Connecticut State Emp. Ass'n, Inc. v. Connecticut Personnel Policy Bd.

• Decision Date: 21 November 1973
• Citation: 165 Conn. 448,334 A.2d 909
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT STATE EMPLOYEES ASSOCIATION, INC., et al. v. CONNECTICUT PERSONNEL POLICY BOARD et al.

Page 909

334 A.2d 909

165 Conn. 448

CONNECTICUT STATE EMPLOYEES ASSOCIATION, INC., et al. v. CONNECTICUT PERSONNEL POLICY BOARD et al.

Supreme Court of Connecticut.

Nov. 21, 1973.

Barry Scheinberg, Hartford, with whom, on the brief, was Robert M. Bourke, Bloomfield, for appellants (plaintiffs).

Sidney D. Giber, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., and F. Michael Ahern, Asst. Atty. Gen., for appellees (defendants).

Before HOUSE, C.J., and COTTER, SHAPIRO, LOISELLE and BOGDANSKI, JJ.

COTTER, Associate Justice.

The plaintiffs-the Connecticut State Employees Association, Inc.; its chartered affiliate chapter 174, a voluntary association whose membership consists exclusively of members of the Connecticut state police department; Charles L. Wilkerson; and George R. McMahon-brought this action seeking both injunctive relief against Edward H. Simpson, personnel commissioner, and Cleveland B. Fuessenich, commissioner of state police, and a declaratory judgment to determine whether certain actions taken by the defendants-the members of the Connecticut personnel policy board named in their representative capacities and the personnel policy board, a statutorily-created board; General Statutes § 5-200; responsible for establishing policies for the personnel administration of state employees-were in violation of the notice, petition, hearing, and approval provisions of the Uniform Administrative Procedure Act, hereinafter UAPA, chapter 54 of the General Statutes. The court issued an order to show cause; the defendants filed a special appearance and a motion to erase on the grounds: (1) that the action of the personnel policy board was the implementation of § 5-206 of the General Statutes and was not the promulgation of regulations, and (2) that there is no statutory appeal from the action of the board to the court. The court granted the motion to erase and the plaintiffs took an appeal from the judgment rendered in favor of the defendants.

The present dispute arose when the personnel policy board on September 21, 1972, adopted item 7487C which cancelled the specifications for the class entitled state police trooper and established two classes: (1) a state police trooper trainee, and (2) a state police trooper with new specifications reducing the qualifications formerly required of applicants in the categories of age, physical requirements and formal education. The plaintiffs allege that the adoption of item 7487C is invalid because the board acted as a state agency promulgating regulations, and as such was subject to the mandate of General Statutes §§ 4-167 to 4-170 and 4-172 of the UAPA. Specifically, the plaintiffs claim that the board, pursuant to the UAPA, was required to 'adopt as a regulation a description of its organization, method of operations, rules of procedure,' provide twenty days notice of its actions in the statutorily prescribed manner, grant interested parties a reasonable opportunity to be heard if requested by twenty-five persons, submit the proposed regulations to the attorney general and legislative regulation review committee and, following the above procedure, file two certified copies of the regulations with the secretary of the state. The defendants contend that the provisions of the UAPA are inapplicable to the adoption of item 7487C because the action of the board was an implementation of General Statutes § 5-206 which concerns position classifications established by the personnel policy board, not the promulgation of regulations by a state agency, and, therefore, a court appeal was precluded. They argue further that even if the UAPA were applicable to the adoption of item 7487C, the subsequent passage of Public Acts 1973, No. 73-620 § 16 ¹ by the General Assembly validated the action of the personnel policy board.

The plaintiffs' position is that the board violated their rights under the UAPA because they contend its action was the promulgation of regulations. We must, therefore, decide the effect of the 1973 validating act upon an agency or board admittedly subject to the provisions of the UAPA and upon parties seeking a declaratory judgment under General Statutes § 4-175, prior to a resolution of the issue whether the personnel policy board is a state agency promulgating regulations within the meaning of the UAPA.

