Opinion
No. CV 04-0185617 S
November 22, 2005
MEMORANDUM OF DECISION
This matter is a quo warranto action involving a request by the plaintiffs for the court to determine whether the borough of Naugatuck has a right by ordinance to create alternate positions on their board of fire commissioners. On March 17, 2005, the plaintiffs, Michael Chatfield, Daniel Ford, Todd Gallino, John Lauer, Stephen Hebb, Kevin Grotke and the International Association of FireFighters Local 1219 (union), filed an amended complaint in the nature of a quo warranto against the defendants, Richard Mortensen and Wayne Malicki.
The individual plaintiffs allege that they are employees, residents and taxpayers of the Borough of Naugatuck and members of the plaintiff union.
On March 17, 2005, the court granted the plaintiffs' motion to dismiss without prejudice to Mortensen as a defendant, because Mortensen no longer held the office of alternate member of the fire commission.
The plaintiffs allege that Malicki was appointed as an alternate member of the Board of Fire Commissioners for the Borough of Naugatuck (board), a position that he is not entitled to hold, because the legislation creating the board did not provide for alternate commissioners. The plaintiffs therefore pray "that the Defendant be required to answer to the court by what authority he claims to hold office and exercise the rights and powers and privileges thereof."
On March 17, 2005, Milicki filed an answer, special defense and "amended cross complaint" against the plaintiffs. Malicki's special defense and cross complaint are similar in that they both assert that he has a right to hold the position as an alternate on the board by virtue of his appointment by the mayor pursuant to ordinance number 115. In his cross complaint, Malicki seeks an order confirming his right to hold the position and attorneys fees and costs pursuant to General Statutes § 52-492.
Although denoted an "amended cross complaint," Malicki's pleading is a counterclaim because he is asserting claims against the plaintiff. Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985) (a counterclaim has been defined as a cause of action asserted by the defendant against the plaintiff to allow recovery by the defendant).
The parties stipulated to the essential facts of the case on March 17, 2005. The facts most pertinent to this court's determination of whether Malicki is entitled to hold office are as follows. The borough of Naugatuck is a consolidated municipality established and organized under state law and has all the powers granted to municipalities, including, but not limited, to those powers granted to municipalities under Connecticut General Statutes § 7-148. The Connecticut general assembly passed Special Act No. 173 (1953) creating the board. On November 4, 2003, the board of mayor and burgesses voted and approved ordinance 115, creating two alternate positions on the board. Both alternate positions were given all the powers and duties conferred on regular members of the board.
Providing the scope of municipal powers.
The plaintiffs allege in ¶ 7 of their complaint that the "Borough of Naugatuck is governed by a Board of mayor and burgesses. Connecticut General Statutes § 7-193(a)(1), Borough of Naugatuck Charter, Section 5."
On April 15, 2005, the defendant filed a memorandum of law opposing the quo warranto action, and on April 28, 2005, the plaintiffs filed their memorandum of law in support.
I.
"A complaint in the nature of a quo warranto may be brought [w]hen any person usurps the exercise of any office . . . [and] the Superior Court may proceed . . . to punish such person . . . for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law . . . A quo warranto proceeding under the common law lies only to test the defendant's right to hold office de jure is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute." (Citation omitted; internal quotation marks omitted.) Demarest v. Fire Dept. of Norwalk, 76 Conn.App. 24, 28-29, 817 A.2d 1285 (2003).
The plaintiffs argue that Naugatuck operates under a charter pursuant to the Home Rule Act and, therefore, Naugatuck's municipal power must be exercised in accordance with its charter. Further, pursuant to General Statutes §§ 7-191a and 7-192(a), the plaintiffs argue that the charter mandates a fire commission composed of five electors of the borough and the mayor, all of whom are voting members. The charter does not, the plaintiffs argue, provide for alternate members with all the powers and duties of regular members.
General Statutes § 7-191a provides: "[A]ny home rule ordinance in effect on October 1, 1982, shall be part of the organic law of the municipality and the special act superseded thereby and any other special act relating to the government of such municipality inconsistent therewith are repealed."
