Freeman v. First Fire Taxation District of West Haven, No. 4000168 (CT 4/4/2005)
| Decision Date | 04 April 2005 |
| Docket Number | No. 4000168,4000168 |
| Parties | Robert Freeman et al. v. First Fire Taxation District of West Haven, CT et al. Opinion No.: 88266. |
| Court | Connecticut Supreme Court |
This is an action seeking writs of mandamus, money damages and other relief arising out of the refusal of the defendant board of fire commissioners to promote the plaintiff, Robert Freeman, from the rank of captain to deputy chief and to promote the plaintiff, William J. Heffernan III, from the rank of firefighter to lieutenant, within the time period prescribed by a local ordinance. The defendants claim that because of a budgetary shortfall, they were excused from complying with the requirements of the ordinance.
On July 6, 2004, the plaintiffs, Freeman, Heffernan and the West Haven Professional Firefighters, Local 1198, AFL-CIO (union), filed a three-count complaint against the defendants, the First Fire Taxation District (district) and First Fire Taxation District of the Board of Fire Commissioners (board). In count one of the complaint, the plaintiffs allege that Freeman was the next eligible candidate on the list for promotion to the position of deputy chief. They claim that the defendants violated Freeman's right to be promoted because they failed to perform their duty of filling the position within ninety days of the retirement of the previous deputy chief, as required by law. In count two, the plaintiffs allege that Heffernan was the next eligible candidate on the list for promotion to the position of lieutenant. They claim that the defendants violated Heffernan's right to be promoted to the position of lieutenant because they failed to perform the duty of filling the deputy chief vacancy within ninety days, which would have had a domino effect of opening a lieutenant position. In count three, the plaintiffs allege that the defendants' failure to fill the deputy chief position directly violated the rights of the members of the union. The plaintiffs seek a writ of mandamus compelling the defendants to fill the deputy chief position and a writ of mandamus compelling the defendants to extend the expiration date of the lieutenant's examination promotional list until the other vacancies created by filling the deputy chief position are filled.
In their answer, the defendants admit that Freeman and Heffernan were the next eligible candidates on the respective promotional lists for the positions of deputy chief and lieutenant, respectively, and that the defendants have not appointed a deputy chief since the previous deputy chief retired. They deny, however, that they violated the plaintiffs' rights. In addition, the defendants allege, as special defenses, that: (1) the conduct on which the complaint is premised is within the board's discretion as the district's chief financial officer charged with oversight responsibility for the district's finances; (2) that the plaintiffs do not have a clear legal right to have the defendants perform the duties they seek to enforce; and (3) that Heffernan failed to exhaust his administrative remedies.
The case was tried to the court. Following the trial, the parties submitted briefs. The court finds the following facts.1 The district is a quasi-municipal corporation established pursuant to General Statutes (Rev. 1972) §7-324 et seq. for the purpose of extinguishing fires within the city of West Haven. The district is governed by a three-person elected board of fire commissioners which has the general management and control of the fire department. The board is authorized to appoint a chief and lesser officers. The appointment and promotion of all members of the permanent staff of the fire department is made by the board from eligibility lists established after competitive examinations. Pursuant to Chapter IV §1(d) of the home rule ordinance of the First Fire Taxation District of the city of West Haven (ordinance) vacancies in positions within the department must be filled within ninety days with the person who has attained the highest grade on the examination, if an eligibility list exists.
Freeman is a captain in the fire department and has been employed by the district for twenty-nine years. At all times relevant hereto, he has been the only person on the eligibility list for the position of deputy chief. Heffernan is a firefighter in the department and has been so employed for thirteen years. Between 2002 and 2004, he was the highest ranking firefighter on the eligibility list for promotion to the position of lieutenant. That list expired on July 11, 2004.
The union is an employee organization as defined by the Municipal Employee Relations Act (MERA); General Statutes §7-460 et seq; and is the exclusive bargaining agent for all uniformed and investigatory positions within the West Haven fire department, except the positions of chief and deputy chief. Freeman and Heffernan are both dues paying members in good standing with the union.
