Opinion
CASE NO. 313 CRD-5-84
JULY 24, 1984
The Claimant-Appellant was represented by James P. Caulfield, Esq.
Frank J. Raccio, Esq., filed a brief as amicus curiae.
The Respondent-Appellee was represented by Thomas G. Parisot, Esq., Assistant Corporation Counsel, City of Waterbury.
This Petition for Review from the March 5, 1984 Finding and Dismissal of the Commissioner at Large acting for the Fifth District was argued June 29, 1984 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Gerald Kolinsky.
FINDING AND AWARD
1-5. Paragraphs 1 through 5 of the Commissioner's Finding are affirmed and adopted as Paragraphs 1-5 of this Division's Finding.
6. The claimant is a regular member of a paid municipal police department and therefore entitled to Sec. 7-433c benefits.
The matter is remanded to the Commissioner for further hearing to determine the amount of benefits due.
This Finding and Award was written by Chairman John Arcudi for the entire panel.
OPINION
Ducharme v. Putnam, 161 Conn. 135 (April 20, 1971) contained an instruction manual from the judicial to the legislative branch on how to pass constitutional legislation in heart and hypertension cases. When the 1971 General Assembly a few short weeks later followed those instructions and enacted Sec. 7-433c, C.G.S., legislators of both political parties and interest groups favoring that result experienced an understandable sense of achievement. They believed they had solved the problem. But after some nine appellate decisions thirteen years later, many issues raised by that law seem still unresolved, Grover v. Manchester, 168 Conn. 84 (1975); Pyne v. New Haven, 177 Conn. 456 (1979); Plainville v. Travelers Indemnity Co., 178 Conn. 664 (1979); Bakelaar v. West Haven, 193 Conn. 59 (1984); Zimmer v. Essex, 38 Conn. Sup. 419 (1982); Adams v. New Haven, 39 Conn. Sup. 321 (1983); Janco v. Fairfield, 39 Conn. Sup. 403 (1983); Middletown v. Local 1073, 1 Conn. App. 58 (1983); Revoir v. New Britain, 2 Conn. App. 255 (1984).
The instant matters arise because one of the commissioners below read the holding of Zimmer v. Essex, 1 Conn. Workers' Comp. Rev. Op. 71 (1981) Aff'd. 38 Conn. Sup. 419 (1982), retrospectively as well as prospectively. In Zimmer, the town of Essex had never been granted a municipal charter by the legislature establishing a police department before the Home Rule Act of 1957. Essex relied on constables and resident state Policemen to perform police duties for the town. Nor had the town before or after June 28, 1971, the effective date of Sec. 7-433c, established a police department in conformity with Sec. 7-274, 7-276, C.G.S. The commissioner in Zimmer therefore ruled that a constable performing police services for the town could not be considered a "regular member of a paid municipal police department" when no such department ever existed. It was that holding which was affirmed by the Compensation Review Division and by the Appellate Session of the Superior Court.
Secs. 7-187 — 7-201, C.G.S.
Both municipalities in the cases now before us had obtained municipal charters long before the enactment of Sec. 7-274 and home rule legislation. Bagni v. Bristol, 127 Conn. 38, 43 (1940); Sloane v. Waterbury, 150 Conn. 24 (1962). Both Bristol and Waterbury therefore had police departments in existence before June 28, 1971. But the respondent employers relying on the Zimmer language, "Sec. 7-274 `is the only legislatively sanctioned method by which a Connecticut municipality may provide itself police protection through the organization of a police department'," argue that neither Waterbury or Bristol had a Sec. 7-274 police department and therefore the policemen of these two municipalities are not entitled to heart and hypertension benefits. Were this argument to prevail, the large majority of Connecticut's police departments created under municipal charter powers granted by special acts of the legislature preceding by many years the enactment of Sec. 7-274 and the Home Rule Act would be excluded from Sec. 7-433c benefits. But that is not Zimmer's holding. Zimmer simply declares that a municipality without a police department established before enactment of Sec. 7-274, before municipal home rule, before Sec. 7-433c in order to permit Sec. 7-433c benefits needed to create such a department in conformity with Sec. 7-274 procedures. It says no more and no less.
Even the most cursory perusal of Shepard's Connecticut Citations, Statute Edition 1983, Municipal Charters, 401-492, reveals that all municipalities except Essex in the appellate decisions cited above, Manchester, New Haven, Plainville, West Haven, Fairfield, Middletown and New Britain, had been granted charters and established police departments before June 28, 1971. The 1971 legislature acted with that knowledge. It defies imagination to presume that the General Assembly intended to limit heart and hypertension benefits to those towns, cities and boroughs who before or after 1971 created Sec. 7-274 police departments. Such a .conclusion concerning the application of Sec. 7-274 has already been tested and found lacking by our Supreme Court with respect to two municipal police departments whose creations antedated the passage of Sec. 7-274, Cheshire and New Haven.