General Statutes § 7-192(a) provides in relevant part that "[e]very charter, special act and home rule ordinance in effect on October 1, 1982, shall continue in effect until repealed or superseded by the adoption of a charter, charter amendments or home rule ordinance amendments in accordance with this chapter, the provisions in any charter in existence on said date governing revision or amendment to the contrary notwithstanding."
The plaintiffs next argue that the borough of Naugatuck failed to amend its charter to modify the fire commission. The plaintiffs argue that the only valid manner in which a municipality may amend its charter is to comply with the provisions of the Home Rule Act, which a municipality cannot waive. The plaintiffs argue, therefore, that a municipality cannot alter its charter by ordinance. The plaintiffs further argue that the mayor's powers are enumerated in the charter and do not include the power to modify the borough's charter.
The plaintiffs also argue that upholding the ordinance would render the charter meaningless, because doing so would permit the charter to be amended by a simple vote of the burgesses. The burgesses, thus, would usurp the electors' rights to amend the charter. The plaintiffs argue that the proper way to alter the fire commission is by amendment, which the borough failed to do. The plaintiffs finally argue that the borough's action is inconsistent with previous revisions to the fire commission, which were accomplished by charter amendment subject to voter approval.
In opposition to the plaintiffs' quo warranto challenge, the defendant first argues that Naugatuck has the power under § 7-148(c) to add two alternate positions to the fire commission because the commission regulates the fire department. Adding alternates to the fire commission, the defendant contends, is a rational use of power because it allows business to be conducted when it otherwise could not be conducted due to the failure to reach a quorum in the absence of regular members. The defendant further argues that § 7-148 authorizes the municipality to use its power by ordinance unless a charter or special act provision provides to the contrary and that there is no provision in the special act, charter or general statutes that prohibits Naugatuck from creating the alternate positions by ordinance.
General Statutes § 7-148(c) provides in relevant part: "Powers. Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes . . . [4] . . . (B) Provide for fire protection, organize, maintain and regulate the persons providing fire protection, provide the necessary apparatus for extinguishing fires and do all other things necessary or desirable for the protection of the muncipality from fire." (Emphasis added.)
The defendant then argues that the ordinance at issue does not change the special act that created the fire commission because the ordinance merely allows alternates to possess powers as regular members of the fire commission.
The defendant also argues that § 7-193(b) provides additional authority for passing such an ordinance because it allows municipalities to alter the organization and make up of commissions by ordinance unless specifically prohibited under the constitution and the general statutes. The defendant asserts that there is no specific prohibition against such alteration and, further, § 7-193(b) would even allow Naugatuck to go beyond adding alternate members to the fire commission because it authorizes municipalities to combine or separate duties of commissions.
The defendant's fourth argument is that the borough of Naugatuck has all the powers granted to it by the special acts of the legislature plus all the powers granted to all municipalities by the general statutes. The defendant claims that Naugatuck has created numerous commissions by ordinance pursuant to the general statutes, each of which have alternates created by ordinance. The Home Rule Act, the defendant argues, was completely revised in 1957 to grant greater powers to municipalities to change their charters without seeking the enactment of a public act by the Connecticut General Assembly. The defendant asserts that nothing in the Home Rule Act limits the power of municipalities from exercising the powers granted to all towns under the general statutes. The defendant argues that a situation in which a special act of the legislature cannot be changed by ordinance is where the subject of the special act is of statewide concern, such as education. On the other hand, the defendant argues that Naugatuck has complete authority to regulate the area of fire protection pursuant to § 7-148. The defendant states that statutes should be construed to create a rational, coherent and consistent body of law and it would be inconsistent with existing statutes and case law if non charter towns acting under the general statutes were able to create the position of alternate to a town commission by ordinance while charter or special act towns could not.
The defendant's final argument is that invalidating ordinance 115 would mean that all similar municipal acts were unlawful. The defendant contends that a bizarre and irrational interpretation of applicable Connecticut law can lead to a result of this nature.
II.
