Opinion
No. FST CV 06-4009314 S
January 22, 2007
MEMORANDUM OF DECISION
The plaintiff in this matter is a police officer employed by the defendant, City of Stamford (the "City") who seeks a temporary and permanent writ of mandamus and injunctive relief requiring the defendants to schedule an alternate examination date so that he can take an examination for promotion to the rank of sergeant. The plaintiff claims that he was unable to take the examination on the date scheduled because of the death of his mother and that the provisions of the City's Classified Service Rules require that he be afforded the opportunity to take the sergeant's examination on an alternate date.
The pleadings and the evidence in this case establish the following facts. On February 10, 2006 the City's Human Resources Division sent the plaintiff a letter admitting him to the written examination for the position of police sergeant to be administered at 5:00 p.m. on Tuesday, March 7, 2006.
On the day prior to the exam, Monday, March 6, 2006, the plaintiff received a phone call from his aunt informing him that his mother in Florida was gravely ill and that her doctors had requested his immediate presence at her bedside. The plaintiff promptly applied for and received emergency leave from his superiors at the police department and flew to Florida later that day to be with his mother.
The plaintiff was with his mother when she died on March 7, 2006. He remained in Florida until March 13, 2006. During that time he was engaged in arranging for the relocation of his disabled aunt from Florida to Connecticut, in arranging for the transportation of his mother's remains to Connecticut for her funeral and internment, and in handling matters relating to the Florida apartment his mother had shared with the plaintiff's aunt. The plaintiff returned to Connecticut on March 13, 2006. His mother's funeral was held in Connecticut on March 15, 2006. Because he had traveled to Florida, the plaintiff was not present when the sergeant's exam was administered at 5:00 p.m. on March 7, 2006.
The plaintiff returned to duty on Tuesday March 21, 2006 and became aware of the provisions of Rule 5.4 of the City's Classified Service Rules. In relevant part, that rule provides:
A. Examinations shall only be held at the designated time and place as specified by the Personnel Director. The only exceptions to the above rule are:
1) Death of an immediate family member (i.e., spouse, child, parent, brother, sister or in-law domiciled with applicant).
. . .
B. Requests for alternate examination dates must be made in writing to the Personnel Director.
On the morning of March 21, 2006, the plaintiff called Maggie Murray, the City's personnel analyst who was assigned responsibility for the administration of the sergeant's exam. He left a voice mail message informing her of his intention to request that he be allowed to take the exam on an alternate date in accordance with the provisions of Rule 5.4. Murray received the plaintiff's message and conferred with her superior, defendant Dennis Murphy, the City's Director of Human Resources. Murray testified that she had recommended that the plaintiff's request be denied for three reasons. First, the exam had been scored and the results were in. Second, an initial eligibility list had been established with the successful candidates ranked. Third, letters with the test results and rankings were due to be sent to the candidates. Defendant Murphy concurred with Murray's recommendations and the plaintiff was orally informed of the decision.
On the afternoon of March 21, 2006, the plaintiff submitted a letter to defendant Murphy officially informing him of his mother's death, explaining how her death had prevented him from taking the sergeant's exam and how the family responsibilities which fell to him prevented him from making an earlier request for an alternate date and requesting an alternate examination date pursuant to the provisions of Rule 5.4A.1. of the City's Classified Service Rules.
On March 22, 2006, defendant Murphy responded to the plaintiff's letter of the previous day. In that letter Murphy denied the plaintiff's request that he be allowed to sit for the sergeant's exam on an alternate date and listed reasons for the denial. Those reasons included: the fourteen-day delay between the date of the exam and the date of the request for an alternative examination date; the claim that the exam results had been determined and made public on March 20, 2006; the claim that the plaintiff's absence from Stamford was not caused by his mother's death but rather by his departure for Florida on the previous day; and the assertion that, if the plaintiff were to "take the test now and score highly, there would be identifiable officers who would be adversely affected." In this regard, Murphy expressed concern over "the impairment of those officer's rights caused by your own great delay." A final reason cited by Murphy was his concern over the integrity of the test arising from any person taking the test on a later date than others.
Murphy's letter also addressed the fact that another officer named Miller had missed the sergeant's exam because one of his parents had, coincidentally, also passed away on the date of the test. Murphy claimed that a relative of officer Miller had informed the Human Resources Division of the death prior to the administration of the exam and requested an alternative examination date. That request was granted "on the strict condition that Officer Miller not discuss the content of the examination with anyone who took the test." Murphy ended his letter to the plaintiff: "I am sorry that after considering and balancing all of the above reasons your request is denied." Murphy did not explain why the same conditions which had been applied in the case of Officer Miller would not also be effective in plaintiff's case.