In Moran v. Bens, 144 Conn. 27 (1956) the Town of Cheshire on May 27, 1954 had mistakenly constituted a police department with appointed police commissioners under Secs. 656-661, Conn. Gen. Stats., Rev. of 1949. But those statutes had been repealed in 1953, Cum. Supp. 1953, Secs. 207c-209c, 526c. Therefore, a Superior Court decision, State ex. rel. Moran v. Washburn, 19 Conn. Sup. 316 (Feb. 17, 1955) declared invalid the 1954 action. However, the General Assembly by a Special Act approved April 5, 1955, 27 Spec. Laws 52, gave retroactive validity to the town's previous action and cured the defect in the appointment of police commissioners to serve until the town election of 1955. Secs. 207c of the 1953 Cumulative Supplement, now Sec. 7-274, Conn. Gen. Stats. Rev. 1983, before 1973 did not permit appointive police commissioners. Justice Baldwin wrote the Moran opinion: "Towns are creatures of the General Assembly (citations omitted). The legislature may adopt general legislation dealing with a particular matter and later confer upon a town power to act in a special and different way," Moran v. Bens, supra, 30. Thus the Cheshire police department and its police commissioners constituted in a manner not in conformity with the provisions of Sec. 7-274 as it then existed became nonetheless a legal police department
Board of Police Commissioners of New Haven vs. White, 171 Conn. 553 (1976) and Board of Police Commissioners of New Haven v. Maher, 171 Conn. 613 (1976) involved the powers of the New Haven Board of Police Commissioners. Those powers were derived from charter provisions originally enacted in 1861. That Board was an appointive one and not an elected one as Sec. 7-276 required on February 26, 1973. As of that date the Board after presentation of charges, hearing and deliberations, removed and dismissed the defendant police officers from the New Haven police department. Sec. 7-276 provided that police commissioners had the sole power of removal of officers of a police department. The defendant officers and their union initiated a grievance proceeding over the ordered discharge pursuant to the collective bargaining agreement and sought arbitration of the ordered discharges by the Connecticut Board of Mediation and Arbitration. The Board of Police Commissioners sought to enjoin the arbitration proceeding. The plaintiff Board's legal claim was that the grievance proceeding would empower the arbitrators with the authority to retain or remove the defendant police officers, while Sec. 7-276 gave the sole power of removal to the Board. The court held:
"The trial court correctly concluded that the powers of the plaintiff board of police commissioners were derived from the provisions of the charter of the city of New Haven. The charter provisions were originally enacted in 1861 by special act; 5 Spec. Laws 439; and as amended in 1899; 13 Spec. Laws 403; have remained essentially the same except that in 1903; 14 Spec. Laws 474; the right of judicial appeal by a discharged officer was added. The board in New Haven is comprised of six members who are appointed by the mayor — not elected as the later enacted 7-274 of the General Statutes would require. Section 7-274 is clearly permissive, providing that `[a]ny town may, by ordinance, establish a board of police commissioners, [emphasis added]' consisting of three, five or seven electors. New Haven has not chosen to act under the enabling provisions of 7-274 and the powers of the plaintiff commissioners are those provided in the city charter."
Board of Police Commissioners v. White, supra, 562-563.
Thus in the two cases in which our Supreme Court has interpreted Sec. 7-274 with respect to police departments created not in conformity with that statute it has found those departments to be validly constituted. This is not to say that the Zimmer holding was incorrect. It simply is not relevant to those municipalities which had existing police departments as of June 28, 1971.
We have alluded throughout the foregoing discussion to the Home Rule Act of 1957, P.A. 465, and its effect on Sec. 7-433c benefits. Justice Longo's excellent analysis in Caulfield v. Noble, 178 Conn. 81 (1979) is particularly valuable in this regard. Note 2 on pages 85 and 86 of that decision should be read for a succinct history of that legislation. Most relevant for consideration here is Sec. 6 of that 1957 law, as amended by Sec. 7, P.A. 81-451, now Sec. 7-192. The 1957 law contained the following language:
". . . all charters and special acts in effect on May 29, 1957, shall continue in effect until repealed, superseded or amended by the adoption of a charter, charter revision or amendment in accordance with this chapter . . . Any town, city or borough administering its local affairs under the provisions of the general statutes or special acts adopted prior to said date may .continue to so administer its local affairs until the electors of such town, city or borough avail themselves of the provisions of this chapter."