The plaintiffs' claimed right to seek a declaratory judgment under the UAPA necessarily involves the jurisdiction of the court. The question of jurisdiction may be raised at any time and once raised we must consider it on appeal. State ex rel. Kelman v. Schaffer, 161 Conn. 522 527, 290 A.2d 327; Riley v. Liquor Control Commission, 153 Conn. 242, 248, 215 A.2d 402. A motion to erase should be granted only where want of jurisdiction clearly appears on the face of the record. Karp v. Urban Redevelopment Commission, 162 Conn. 525, 526, 294 A.2d 633. In determining whether a court lacks jurisdiction under a motion to erase, as in any action, this court takes judicial notice of a legislative enactment by the General Assembly. Rusch v. Cox, 130 Conn. 26, 33, 31 A.2d 457.

Jurisdiction pursuant to § 4-175, which specifically provides for a declaratory judgment under the UAPA depends on whether the plaintiffs' rights or privileges have been threatened or impaired. The determination of this question is based upon the allegations in the complaint that 'the plaintiffs are aggrieved in that they have been denied their rights to notice, petition and hearing as provided by the legislature through its vehicle, . . . Public Act 854.' ² If the subsequent legislative enactment; Public Acts 1973, No. 73-620 § 16; validated the actions of the board which failed to comply with provisions whose nonobservance is the basis of the plaintiffs' aggrievement, then, in the absence of other such claims, a statutory prerequisite necessary to the court's jurisdiction would be lacking.

The validating act provides that it 'shall apply' to all agency ³ actions taken between January 1, 1972, and its effective date, June 11, 1973, and that the section shall not be deemed to validate actions taken by state agencies after July 1, 1973, which are invalid under any section of the UAPA as amended. The significant language of Public Acts 1973, No. 73-620 § 16, is that which declares that no agency regulation shall be deemed ineffective or invalid solely because of noncompliance with any requirement of §§ 4-167, 4-168, 4-177 or 4-178 of the original UAPA. (Emphasis added.) Briefly, these sections involve the adoption of organizational rules and regulations, their promulgation, the hearing procedure in contested cases and the admission of evidence in contested cases. The plaintiffs claim to be aggrieved by the failure of the personnel policy board to comply with §§ 4-167 to 4-170 and 4-172. The latter three sections are not specifically dealt with by the validating act. However, the necessity of compliance with §§ 4-169 and 4-170 is a requirement of § 4-168, ⁴ with which noncompliance has been waived by the validating act. Section 4-172 merely requires the filing of certified copies of regulations with the secretary of the state after 'approval as required by sections 4-169 and 170,' which would require compliance only after the observance of the previously described sections.

A reasonable construction of the UAPA leads to the conclusion that the sections of it cited by the plaintiffs but not specifically referred to by the validating act were so interrelated to the sections designated by the above statute that noncompliance with these sections was also validated by Public Acts 1973, No. 73-620 § 16. The parts of a statute must be construed, so far as possible, as operative and harmonious with every other part. Kerin v. Goldfarb, 160 Conn. 463, 467, 280 A.2d 143. This construction of the UAPA is supported by the clearly expressed intent of the validating act '. . . to provide additional time to agencies . . . to adopt rules of practice and other necessary regulations . . . and . . . to validate the enumerated activities of state agencies during said period . . .' Such an interpretation of the meaning of the UAPA and its reconciliation with the validating act lead to the conclusion that this is not a situation wherein that statute is being utilized to validate actions under other sections of the UAPA, as proscribed by the statute. ⁵

The effect of validating acts is to make legal and regular that which was illegal and irregular. The legislature may cure by subsequent enactment the nonobservance of a requirement which it originally might have dispensed with, provided that vested rights have not intervened. Sanger v. Bridgeport, 124 Conn. 183, 187, 198 A. 746. Such an enactment may be applied retrospectively to pending cases. Whethersfield v. National Fire Ins. Co., 145 Conn....