Cislo v. City of Shelton

Decision Date06 October 1978
Docket NumberNo. 518,518
Citation405 A.2d 84,35 Conn.Supp. 645
CourtConnecticut Superior Court
PartiesAlexander CISLO et al. v. CITY OF SHELTON et al.

John H. Welch, Shelton, for appellant (defendant George F. regan).

Donald T. Massey, for appellees (plaintiffs).

ARTHUR H. HEALEY, Chief Judge.

The two plaintiffs, who were police officers of the defendant city of Shelton 1 (hereinafter Shelton), brought this action against Francis X. Kelley (hereinafter Kelley) as the chief executive officer of Shelton and against George F. Regan (hereinafter Regan) as chief of the police department of Shelton. This action arose out of the dismissal of the plaintiffs from the Shelton police department. In their complaint, they seek a writ of mandamus ordering the defendants "to obey and implement the decision of the Public Employees Appeals Board (hereinafter PEAB) by reinstating the Plaintiffs . . . to their positions as police officers in the City of Shelton Police Department." The trial court ordered that a writ in the nature of mandamus issue requiring the defendants Kelley and Regan to obey the decision of the PEAB. The defendants have appealed from that judgment. 2

The finding discloses the following facts: The defendant Kelley was the duly elected chief executive officer of Shelton and the defendant Regan was the duly appointed chief of police of Shelton. Prior to December 19, 1975, both plaintiffs were employed as police officers in the police department at Shelton. On December 19, 1975, the plaintiffs were dismissed from the police department by the defendant Regan for making contributions to a political party in violation of § 9.4 3 of the Shelton city charter, and in violation of article 13 4 of the Shelton city ordinance entitled, "Personnel Rules and Merit Systems." Later that same day the plaintiffs began the first step of the grievance procedure provided under a collective bargaining agreement 5 then in effect between Shelton and Teamsters Local Union No. 145 by filing labor grievance number 41 alleging violation of the union contract. The grievance procedures which are set out in that collective bargaining agreement are still in effect. On December 27, 1975, Regan instituted the second step of the grievance procedure by denying the grievance filed by the plaintiffs. Thereafter, the only remaining step of the grievance procedure under the collective bargaining agreement was the referral of the grievance to the Connecticut board of arbitration and mediation. On January 6, 1976, the plaintiffs withdrew labor grievance number 41.

The plaintiffs then filed an appeal with the PEAB, which was established by § 5.3.3 6 of the Shelton city charter. Pursuant to § 5.3.3, the decision of the PEAB is final unless within ten days of the receipt of the decision the mayor shall submit a different decision in writing to the PEAB, in which event the decision of the mayor shall be final unless within ten days the PEAB shall reaffirm its original decision in writing after the affirmative vote of at least four of its members. On January 7, 1976, the PEAB heard the appeal of the plaintiffs from their dismissal, and, at its meeting on that date, it voted to order the reinstatement of the plaintiffs. On January 19, 1976, Kelley, as mayor of Shelton, was officially notified of the PEAB's decision and, within ten days of this notification, he issued a decision different from that rendered by the PEAB. On January 30, 1976, the PEAB voted to reaffirm its original decision to reinstate the plaintiffs to their positions as members of the Shelton police department. On January 31, 1976, Kelley was notified of the PEAB's reaffirmation of its decision. On or about February 1, 1976, the plaintiffs requested that the PEAB's decision be effectuated immediately and that they be reinstated. Kelley and Regan refused to implement the PEAB's decision. The plaintiffs followed all of the required procedural steps in a timely fashion.

In their assignment of errors the defendants attack the trial court's conclusions as not supported by the facts found. 7 The conclusions of the court are to be tested by the findings and not by the evidence. Weingarten v. Allstate Ins. Co., 169 Conn. 502, 504, 363 A.2d 1055. "A conclusion must stand unless it is legally or logically inconsistent with the facts found or unless it involves the application of some erroneous rule of law." Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92, 95.

At oral argument and in their brief, the defendants set forth three arguments in support of their position: (1) The trial court had no jurisdiction over the subject matter of the action; (2) § 5.3.3 of the Shelton city charter, providing for the creation of the PEAB, is invalid because it is in conflict with the General Statutes; and (3) the trial court abused its discretion in granting the writ of mandamus that the plaintiffs requested.