The 1981 amendment to Sec. 7-192 effective October 1, 1982 has the following language:
"Every charter, special act, and home rule ordinance in effect on Oct. 1, 1982, shall continue in effect until repealed, superseded or revised by the adoption of a charter, a revised charter or a revised home rule ordinance in accordance with this chapter, the provisions in any charter in existence on said date governing revision or amendment to the contrary notwithstanding. Nothing in this section shall prohibit the adoption of a revised home rule ordinance by any method established in such home rule ordinance if the provisions concerning such method were in effect on July 15, 1959. Any municipality administering its local affairs under the provisions of the general statutes or special acts adopted prior to said date may continue to so administer its local affairs until the electors of such municipality avail themselves of the provisions of this chapter. Any municipality having as its organic law a home rule ordinance or a revised home rule ordinance shall after any revision of such ordinance publish, in a single document, any such home rule ordinance and shall make such ordinance available at a nominal cost to any member of the public."
Also relevant is Article Tenth of the Connecticut Constitution which states:
"After July 1, 1969, the general assembly shall enact no special legislation relative to the powers, organization, terms of elective offices or form of government of any single town, city or borough . . ."
Caulfield at page 93 declares, "Finally, as a matter of pure statutory construction, there is a presumption that the legislature, in enacting a law, did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law." (citations omitted)
Thus, our examination of the special acts of the legislature, the general statutes relating to the creations of municipal police departments and the home rule legislation of the past thirty years as well as the Connecticut Constitution of 1965, and the court decisions interpreting them demonstrates that the new enactments in those fields did not automatically supersede and invalidate previously existing municipal law. Rather the new enactments sought to preserve powers previously granted.
The first paragraph of this opinion referred to the actions of the 1971 General Assembly when it passed Sec. 7-433c. The legislative record shows the House passed House Bill No. 9245 on May 21, 1971. Representative Gerald F. Stevens of the 122nd District addressed the House prior to passage as follows:
"Unfortunately, a week ago last Monday, Mr. Badolato and I enjoyed the dubious distinction of having a bill we passed in 1969 declared unconstitutional by the Connecticut Supreme Court . . . and the purpose of the bill which is here before us tonight is to follow the wisdom of the Supreme Court, who suggested that we accomplish this result in a different manner. We have done that . . ."
14 H. Proc., Part 8, 1971 Sess., p. 3525
The Senate passed House Bill No. 9245 on June 3, 1971.
Senator Smith addressed the chamber before passage
"It is for this reason, that the legislature in 1969, again made the presumption conclusive. Now unfortunately Connecticut Supreme Court in a decision published on May 4, 1971, declared the conclusive presumption to be unconstitutional. However, the court in this decision, did go on to indicate that the objective of the statute could be constitutionally attained by an exercise of the power of the state to control its own governmental agency. And the benefits intended by the statute could be attained by legislation, requiring municipalities to provide special compensation for policemen and firefighters in such cases. Now House Bill 9245 has been raised and (sic) response to the court's decision and has been drafted with the court's suggestion. It provides a means of carrying out what has been the clear and consistent intent of this legislation since 1959 . . ."
14 S. Proc., Part 6, 1971 Sess., pp. 2803-2804
These excerpts from the Heart and Hypertension Act's legislative history demonstrate that the General Assembly clearly had in mind the Supreme Court decision in Ducharme v. Putnam, supra. Putnam's charter was originally granted at least as early as 1895, and a section of it related to the establishment of a police department. Given this history is it not then reasonable to assume that the legislature intended in 1971 to reverse the Ducharme decision and make the existing Putnam Police Department a beneficiary of heart and hypertension benefits? There was no legislative talk of having that police department conform to Sec. 7-274. Moreover in none of the eight appellate decisions on Sec. 7-433c we have cited supra did the courts raise any questions about the applicability of Sec. 7-433c benefits to those municipalities involved, all of whose departments antedated 1971. Logic and common sense as well as the case law itself dictate that we consider the 1971 law to confer benefits on all then existing "paid municipal police departments" as well as to those which might legally be constituted thereafter.
The decision of the Commissioner in Gallucci v. City of Waterbury, Case No. 313 CRD-5-84 is reversed and remanded.
The decision in Watson v. City of Bristol, Case No. 315 CRD-84 is affirmed.
Commissioners Berte and Kolinsky concur in this opinion.