under General Statutes § 29-298 (see infra); whether there had been a city civil service examination from which qualified candidates were listed; whether the list consisted of ranking; whether Bell was selected in rank order, in accordance with the rule of three (Charter § 160) or on some other basis. When he was returned to the position of firefighter on July 1, 2003 as a result of a reduction in force, he was not put on a recall list. In fact, counsel for the City has conceded that no such recall list exists for the vacant fire inspector position, despite the requirements of the Civil Service Rules. See Civil Service Rule X.
When the position of fire inspector became vacant in December 2004 (as a result of a retirement of another individual), there was no then existing valid civil service list as a result of any testing and, as discussed above, no recall list pertaining to the position. Mr. Bell's proposed appointment by the City was the result of a stipulation entered into between the City and the Union after a union grievance following Mr. Bell's being laid off from the position of fire inspector, and returned to the position of firefighter, in 2003. The stipulation sought to fill the position with Mr. Bell effective January 3, 2005 without any notice to the Special Master. At argument before the court, the City disclosed that Mr. Bell had not been permanently filled to the job but was detailed to the position until court order. No party argued regarding the legality of that "detailing" under the Charter.
It is undisputed that the filling of the Fire Inspector position by Mr. Bell was not made in accordance with the procedure outlined in the City's Civil Service Rules, which in Mr. Bell's case require that the fire inspector opening be filled from a valid recall list or, in the absence of such a list, from a promotional examination list. See Civil Service Rule X. For three reasons, however, it has been argued that the Civil Service Rules are inapplicable to the issue at hand.
Specifically, (1) the City argues that the fire inspector position does not constitute a promotion from the firefighter position; (2) the City and the Union argue that the fire inspector position is an "unclassified" position under the City Charter, such that it is exempt from the Civil Service Rules; and (3) the City and the Union argue that the provisions of the Charter, as well as the judgment of the court in this matter, must yield to the agreement between the City and the Union regarding the grievance of Mr. Bell's removal from the fire inspector position pursuant to the Municipal Employees Relations Act ("MERA"), General Statutes §§ 7-460 et seq. The court addresses these issues in turn.
First, the City argues that the move from firefighter to fire inspector is a lateral appointment, rather than a promotion. The Plaintiff and the Union, on the other hand, agree that the move from firefighter to fire inspector is a promotion. The court agrees with the Plaintiff and the Union.
The fire inspector position will result in a pay raise and regular day-time work hours for Mr. Bell. Moreover, evidence before the Special Master indicated that the promotion of an individual to Fire Inspector is generally accompanied by a formal acknowledgment letter. Statutory requirements disclose that certification and training is required, over and above those of a firefighter, to qualify for the position. See Connecticut General Statutes § 29-298. Further, it is a promotion of sworn personnel inasmuch as the candidate must be a firefighter. The court therefore concludes that the fire inspector position is a promotion from fire fighter. New Haven Police Local 530 v. Logue, 188 Conn. 290, 298-99, 449 A.2d 990 (Holding new positions within the New Haven Police Department to be promotions where new positions entailed pay raise, base salary attributable to position, and formal acknowledgment letter, among other things.) Because the fire inspection position is a promotion, it is subject to the testing and other requirements of the Civil Service Rules. See id. at 299.
Next, the City argues that position of fire inspector is not a classified provision under the charter and therefore no testing is required for it. Specifically, the City argues that the Fire Inspector position is an unclassified position pursuant to the City of New Haven Charter, § 167(g), which provides, in pertinent part, that "The unclassified service shall comprise . . . persons employed in a professional or scientific capacity to make or conduct a temporary or special inquiry, investigation or examination and special investigators in any department." Section 167 goes on to state that "[t]he classified service shall comprise all positions not specifically included by this section in the unclassified service and all appointments and promotions therein shall be made according to merit and fitness to be ascertained by competitive examinations."
The standards for construction of a charter are well-established:
"It is elementary that `[t]he charter is the fountainhead of municipal powers. It originates and defines the powers of government and the methods of governance . . .' State ex rel. Raslavsky v. Bonvouloir, 167 Conn. 357, 362, 355 A.2d 275 (1974). In the construction of charters, ordinarily the rules of statutory construction are applied. 2 McQuillin, Municipal Corporations (3d Ed. Rev.) 9.22, p. 685. In arriving at the intention of the framers of the charter the whole and every part of the instrument or enactment must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws. `The real intention when once accurately and indubitably ascertained, will prevail over the literal sense of the terms. When the words used are explicit, they are to govern, of course. If not, then recourse is had to the context, the occasion and necessity of the provision, the mischief felt, and the remedy in view.' The language employed must be given its plain and obvious meaning, and, if the language is not ambiguous a court cannot arbitrarily add to or subtract from the words employed." 2 McQuillin, loc. cit.; see Sillman v. Sillman, 168 Conn. 144, 148-49, 358 A.2d 150 (1975); International Business Machines Corporation v. Brown, 167 Conn. 123, 133-34, 355 A.2d 236 (1974). "A charter of a city must be construed, if possible, so as reasonably to promote its ultimate purpose. Connelly v. Bridgeport, 104 Conn. 238, 256, 132 A. 690 (1926). A charter must receive a reasonable construction and must be examined in its entirety. Its parts must be reconciled and made operative so far as possible. Garbaty v. Norwalk Jewish Center, Inc., 148 Conn. 376, 382, 171 A.2d 197 (1961); Cislo v. Shelton, 35 Conn.Sup. 645, 656, 405 A.2d 84 (1978)."