After being denied the opportunity to take the sergeant's exam on an alternate date, the plaintiff commenced this action against the City, Murphy and the "Human Resources Division of the City of Stamford" claiming that the denial was wrongful and that he had suffered irreparable harm as a result. The plaintiff demanded a temporary and permanent order of mandamus requiring the defendants to administer the sergeant's exam to him and to add his name and score to the eligibility list as warranted by the examination results. The plaintiff also demanded a temporary and permanent injunction prohibiting the defendants from appointing sergeants from the promotion list established after the March 7, 2006 exam and damages.
The defendants filed a motion to dismiss the plaintiff's complaint against the "Human Resources Division of the City of Stamford" claiming that no such entity exists. The motion was opposed by the plaintiff, however, the court's file does not reflect that any action was taken on it. The defendant City and Murphy filed a motion to strike the plaintiff's complaint on the grounds of legal insufficiency and non-joinder. That motion claimed that plaintiff was not entitled to an administrative review of the decision to refuse him the opportunity to take the sergeant's exam and that even if such review were possible, the action required that all police officers who took and passed the exam as well as the police union be made parties to the action. The motion to strike was denied by the court (Tobin, J.) from the bench after it was heard on the short calendar of September 5, 2006.
No evidence was offered at the hearing as to the corporate existence or involvement of the "Human Resources Division of the City of Stamford." On December 15, 2006 after post-trial briefs were filed by the parties, the plaintiff withdrew the action against the "Human Resources Division of the City of Stamford."
The defendants filed an answer on September 19, 2006 admitting that the plaintiff was a patrolman employed by the city; that he was eligible to take the March 7, 2006 sergeant's exam; that he requested an alternate examination date on March 21, 2006; that the request was denied; that Classified Service Rule 5-4 applied and governed the plaintiff's request; and that the promotion list established by the sergeant's examination would likely govern promotions to sergeant for the two years following the date of the exam. The answer denied or left the plaintiff to his proof with respect to the other claims of the complaint including the claims that the denial of an alternate examination date was wrongful and that the plaintiff was entitled to a writ of mandamus.
The defendants' answer also asserted five special defenses. Those defenses were first, that governmental immunity precludes review of Murphy's denial of the plaintiff's request; second, that the promotional list was required to be established no later than March 20, 2006 by terms of bargaining agreement between the City and the Stamford Police Association, the bargaining agent for patrolmen employed by the City; third, that the two-week delay between the date of the examination and the date of the submission of a written request for an alternative date constituted laches; fourth because the plaintiff elected to fly to Florida prior to his mother's death (and therefore would have missed the sergeant's exam anyway) he is estopped from claiming that Murphy lacked the discretion to deny his request for an alternative examination date, and fifth the plaintiff is not entitled to a writ of mandamus or injunctive relief without either making other officers who took and passed the sergeant's examinations parties defendant or giving them notice of the pendency of the action.
The case was heard by the court on November 27, 2006. Thereafter, the parties filed post-hearing briefs. On December 13, 2006, the parties notified the court of their agreement to treat the November 27, 2006 hearing as a final hearing on the merits. Accordingly, the court will address the plaintiff's application for permanent as well as temporary relief.
Murray testified at the hearing admitting that although Officer Miller had not submitted a written request to the defendants as contemplated by Rule 5.4B., he was, nevertheless, allowed to take the sergeant's test on March 14, 2006. She further testified that she had been informed that Officer Miller's parent had died in the Stamford area. Murray and Murphy also testified that the promotion list established by the sergeant's exam would remain in place until 2008 and that the plaintiff's failure to take and pass the exam effectively precludes him for being considered for promotion for two years.
Murray further testified that although the promotion list for police sergeant was originally established on March 20, 2006, the list was subsequently modified as the result of a successful appeal of an exam answer. That modification was not made until October 4, 2006, nearly seven months after the date of the examination and effected the scores of 55 out of the 69 officers who had taken the test.
The defendants claim that the provisions of Rule 5.4 of the City's Classified Service Rules do not impose any duty on the defendant City or its Personnel Director which can be enforced either through a Writ of Mandamus or through injunctive relief. The defendants claim that Rule 5.4 necessarily requires the exercise of discretion by the City's Personnel Director and that such exercise of discretion is not subject to review by the court. The defendants point out that the provision of Rule 5.4B requiring that "[r]equests for alternate examination dates must be made in writing to the Personnel Director" implies that the Personnel Director has the power to either grant the request or to deny it depending on the circumstances and his judgment. The defendants further point out that Rule 5.4 does not set forth a time limit for submitting a request for an alternative examination date. They invite the court to find that the absence of a time limitation in the rule suggests that the Personnel Director was implicitly empowered to reject any application he deemed to be untimely.
The court disagrees with the defendants' interpretation of Rule 5.4.
