Carleton v. Civil Service Com'n of City of Bridgeport

• Decision Date: 17 March 1987
• Docket Number: No. 4710,4710
• Citation: 522 A.2d 825,10 Conn.App. 209
• Court: Connecticut Court of Appeals
• Parties: James CARLETON v. CIVIL SERVICE COMMISSION OF the CITY OF BRIDGEPORT et al.

Page 825

522 A.2d 825

10 Conn.App. 209

James CARLETON v. CIVIL SERVICE COMMISSION OF the CITY OF BRIDGEPORT et al.

No. 4710.

Appellate Court of Connecticut.

Submitted on briefs Oct. 24, 1986.

Decided March 17, 1987.

Stephen F. Donahue, filed a brief, for appellant (defendant Louis Renkavinsky).

Gregory P. Lynch and J. Kevin Golger, filed a brief, for appellee (plaintiff).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

BIELUCH, Judge.

The defendant ¹ appeals from a judgment for the plaintiff in this quo warranto proceeding brought against the city of Bridgeport civil service commission (commission) and its superintendent of treatment plants, Louis Renkavinsky. The defendant claims that the trial court erred (1) in finding that the position of superintendent of treatment plants was a public office for purposes of a quo warranto action, (2) in finding that the plaintiff had standing to bring this action, and (3) in finding that the defendant could be ousted from his position after his permanent certification to it. We find no error.

The following facts found by the trial court are not in dispute. An open competitive examination was conducted by the commission for the position of superintendent of treatment plants for the city of Bridgeport. Louis Renkavinsky received a grade of 93.6 percent, the highest score on this exam. On April 27, 1984, he was temporarily certified to the position. Following a six month probationary period, Renkavinsky was permanently certified to the position.

The plaintiff had also taken the examination and obtained the second highest score, 89.4 percent, on the test. On May 21, 1984, during the defendant's probationary period, the plaintiff brought a mandamus action against the commission, in which Renkavinsky intervened, requesting that the commission add five points to his rating for a total and leading score of 94.4 percent, under the provisions of General Statutes § 7-415 ² allowing such credit to veterans for wartime service. The trial court granted the relief requested by the plaintiff and five points were added to the plaintiff's score, thereby giving him the highest overall score on the test. No appeal was taken from that decision by either the commission or Renkavinsky. The commission, however, thereafter refused to certify the plaintiff to the position of superintendent.

The plaintiff then commenced this quo warranto action, requesting that the commission and Renkavinsky establish the latter's legal right to the office of superintendent of treatment plants. The trial court found that the position of superintendent of treatment plants was a public office. Therefore, the incumbency of that office was subject to challenge by a quo warranto proceeding. It also found that Renkavinsky was not appointed in accordance with the requirements of the law. Consequently, his certification to that position was invalid. It concluded by finding that Renkavinsky held his position de facto, rather than de jure, and that the office or position of superintendent was vacant.

The defendant's first claim is that the trial court erred in finding that the position of superintendent was a public office for purposes of a quo warranto proceeding. ³ An action in the nature of quo warranto may be brought to challenge a person's legal authority to hold public office. State ex rel. Neal v. Brethauer, 83 Conn. 143, 145-46, 75 A. 705 (1910). It may not be used to challenge the appointment of a mere governmental employee. Id., 146-47, 75 A. 705; see 17 E. McQuillin, Municipal Corporations (3d Ed.Rev.) § 50.07.

In order for a governmental position to constitute a public office falling under the quo warranto statute, two conditions must exist: (1) it must have its source in a sovereign authority speaking through the constitution or legislation; and (2) its incumbent, by virtue of his incumbency, must be invested with some portion of the sovereign power which he is to exercise for the benefit of the public. State ex rel. Neal v. Brethauer, supra, 146, 75 A. 705. The trial court found that "[t]he obligation to provide for sewage disposal and, therefore, treatment thereof, is fixed upon the City of Bridgeport by obligation from the state, pursuant to its charter." General Statute § 7-148(c) provides that "[a]ny 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: ... (6)(B)(i) Lay out, construct, reconstruct, repair, maintain, operate, alter, extend and discontinue sewer and drainage systems and sewage disposal plants...." The duties prescribed for the superintendent of treatment plants and specified in the notice of open competitive examination by the commission were as follows: "Responsible supervision of the administration, operation and maintenance of the entire sewerage system, including the treatment plants. Exercises direct authority over all plant functions and system personnel, in accordance with approved policies and procedures."

The defendant argues that the position of the superintendent of treatment plants is not provided for in the city charter and is, therefore, not a public office. We disagree with this argument. The failure of a position to be enumerated specifically in a city charter does not require the conclusion that such position is not a public office. All that is required is that the powers and duties of the position have their source in sovereign authority and that such position be invested with some portion of such sovereign power to be expended for the benefit of the public. State ex rel. Neal v. Brethauer, supra. The powers exercised by the superintendent of treatment plants are exercisable because of the authority imposed by the state upon the municipality pursuant to General Statutes § 7-148(c)(6)(B)(i). The trial court found that the office was responsible for the supervision of administration and operation of the entire sewage system, including treatment plants. Its duties also included direct authority over all plant functions and system personnel in accordance with approved policies and procedures.

We agree with the trial court's conclusion that the position of superintendent constitutes a public office for the purpose of a quo warranto action. See, e.g., Beccia v. Waterbury, 192 Conn. 127, 470 A.2d 1202 (1984) (Beccia II ) (fire marshal); Cheshire v. McKenney, 182 Conn. 253, 438 A.2d 88 (1980) (town councilman); State ex rel. Gaski v. Basile, 174 Conn. 36, 381 A.2d 547 (1977) (fire chief); State ex rel. Giusti v. Barbino, 170 Conn. 113, 365 A.2d 408 (1976) (members of municipal boards).

The second issue is whether the trial court erred in finding that the plaintiff had standing to bring this action. The defendant argues that an individual is not entitled to the remedy of quo warranto where that individual lacks a clear and immediate right to the position in question. In support of this argument, he cites Andrews v. New Haven, 153 Conn. 156, 215 A.2d 102 (1965) (writ of mandamus); and Chambers v. New Haven, 31 Conn.Sup. 362, 331 A.2d 347 (1974) (permanent injunction). Neither case involved a quo warranto proceeding. They are, therefore, inapposite to the question now under consideration.

Underlying the defendant's claim is his contention that the examination should have been "promotional" rather than "open competitive." He maintains that the plaintiff lacks a clear and immediate right to the position because he was not a legitimate candidate for a "promotional" examination as there were two or more persons of inferior rank within the department who were eligible and who had applied for this test. ⁴ This argument is without merit and misconstrues the nature of a quo warranto proceeding. A quo warranto action seeks to oust an illegal incumbent from public office, not to induct a rightful claimant into the office. A successful action in quo warranto ousts the wrongful office holder and declares the position vacant. Once the quo warranto action declares the contested office vacant, a claimant may then proceed in mandamus to seek his own appointment to the position if he can establish his own clear legal right thereto. Beccia v. Waterbury, 185 Conn. 445, 456-57, 441 A.2d 131 (1981) (Beccia...