Arminio v. Butler, 183 Conn. 211, 217-18, 440 A.2d 757 (1981).
The City argues that the fire inspector is a special investigator, as he does not do the "ordinary work of a firefighter." The provision, however, does not say that every skilled position in the fire department other than firefighter is unclassified. It is far more particular than that. Further, the relevant Charter language, as well as this state's strong public policy of construing local charters in a manner that protects the integrity of the civil service system, see Kelly v. New Haven, 275 Conn. 580, 608-09, 881 A.2d 978 (2005), leads the court to the conclusion that if the job is not specifically excepted from classified service, then it is expressly a part of classified service.
Based upon the job descriptions before the court and the statutory and regulatory framework governing the qualifications, testing, and duties of a fire inspector, the court finds that the investigation work done by a fire inspector is part of the routine and usual job function for that individual; it is not an unusual or special function for such an inspector. It is not a job routinely given to some other defined employee that a fire inspector would do on special occasions. Instead, it is part of the contemplated routine work of a fire inspector to inspect various edifices and devices for compliance with fire codes and standards, investigate complaints of fire hazards and assist in the inspection of fires that have occurred.
Indeed, the pertinent statutes and regulations indicate that, far from being special or unique in any way, the duties of a fire inspector are part and parcel of the statutorily mandated functions to be carried out in every municipality by the local fire marshal. A fire inspector works under the general supervision of the local fire marshal see Reg. Conn. State Agencies § 29-298-6(b), and is required by subsection (a) of that regulation to have "demonstrated the knowledge and ability to perform the duties of and carry out the responsibilities of a local fire marshal . . ." General Statutes §§ 29-302 and 29-305 direct the local fire marshal to investigate the cause and origins of fires and inspect various buildings for fire safety and code compliance, respectively. These are precisely the principal duties of a fire inspector, as prescribed by the above-cited regulation and as evidenced by the fire inspector job description that was submitted to the special master. It is therefore plain that the duties of the fire inspector are not special or extraordinary, but are instead part of the routine duties of the local fire marshal that must, as a matter of law, be carried out in each municipality.
Furthermore, the job skills are not confined to a very narrow group of individuals and not particularly special for investigatory work as would appear to be intended by Charter § 167(g). The job description and qualifications that the City maintains for fire inspection refers to its nature of work as technical fire prevention work through code enforcement. The examples of work are inspections of schools, day care centers, restaurants, etc., investigation complaints of fire hazards, maintenance of records and preparing reports. The job requirements as posted by the city are a high school education, no less than three months firefighting experience, `some knowledge' of firefighting, fire prevention, fire inspection techniques and applicable laws and ordinances, and good communication and public relation skills.
There are no specific statutory duties for fire inspectors. In order to be a fire inspector, it is required that the individual achieve a certification that can be achieved through a program of training as specified in the statute, or, the passage of an examination administered by the State Fire Marshall and the Codes and Standards Committee. See General Statues § 29-298. That certification is a prerequisite to the job and the lack of certification is a basis for removal from the position of fire inspector. The same certification refers to fire marshals as well. By the very nature of the description of the job duties it is conclusive that it is regular and that it is vulnerable to testing for competence, which is what the Civil Service examination process seeks to do in creating examinations and test results of qualified candidates. It is a position which is subject to the collective bargaining agreement between the Union and the City for employees of the Department. An examination of the other positions that are unclassified under Charter section 167 make clear that unclassified employers are elected officials or appointees to fill these vacancies, volunteers to boards and commissions specified by the mayor, titled employees in certain offices, corporate counsel office attorneys.
It is worth noting the decision of another trial court that considered the "special investigator" provision of the New Haven City Charter. At that time, in 1997, the court noted that the City had "never compiled a list of the job titles claimed to be exempt pursuant to § 167(g)." Local 530 v. Pastore, 1997 WL 524144 (Conn.Super. Aug. 14, 1997) (Hodgson, J.). Since 1997, knowing that this was an issue for that trial court in rejecting the City's notion that police detectives were "special investigators," the City has apparently still not compiled such a list, eight years later, despite the mandate of the Charter.