It is clear that the borough of Naugatuck has the authority under General Statutes § 7-193(b) to pass an ordinance creating two alternate positions to the Naugatuck fire commission. Section 7-193(b) of the General Statutes states in relevant part: "Any municipality may, by . . . ordinance . . . adopted pursuant to such charter, alter the method of election, appointment or organization of any or all of such officers, departments, boards, commissions or agencies, including combining or separating the duties of each, unless specifically prohibited from making such alteration by the constitution or the general statutes." General Statutes § 7-193(b).
Although the Appellate Court, in Board of Education v. Naugatuck, 70 Conn.App. 358, 800 A.2d 517 (2002), addressed an issue not wholly on point with the issue in the present case, part of the court's reasoning is useful to the resolution of the present case. The Appellate Court stated that "[S]ection 7-193(b) by its plain terms clearly authorizes municipalities to elect and organize local [commissions,] officers and boards as they see fit, absent a specific constitutional or statutory prohibition. Conspicuously absent is any reference to the common law or use of a broad limiting phrase such as `unless otherwise prohibited by law.' A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the [drafters] in enacting the statute is to be derived from the words used . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance." (Citation omitted; internal quotation marks omitted.). Id., 376.
Board of Education v. Naugatuck concerned a proposed charter amendment while the present case concerns an ordinance. In Board of Education v. Naugatuck, the Appellate Court held that the proposed charter amendment, providing that the person elected mayor of the borough would also be elected by the voters as one of the nine members of the board of education, was valid under § 7-193(b) and was not subject to the common-law doctrine of incompatible offices. On appeal, the Supreme Court reversed the Appellate Court on other grounds, holding that the Appellate Court improperly upheld the trial court's invalidation of the proposed charter amendment because the procedure for adopting a budget is a local concern and the proposed amendment did not violate any state statute or policy pertaining to education, which is an area of statewide concern. Board of Education v. Naugatuck, 268 Conn. 295, 843 A.2d 603 (2004).
In the present case, Naugatuck acted within the clear and unambiguous parameters of § 7-193(b). Ordinance 115 alters the organization of the board of fire commissioners by adding two alternate members. Neither the constitution nor the general statutes specifically prohibits Naugatuck from passing such an ordinance. Further, the court could not find any Naugatuck charter provision which specifically prohibits such an ordinance nor does the plaintiffs cite any such provision.
The appellate court addressed the conflict between the Home Rule Act, General Statutes §§ 7-187 through 7-201 and the charter of the town of Plainville, in Dumais v. Underwood, 47 Conn.App. 783, 707 A.2d 333, cert denied, 244 Conn. 918, 714 A.2d 4 (1998). In Dumais, the court held that appointments of members to Plainville's charter revision commission by four votes were invalid because the charter required five votes. The court stated that the town's charter controlled in this situation because the applicable sections of the General Statutes are silent as to the number of votes required to appoint members. It is evident that the legislature, in enacting the Home Rule Act, intended to give `home rule towns' the freedom to retain aspects of special acts and charters suited to particular local needs and practices. Id., 792-93.
In the present case, however, the provision in the Naugatuck charter relating to the organization of the board of fire commissioners does not prohibit the creation and co-existence of alternate positions. Special Act No. 173 establishes that the fire commission consists of five electors plus the mayor. The special act also establishes a process for replacing members of the board of fire commissioners in the event of a vacancy on the board. Neither the process for filling vacancies nor the number of members, however, prohibits the co-existence of alternate members and a process by which those alternate members are appointed. Therefore, § 7-193(b) provides authority for the borough of Naugatuck to pass an ordinance creating two alternate positions to the board of fire commissioners of Naugatuck.
Defendant's Exhibit D, Code of Ordinances, Borough of Naugatuck.
Section 1 of Special Act No. 173 (1953) states, "[i]n the event of a vacancy in said board for any reason including disability, resignation, death, removal of residence from the borough, disqualification by reason of loss of elector's rights or removal from office the mayor shall within thirty days of such vacancy appoint an elector of said borough to serve for the remainder of the unexpired term."
For the foregoing reasons, this court confirms the right of the defendant to hold the office of alternate member of Naugatuck's board of fire commissioners and dismisses the complaint in the nature of a quo warranto. The defendant's request for attorneys fees is denied, as Section 52-492 does not entitle the prevailing party to attorneys fees.