Opinion
No. 054009317
May 23, 2006
MEMORANDUM OF DECISION
Five years ago, in an emphatically worded opinion, this court explained that the procedure by which the defendant City of New Haven (City) hires its entry-level firefighters violates the "rule of three" mandated by Article XXX, § 160 of the New Haven Charter (Charter). Henry v. Civil Service Commission, 7 Conn.Ops. 826 (2001). Because Henry was a denial of a motion for summary judgment rather than a binding order, the City chose not to follow its analysis until the eve of trial of the injunction action, presenting a similar issue, now before the court. At that exceedingly late point, the City threw in the towel on the merits. The City agrees to follow the "rule of three" in future entry-level hires and further agrees that an injunction (at least of some sort) should enter binding it to do so. The important issue remaining in the case is the relief, if any, to be given to the plaintiff, Matthew Hurley.
Although, in light of the City's concession, the proper construction of Article XXX, § 160 of the Charter is no longer in dispute, a brief description of the original problem will help to place the remaining controversy in perspective.
Article XXX, § 160 provides, in relevant part, that:
Whenever [the civil service] board shall have adopted rules relative to the appointment or promotion of any class of [city government] officials, no appointments or promotions within such class shall be made except from those applicants with the three highest scores of those who shall have passed an examination with a score of at least seventy percentum and have received a certificate to that effect from said board, and are upon the list of those eligible to such position or promotion under the rules of said board, excepting supernumerary police and substitute fire personnel.
As Henry describes, for a very long time, going back many decades, the City evaded the clear mandate of the Charter by appointing all entry-level police personnel as "supernumerary police" and all entry-level firefighters as "substitute fire personnel." The City openly admitted this practice to the thoroughly astonished court. 7 Conn.Ops. at 827. After Henry, the City became even more open about this practice, at least in the case of firefighters, by declaring, on at least some forms, that it was hiring "substitute fife personnel." This practice thus transformed a narrow and limited exception from the clear requirements of civil service examination into a veritable Champs-Elysees.
This practice was not authorized by the Charter. As Henry explains:
In the context of civil service laws, exceptions for "supernumerary police" and "substitute fire personnel" are entirely sensible. If the City suddenly needs additional police or fire personnel to cope with, for example, a riot or fire of exceptional magnitude, the exigencies of the situation would not permit the administration of civil service tests to newly deputized persons. Similarly, if the police or fire department were suddenly stricken with a disease of epidemic proportions, it might be necessary to quickly (and temporarily) fill their ranks with newly deputized persons. But, as mentioned, positions of this description are entirely distinct from those of entry-level personnel hired for regular service.
7 Conn.Ops. at 827.
In the Spring of 2004, the plaintiff, Matthew Hurley, submitted an application to the City's Civil Service Board (Board) to become an entry-level firefighter. (Some of the forms he received use the word "substitute," while others do not; for present purposes, the difference is unimportant.) He took, and passed, both a written examination and a physical agility assessment. On August 10, 2004, the Board certified an "Eligible List Roster" (List) of "persons, having passed an examination with a score of 70% or more, and having complied with all the Rules and Regulations of the Civil Service Board . . . certified as eligible for a position in the following classification: Substitute Fire Personnel." The stated expiration date on the List was August 10, 2006. The List contains the names of approximately 320 persons, listed alphabetically. Each person listed is given the identical score: "Pass." One of the listed names is that of Matthew Hurley.
In October 2004, approximately twenty candidates were selected from the List to commence training in the City's academy for entry-level firefighters. (Approximately seventeen of these candidates subsequently passed the academy and were hired as probationary firefighters.) No other candidates have been chosen from the List since its original certification. Hurley, whose name appears on the list, has not been selected.
On April 12, 2005, Hurley commenced this action by service of process. He is the sole plaintiff. The defendants are the City; John DeStefano, Jr., the Mayor; Tina Burgett, the City's Director of Human Resources; and Noelia Mercano, the City's Chief Examiner. Hurley's verified complaint consists of a single count, requesting a declaratory judgment that the entry-level hiring practices then-prevailing violate the Charter, an injunction enjoining the defendants from the practices complained of, and "[s]uch further relief as is deemed just and necessary."