The court concludes the fire inspector position within the City Fire Department is a classified position under § 167 of the Charter.
Finally, the City and the Union both argue that the settlement of the labor grievance is outside the scope of the authority of the court under its orders and that to rule otherwise will result in violations of MERA. The plaintiffs disagree and assert that the court has the jurisdiction to act and that the position should be tested and posted in accordance with the City and statutory civil service requirements. Neither the City nor the Union provided any case law that would support their arguments that this court's remedial supervisory oversight over promotions must yield to the parties' joint decision to settle a grievance without regard to the appropriateness of the resolution in light of civil service and statutory requirements.
The plaintiffs noted in argument that Marvin Bell is African-American. However, they take the position that no person, regardless of race should benefit from misapplication of the law and that to argue otherwise would be wrong.
The court notes that there is an issue as to whether the agreement between the Union and the City pertaining to Mr. Bell is a proper subject of collective bargaining. It is not at all clear that the agreement is simply one pertaining to hours and wages, as the Union has argued, or whether the subject of the agreement falls within the specific promotional issues that are proper subjects of collective bargaining under General Statutes § 7-474(g). The court further notes that, contrary to the suggestion of the City and the Union, the fact that an agreement to resolve a grievance was reached does not ipso facto mean that the content of the agreement was a proper subject of collective bargaining. See Murchison v. Civil Service Commission, 234 Conn. 35, 48-49, 660 A.2d 850 (1995).
The court concludes, however, that it is not necessary to resolve the issue of whether the agreement to resolve the grievance brought by the Union on behalf of Mr. Bell is a proper subject of collective bargaining. As previously noted, there is no evidence before the court to indicate whether the initial promotion of Mr. Bell to the position of fire inspector was made in compliance with the relevant Charter and Civil Service provisions. Absent such evidence of initial compliance with the Charter and Civil Service Rules, the issue of whether the later promotion/reinstatement of Mr. Bell can be accomplished pursuant to an agreement to resolve a grievance is not yet ripe for adjudication.
Moreover, even assuming arguendo that the agreement to resolve the grievance is a proper subject of collective bargaining, that agreement ultimately must yield to this court's authority to mandate compliance with the Charter. A similar issue was considered by the court in Bridgeport Guardians v. Delmonte, 248 F.3d 66 (2d. Cir. 2001).
There, the Court had issued a remedial order to address racial discrimination in the disciplinary proceedings of the City of Bridgeport Police department. The Union was concerned that the collective bargaining agreement between the parties was displaced by the court order and that the City would use the remedial powers of the court to its advantage to the detriment of the Union's rights under the collective bargaining agreement. The 2nd Circuit concluded that remedial orders to prevent discrimination override the collective bargaining agreement. Id., 74-75.
In the instant case, the court orders have been put in place to ensure that the Fire Department, plagued with violations of law and Charter in their promotional practices for over 20 years, comply with the law to instill public and employee confidence in the process. In the litigation that produced this court order, the City and the Union were allied in resisting the plaintiffs' claims. Once again, the Union and the City argue that the collective bargaining agreement, and their ability to settle grievances is paramount to the interest of the court in seeing that promotions follow the law. However, in the circumstances of this matter, the court does not agree. The promotion contemplated is to a position that should be subject to civil service examination as a classified position. The only testing that the City historically engaged in for this position is a personal interview. If the position were tested for there would be a list of qualified candidates for the tenure of the list. If a person were laid off or otherwise removed from the position by virtue of what the city calls a `reduction in force,' then a list of the individuals so situated for the time of the validity of the list would be in place and pursuant to the collective bargaining agreement as well as the Charter provisions, the candidate to be promoted would be selected (assuming that individual has state certification, as discussed above). Instead, the procedure contemplated by the Union and the City is informal, not in compliance with the transparent requirements of civil service law, and therefore subject to manipulation, undermining the public confidence in the promotional practice.
The court enters the following orders: if the City desires to promote an individual to the position of fire inspector, it shall do so in compliance with Charter requirements and state law, after the examination for the position in compliance with Charter section 160. The City indicated that Marvin Bell is currently `detailed' to the position of fire inspector. The presence of Mr. Bell, or anyone else in that position shall only be in compliance with the provisions of the Charter regarding temporary assignment. The special master shall oversee the balance of the process for promotion of an individual to fire inspector. As the special master deems necessary, he may hold further hearings to determine the propriety of the initial promotion of Mr. Bell and the current validity, under the Charter and Civil Service Rules, of any list from which Mr. Bell was originally promoted. After reviewing the conduct of the City in Reports 2 and 3, the court cautions that no party to this action is to take unilateral action for promotion of sworn personnel, but submit prospectively, not retrospectively, to the review by the Special Master.