When a statute or rule is silent as to when an act is to be performed, the law will imply a reasonable time. The Jewish Home for the Elderly v. Cantore, 257 Conn. 531, 778 A.2d 93 (2001); Hartley v. Vitiello, 113 Conn. 74, 79-80, 154 A. 255 (1931); Ely v. Bugbee, 90 Conn. 584, 587-88, 98 A. 121 (1916). Rule 5.4 is obviously intended to address unusual circumstances which prevent a candidate from attending a hiring or promotional examination at the scheduled time. In addition to death of a close relative under subsection 1, Rule 5.4A also covers hospitalization (subsection 2), obvious errors by the personnel department (subsection 3), ordered military service (subsection 4) and double scheduling of examinations (subsection 5). The obvious purpose of the rule is to prevent the prejudice which a candidate may suffer when an exam cannot be taken as scheduled on account of the limited circumstances listed in the rule.
The only general condition attached to the rule is the provision of Rule 5.4B requiring that requests for alternate examination dates be made in writing to the Personnel Director. However, the nature of the five exceptions listed in Rule 5.4A implies that the candidate submitting the request be able to document the existence of the facts supporting his request. These would include, for example, proof of death and relationship, proof of hospitalization, proof of error by the personnel department, copies of miliary orders or proof of double scheduling.
The defendants claim that Rule 5.4A does no more than grant a candidate effected by one of the listed circumstances the right to request an alternate examination date. They claim that the Personnel Director has implied authority to deny, in his unchallenged discretion, any request even if the candidate proves the existence of a listed condition and that the condition prevents the candidate from taking the examination on the scheduled date. The court disagrees. The very nature of the exceptions listed in Rule 5.4A militates against the defendants' interpretation. Each of the circumstances contemplated by Rule 5.4A as justifying an alternate examination date are events whose existence may be established without the exercise of judgment or discretion. For example, the death of a parent, spouse or child (exception 1) can be proven by a death certificate together with either a marriage or birth certificate. Similarly, hospitalization (exception 2) and military orders (exception 4) can be shown by exhibition of appropriate hospital or military records. The remaining exceptions 3 (obvious errors) and 5 (conflicting examination schedule) would undoubtedly be reflected in the Personnel Department's own files. Under these circumstances the court cannot agree with the defendant that the use of the word "request" necessarily implies that the official to which the request is addressed has the unfettered power and right to deny it.
On the contrary the court finds that the nature of the exceptions and the absence of any conflict with any regulatory scheme addressed by City's Classified Service Rules leads to the conclusion that the purposes for which the rule was adopted mandates that timely requests meeting the requirements of Rule 5.4A be granted. See Provencher v. Enfield, 98 Conn.App. 271, 908 A.2d 1126 (2006) in which the court held that a private right of action under a statute could be implied and enforced by a writ of mandamus when it was consistent with the purposes of the statutory scheme.
The evidence in this case established that the plaintiff did not unreasonably delay or postpone his request to be allowed to take the sergeant's examination on an alternate date. The court finds that the concerns stated by Murray and Murphy regarding problems of administering the exam to the plaintiff involved possible inconvenience to their office, rather than compromising the integrity of the testing process or any other prejudice to any legitimate interests of the defendants.
The writ of mandamus is designed to enforce a plain positive duty, upon the application of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy. Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 234-35, 794 A.2d 1016 (2002).
Mandamus is "an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests with the discretion of the court, not an arbitrary discretion exercised as the result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Avalon Bay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004). See also Morris v. Congdon, 277 Conn. 565, 893 A.2d 413 (2006) and Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984).
Here the requisite requirements to establish mandamus have been satisfied by the plaintiff. The plaintiff made a timely application to the defendant personnel director for an alternate examination date when he was unable to take the examination on the date originally scheduled due to the death of his mother, an event listed in Rule 4.5A.1.
The requirements for a party seeking injunctive relief are equally well established. The party has the "burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . ." Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). In this case the plaintiff has demonstrated that the defendants' decision deprived him of the opportunity for promotion for the two years following the sergeant's examination. No evidence was presented to show that the plaintiff had an administrative or legal remedy which he could pursue to vindicate his rights. However, in this case the plaintiff has claimed both a writ of mandamus and injunctive relief in a single count. There are no facts pleaded in that count which would support injunctive relief in the event that mandamus does not lie. Accordingly, the court will consider only such injunctive relief as will necessarily follow the issuance of a writ mandamus.
DEFENDANT'S SPECIAL DEFENSES GOVERNMENTAL IMMUNITY
In their brief the defendants concede that governmental immunity does not defeat an application for a writ of mandamus or for injunctive relief. However, the defendants point out that the plaintiff's complaint also contains a demand for damages and that governmental immunity applies to that claim. At the evidentiary hearing the plaintiff presented no evidence of monetary damages. When the plaintiff agreed that the hearing held on November 27, 2006 would be a final one, the plaintiff effectively abandoned any claim for damages. Under these circumstances the court finds that the defendants' special defense of governmental immunity is moot.