I

The defendants' claim that the court had no jurisdiction over the subject matter of this action must be disposed of no matter when it was raised. Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711. Unlike jurisdiction over the person, subject matter jurisdiction cannot be waived or acquired by consent. State v. Jones, 166 Conn. 620, 627-28, 353 A.2d 764. The defendants argue that although the question of political activity cannot enter into the negotiations leading to the collective bargaining agreement, once the agreement is reached the question of what is subject to arbitration is for the arbitrators to decide under the "broad and all-embracing language of the (c)ontract." They maintain that the controversy in question was an arbitrable matter under the contract, that the grievance procedures set out therein had to be followed, and that because they were not, the plaintiffs have not exhausted their administrative remedies. Therefore, they claim that the court had no subject matter jurisdiction. They argue that because the agreement contains no exclusions from arbitrability, the broad language of the arbitration clause indicates that all controversies are therefore arbitrable.

The plaintiffs claim that the controversy bringing about their dismissal was not a "grievance" as defined in the contract and that state law prohibits any municipal charter provisions concerning political activity by municipal employees from being the subject of collective bargaining, which law, they claim, the contracting parties must be presumed to have had in mind. The plaintiffs go on to assert that inasmuch as the political activity prohibition was not properly a part of the collective bargaining agreement, any alleged violations of it could not constitute a breach of the agreement. Consequently, they conclude that their subsequent attempts to vindicate their legal rights did not have to be pursued through the grievance procedure described in that agreement.

Under certain portions of chapter 113 of the General Statutes, collective bargaining between a municipality and its employees is provided for General Statutes §§ 7-467-7-479. Section 7-474(f) provides in part: "Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7-467 to 7-477, inclusive, On matters appropriate to collective bargaining, as defined in said sections, and any charter special act, ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission . . . the terms of such agreement shall prevail . . .." (Emphasis added.) Section 7-474(g) provides, in part, that "any provision of any municipal charter Concerning political activity of municipal employees shall not be subject to collective bargaining." (Emphasis added.) It is apparent that the legislature, in utilizing the language that it did, clearly indicated that certain matters are not appropriate to collective bargaining, and specifically intended that municipal charter provisions concerning political activity "shall not" be subject to collective bargaining. The intent is clear and is found not in what the legislature meant to say, but in the meaning of what it did say. See Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167. These statutes were in effect at all times relevant to this case and the parties are presumed to have had them in mind. Statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. Ciarleglio v. Benedict & Co., 127 Conn. 291, 293, 16 A.2d 593; see 17 Am.Jur.2d, Contracts § 257. Many years ago the United States Supreme Court said: "It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement." Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 550, 18 L.Ed. 403.

Section 9.4 of the Shelton city charter prohibits political activity, an activity which cannot be the subject of collective bargaining under the enabling statutes that permit collective bargaining agreements between a municipality and its employees. Therefore, the plaintiffs' dismissal for alleged political activity in violation of the charter cannot be construed as a grievance that was required to be subjected to binding arbitration as provided for in the collective bargaining agreement. This case cannot be said to come within the rule that specific designation of arbitrable matters is unnecessary where the language of the arbitration clause indicates an intention of the parties to include all controversies which may arise under the principal...

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  • Hartford Principals' and Supervisors' Ass'n v. Shedd
    • United States
    • Connecticut Supreme Court
    • March 10, 1987
    ...over the subject matter. See School Administrators Assn. v. Dow, 200 Conn. 376, 382-83, 511 A.2d 1012 (1986); Cislo v. Shelton, 35 Conn.Sup. 645, 650, 405 A.2d 84 (1978). The agreement between the board and the union provided, in article V, § C, that "[i]n the event a grievance involving th......
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    • Connecticut Supreme Court
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    ...discharge, and enforcement.' Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 550, 18 L.Ed. 403 (1866); see Cislo v. Shelton, 35 Conn.Supp. 645, 652, 405 A.2d 84 (1978)." All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 199, 567 A.2d 1156 (1989); accord 17A Am.Jur.2d 357-59......
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    • December 5, 1989
    ...discharge, and enforcement." Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 550, 18 L.Ed. 403 (1866); see Cislo v. Shelton, 35 Conn.Supp. 645, 652, 405 A.2d 84 (1978). All Brand, doing business in Connecticut, is subject to this principle. Therefore, our stock corporation statute, particular......
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    • United States
    • Connecticut Supreme Court
    • July 8, 1986
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