On November 28, 2005, the court (Lager, J.) ordered the case scheduled for trial on March 9, 2006. As Dr. Johnson famously observed, "[W]hen a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully." James Boswell, Life of Samuel Johnson (1791) (statement of September 19, 1777).
On December 13, 2005, the Board voted to amend the List to state an expiration date of December 31, 2005. The Chairman stated that, "[I]n light of recent court decisions, he is requesting that Human Resources report back to the . . . Board with suggested best practices and tools for improvements to the current selection processes in the City's Public Safety departments."
In late February or early March 2006, Director Burgett decided that the City would comply with Henry by hiring entry-level firefighters by the "rule of three." She further decided, ostensibly for budgetary reasons, that the new procedure would be implemented by announcing examinations for a new list in the Spring of 2007.
On March 7, 2006, the court (Lager, J.) ordered the case scheduled for trial on April 10, 2006.
The case was tried to the court on April 10, 11, and 12 and May 5, 2006. Following the submission of post-trial briefs, the case was argued on May 22, 2006.
The jurisdiction of the court must briefly be addressed. The Superior Court unquestionably possesses the usual jurisdiction of a state trial court of general jurisdiction to hear civil actions seeking injunctive and declaratory relief on March 20, 2006, however, the defendants filed a motion to dismiss (No. 112) arguing that, because of their recent decision to comply with Henry, "(1) the plaintiff lacks standing and (2) this action is moot." On April 10, 2006, following argument, the court denied the motion, stating its reasons orally.
Stated briefly, the plaintiff plainly has standing because he seeks judicial relief that has not yet been obtained. The defendants (who were not exactly swift in their compliance with Henry in the first place) could, in the absence of a court order, change their minds the minute they walked out of the courthouse door. "Voluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur . . . And the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000). (Emphasis in original; internal quotation marks, brackets, and citations omitted.) The defendants have not met this heavy burden. "It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption." United States v. Oregon State Medical Society, 343 U.S. 326, 333 (1952).
The merits of the injunctive and declaratory relief sought by Hurley are fully discussed in Henry, and there is no need to repeat that discussion. As Henry explains, for purposes of Art. XXX, § 160 of the Charter, "entry-level fire personnel are not `substitute fire personnel.' Positions of this description are subject to the merit selection rules of § 160." 7 Conn.Ops. at 828. As I understand the City's representations to this court, the City no longer disputes this mandate with respect to new entry-level hires.
The case of Hurley himself remains to be considered. This is not a class action. It is an action brought by Hurley alone.
Hurley's verified complaint "prays for the following relief:
a. A declaratory judgment declaring the aforesaid practices unlawful and violative of the Charter of the City of New Haven;
b. A temporary and permanent injunction enjoining the defendants and each of them from persisting in the practices complained of;
c. An award of costs and expenses associated with this action;
d. Such further relief as is deemed just and necessary.
The prayer for relief just recited is conspicuous for the absence of any explicit request that Hurley be appointed as an entry-level firefighter. As Henry explains, "under the `rule of three' no one applicant has a right to the office in question. The only right that can appropriately be asserted is the right to be reconsidered in a fair manner." 7 Conn.Ops. at 828. See Andriola v. Ortiz, 624 N.E.2d 667, 669 (N.Y. 1993), cert. denied 511 U.S. 1031 (1994). The court will construe Hurley's catch-all request for "[s]uch further relief as is deemed just and necessary" as requesting such relief.
At the court's request, the City produced evidence concerning Hurley's ranking on the written examination and physical agility assessment. The evidence submitted on this issue was the testimony of Bruce Davey, the Director of Bruce Davey Associates, which designed and administered the tests in question. Davey is an experienced tester of would-be firefighters and police officers.