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE DEFENDANT CITY AND THE STAMFORD POLICE ASSOCIATION
In their brief the defendants claim that their second special defense would apply only in the event the plaintiff claims that the defendants abused their discretion in dealing with the plaintiff's request for an alternative examination date. In his complaint and brief, the plaintiff does not assert a claim based on abuse of discretion. Moreover, neither party introduced a relevant collective bargaining agreement into evidence. The court finds that the defendants' second special defense has no application to the claims asserted by the plaintiff.
LACHES
In their third special defense the defendants assert that the plaintiff was guilty of laches for having waited from March 6, 2006 (the day he left Stamford to attend to his dying mother) until March 21, 2006 before applying for an alternate testing date.
"Although the remedy by mandamus is at law, its allowance is governed by equitable principles . . ." Pepe v. McKinney, 170 Conn. 558, 596, 368 A.2d 28 (1976). Accordingly, the defendants were entitled to assert any equitable defenses, including laches, they might have to the plaintiff's action.
"It is a well established rule in equity that if a party is guilty of laches or unreasonable delay in applying for an injunction, he may thereby forfeit his claim to that special form of remedy; and where in such case, by his laches he has made it impossible or very difficult for the court to enjoin his adversary without inflicting great injury thereby, an injunction should be refused . . ." Gage v. Schavoir, 100 Conn. 652, 124 A. 535 (1924); Fisk v. Hartford, 70 Conn. 720, 40 A. 906 (1897) "[L]aches consists of two elements; First there must have been a delay that was inexcusable; and second, the delay must have prejudiced the [party claiming it]." (Internal quotations omitted) Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955).
In this case the evidence does not establish either that the plaintiff's delay in submitting his request for an alternate examination date was inexcusable or that the defendants were in any way prejudiced by the delay. Accordingly, the court finds the issues on the defendants' third special defense for the plaintiff.
ESTOPPEL
The defendants' fourth special defense is a reasoned argument attacking the causal relationship between the death of the plaintiff's mother and his absence from the sergeant's examination administered on March 7, 2006. The defendants claim that since the plaintiff had left Stamford on the day before the examination and presented no evidence of his intention to return in time to take the examination had his mother not died, he cannot now claim that his mother's death was reason he was unable to take the examination. The defendants argue that the plaintiff's absence from the examination on March 7, 2006 was not due to his mothers death on that day, but rather due to the report of her grave illness delivered to the plaintiff the previous day which prompted him to fly to Florida to be at his mother's bedside.
The defendants claim that under such circumstances the plaintiff should be estopped from asserting that defendant Murphy lacked the discretion to interpret and apply Rule 5.4 in a manner unfavorable to the plaintiff. The court rejects the defendants' reasoned argument and concludes that under the circumstances of this case no reasonable person could find that the plaintiff's absence from the sergeant's examination was not causally connected to his mother's death and satisfied the factual prerequisites of Rule 5.4A.1.
The court finds no basis for a finding of estoppel under the facts of this case. Accordingly, the court finds the issues on the defendant's fourth special defense for the plaintiff.
LACK OF NOTICE TO OTHER SERGEANT CANDIDATES
In their fifth special defense the defendants renew the claim, first raised in their motion to strike, that the court should not act on the plaintiff's application without either making all other sergeant candidates parties to the action or at least giving them notice and an opportunity to be heard. The defendants reason that such candidates could be adversely impacted in the event that the plaintiff is allowed to take the sergeant's examination and passes the exam with higher score than other candidates. In asserting this defense the defendants fail to explain how a later revision of the eligibility list would in any way differ from the impact of the revisions made in October 2006, after an appeal with respect to one of the examination answers was upheld. There was no evidence that the officers whose place on the promotion list was adversely impacted as a result of the appeal were required to be given notice of that appeal to enable them to protect any perceived interests in the place on the promotion list. Any prejudice to the interests of such officers would seem to arise more from the failure of the defendants to honor the plaintiff's timely request for an alternate examination date than from any other cause. The court finds no merit to the defendant's fifth special defense.
Although the court did not issue a written opinion in denying the motion to strike, the court necessarily found the defendants had not established the need to either cite in the other sergeant candidates as parties or give them notice. At trial the defendants did not submit any evidence to further support the claims raised in their fifth special defense.
CONCLUSION
The court finds that the plaintiff has established his right to a temporary and permanent writ of mandamus directing the defendants to allow him to take the sergeant's examination on an alternate date pursuant to Rule 5.4A. The court will order injunctive relief only to the extent necessary to aid in the practical enforcement of the plaintiff's rights. Accordingly, the court will order that the defendants score the plaintiff's examination and place his name on the promotion list for sergeant in the position warranted by the results of the examination. The court finds that the plaintiff has not established his right to further injunctive relief or to monetary damages.