William Johnson has been chief of the West Haven fire department for twenty-three years. The chief answers directly to the board and is responsible for the day-to-day administrative, financial and operational functions of the fire department. Included in the chief's duties is assisting the board with the preparation of the proposed annual budget. Under the ordinance, the board submits a budget to the taxpayers of the district for their approval at an annual town meeting at which a tax is laid and the tax rate fixed. The town meeting, which the board is required to hold, must be held not less than thirty days prior to the beginning of the annual July 1 fiscal year. See General Statutes §§7-327(c), 7-380, 7-381.
In late 2002, John Patry, then deputy chief of operations of the fire department, informed Johnson that he was considering retiring from the department. Johnson encouraged Patry not to resign and to give the matter further consideration. In early December 2002, however, Patry decided to resign and informed Johnson and the board of his decision. On December 31, 2003, he submitted a letter of resignation, which was effective January 3, 2003. On his retirement, Patry was entitled to the payment of $63,538.99 in terminal leave pay, a combination of unpaid, accumulated sick time and vacation time.
Patry's retirement created a vacancy in the position of deputy chief of operations. As the only person on the eligibility list for deputy chief, Freeman normally would have been promoted to that position within ninety days. He was not.
Johnson and the board were surprised that Patry retired when he did, after only fourteen months in the position of deputy chief of operations. His retirement came in a fiscal year when the district was having financial difficulty. Johnson and the board were concerned that Patry's terminal leave pay and his pension payments, together with the salary of a promoted deputy chief, would aggravate the district's financial problem. Johnson recommended that the board not promote Freeman until the next fiscal year so that funds budgeted for the deputy chief's salary for the second half of fiscal year 2002-2003 could be transferred to the terminal leave and pension accounts to help cover Patry's terminal leave and pension payments.
The board followed Johnson's recommendations. It expected, however, that it would promote Freeman at the beginning of the new fiscal year, on July 2003. If Freeman had been promoted to deputy chief at that time, a competitive examination would have been held for the position of captain,2 the lieutenant first ranking on the eligibility list resulting from that examination would have been promoted to captain, and Heffernan would have been promoted to lieutenant no later than January 2004.
Early in 2003, the board and the union were engaged in negotiations for a new collective bargaining agreement. The existing collective bargaining agreement expired by its terms on June 30, 2003.3 In March 2003, during these negotiations, the union demanded that the position of deputy chief be included in the bargaining unit. The board has vehemently opposed such a demand and would seek to abolish the position of deputy chief if, by binding arbitration, the position were placed in the bargaining unit. If the union had not made such a demand, or had promptly withdrawn it, the board would have promoted Freeman and Heffernan.
The union, however, did not withdraw its demand prior to the adoption of the 2003-2004 budget. The board nonetheless anticipated that the issue would be resolved in its favor by negotiation or mediation during the first half of the new fiscal year. The 2003-2004 budget, which the Board proposed and the taxpayers adopted at the annual town meeting, appropriated monies for the position of deputy chief for only half of the fiscal year. The board planned to use these monies to pay Freeman when he was promoted after the first half of the new fiscal year, in January 2004, after the union had withdrawn its demand. However, the issue of whether the position of deputy chief should be included in the bargaining unit has never been withdrawn by the union or otherwise resolved. Neither Freeman nor Heffernan have been promoted to date.
When the board failed to promote Freeman to deputy chief, he contacted the union president and a member of executive board to discuss the filing of a grievance. Freeman was advised that the union would not file a grievance on his behalf because the position of deputy chief was not within the bargaining unit. Moreover, Freeman could not file a grievance on his own because, under the collective bargaining agreement, only the union may file a grievance. As a result of not being promoted to deputy chief, Freeman has sustained a loss in salary and paid vacation and sick time.
When he was not promoted to lieutenant, Heffernan also requested that the union file a grievance on his behalf. The union refused to...
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