Davey credibly testified that 427 persons took the written examination, and 371 passed it. Of those who passed the written examination, 323 persons took the physical agility assessment. 320 of those persons passed and were placed on the List. Hurley's weighted score on the written examination was 77.8. That score places him in an 18-way tie for 190th place on the list. 189 applicants had a higher score. Hurley's score on the physical agility assessment was considerably more impressive. Hurley completed his physical tasks in a combined time of 167 seconds. That score places him in a 2-way tie for second place. Only one applicant had a faster time.
As mentioned, the tests in question were openly administered on a pass-fail basis. Davey credibly testified that this fact has a substantial effect on the reliability of the after-the-fact physical agility assessment rankings, but a much smaller effect on the reliability of the after-the-fact written examination rankings. Candidates taking pass-fail physical agility examinations are likely to pace themselves and do the minimum required to pass in order to avoid the risk of physical injury. Candidates taking a written examination are, in contrast, not exposed to the risk of physical injury and are likely to give the examination their best effort regardless of the pass-fail nature of the examination.
The City is not required, by the Charter or anything else, to hire a minimum number of entry-level firefighters. As mentioned, approximately 20 entry-level firefighters have been selected from the List. In the judgment of the court, the issue in Hurley's individual case boils down to the question whether, in the selection of those 20 candidates, there is any reasonable possibility that he would have been selected from the List by the use of the "rule of three." If such a reasonable possibility exists, he is entitled to some sort of court-ordered consideration from the List. If no such possibility exists, he is simply entitled to apply for future lists in the same capacity as any other candidate and, if included on such lists, to be considered for appointment by the use of the "rule of three." Although this court doubtless has the power in an appropriate case to order the City to regrade the examinations and promulgate a special eligible list; see Andriola v. Ortiz, supra, 624 N.E.2d at 670; compliance with such an order would be neither easy nor cost-free. It would not be equitable to make such an order if the only individual bringing the action could not reasonably expect to benefit from the order.
Based on the credible evidence produced in this case, the court concludes that, given Hurley's scores, there is no reasonable possibility that he would have been selected from the List by the use of the "rule of three." Although his physical agility assessment score (tied for second place) is commendably high, his written examination score (tied for 190th place) is simply too low to permit any other conclusion. Even it in spite of Davey's credible testimony to the contrary, Hurley's relative physical agility assessment ranking were deemed reliable and even if, hypothetically, that physical agility assessment score were given a weight equal to that of the written examination score in compiling a consolidated score, Hurley would still place only in the top ninety or so candidates overall.
There is some evidence that about two-dozen applicants who scored higher than Hurley on the written examination dropped out of the competition prior to the physical agility assessment. Even if these candidates are removed from the picture, Hurley would still place only in the top eighty or so candidates overall. Hurley's argument that he was so far ahead of the others in terms of his physical agility assessment that he would place in the top twenty candidates overall in spite of his ranking on the written examination unduly demeans the integral importance of written examinations in civil service hiring.
Under these circumstances, Hurley would not have been selected had the twenty entry-level firefighters selected in 2004 been selected from the List by the "rule of three." Of course, as mentioned, neither the Charter nor anything else requires any particular number of selectees in the first place. Since Hurley would not benefit from a regrading of the examinations and a promulgation of a special list, no regrading or promulgation will be ordered.
For reasons already stated, however, the court agrees that prospective injunctive and declaratory relief is appropriate. For the reasons stated in Henry, the Court declares that entry-level fire personnel are not "substitute fire personnel" for purposes of Art. XXX, § 160 of the Charter. It further orders as follows with respect to future entry-level fire personnel hires:
1. The defendants shall administer examinations to applicants for the position of entry-level firefighter in accordance with the "rule of three" set forth in Article XXX, § 160 of the Charter.
2. The defendants shall not certify eligible lists of applicants for the position of entry-level firefighter pursuant to the provision in Article XXX, § 160 of the Charter excepting "substitute fire personnel."
3. The defendants may seek modification of these orders in the event of future Charter modification or other case law or legislative developments. Each party shall bear its own costs.