Honulik v. Town of Greenwich

• Decision Date: 13 October 2009
• Docket Number: No. 18046.,18046.
• Citation: 980 A.2d 880,293 Conn. 698
• Court: Connecticut Supreme Court
• Parties: F. Gary HONULIK v. TOWN OF GREENWICH et al.

980 A.2d 880

293 Conn. 698

F. Gary HONULIK v. TOWN OF GREENWICH et al.

No. 18046.

Supreme Court of Connecticut.

Argued April 15, 2008.

Decided October 13, 2009.

Sheila A. Huddleston, with whom were Fernando F. de Arango, assistant town attorney, Robin G. Frederick and, on the brief, John Wayne Fox, town attorney, Jill M. O'Toole and Laurie A. Sullivan, Hartford, for the appellants-appellees (named defendant et al.).

William J. Kupinse, Jr., Bridgeport, with whom, on the brief, was Andrew M. McPherson, for the appellee-appellant (defendant Michael A. Pacewicz).

Kathryn Emmett, with whom was Christine Caulfield, Stamford, for the appellee-appellant (plaintiff).

Kevin M. Greco, Stamford, filed a brief for the Silver Shield Association as amicus curiae.

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE, ZARELLA, SCHALLER and McLACHLAN, Js.^*

SCHALLER, J.

This case comes to us on a motion for reconsideration en banc, filed by the plaintiff, F. Gary Honulik, from our decision in Honulik v. Greenwich, 290 Conn. 421, 963 A.2d 979 (2009).¹ The dispositive issue in this appeal is whether the collective bargaining agreement (agreement) between the named defendant, the town of Greenwich (town), and the Silver Shield Association,² the union representing the town's police officers (union), governs the promotion to the position of police captain, which is a position outside the bargaining unit, and requires that the candidate with the highest assessment score on a promotional examination be awarded the promotion. The defendants, the town and certain city officials,³ appeal⁴ from the judgment of the trial court in favor of the plaintiff, concluding that the town breached its agreement with the union and deprived the plaintiff of his property interest in the promotion without due process of law when it passed over the plaintiff for promotion to police captain despite the fact that the plaintiff had received the highest assessment score on the examination. On appeal, the defendants claim that: (1) because the position of police captain is outside the bargaining unit, the town had discretion to promote any candidate from the promotional list irrespective of their ranking according to examination score; and (2) because the town has discretion to hire out of rank order, it did not deprive the plaintiff of his property interest without due process of law. We agree, and therefore reverse the judgment of the trial court.⁵

The following facts and procedural history are relevant to our resolution of the present appeal. On April 4, 2003, the town announced that an examination would be administered to fill a vacancy for the position of police captain in the town police department. The announcement stated that the examination would be "100 [percent]—Assessment Center." In an assessment center examination, independent assessors evaluate a candidate's qualifications through a variety of testing procedures including role-playing, written examinations and interviews. The agreement between the town and the union, in part, limits the potential pool of applicants eligible for promotion to police captain—and therefore eligible to take the examination—to members of the bargaining unit protected under the agreement.⁶ Five lieutenants from the town police department, including the plaintiff, took the examination. Pursuant to the town's personnel policy and procedures manual (policy manual) and classification and pay plan (pay plan),⁷ Alfred C. Cava, the town's director of human resources, certified a promotional list that ranked the applicants' examination scores from highest to lowest.⁸ The plaintiff received the highest score and the defendant Michael A. Pacewicz received the second highest score.⁹ Prior to the subject vacancy James A. Walters, the town's police chief, had not been called upon to make any promotions to the captain's position. Six days after the examination, Walters announced that he would conduct a postexamination interview.¹⁰ Walters interviewed only the plaintiff and Pacewicz. Each interview was brief and consisted of a few questions. Thereafter Walters notified each applicant that he had decided to promote Pacewicz to police captain.¹¹

Subsequent to Walters' decision to promote Pacewicz, the union brought an action to enjoin the promotion temporarily. After the trial court denied the ex parte injunction and scheduled a hearing for July 1, 2003, the town officially promoted Pacewicz to police captain.¹² The plaintiff and the union filed a grievance alleging that Pacewicz' promotion violated a provision of the agreement entitled the "Past Practices Clause."¹³ After the town denied the grievance, the union sought to arbitrate the matter before the state board of mediation and arbitration (board), but the board found that the grievance was not arbitrable because the position of police captain was not within the bargaining unit and the promotional process for that position was therefore outside the scope of the agreement.

The plaintiff then filed this action against the defendants, bringing claims for breach of contract, promissory estoppel, quo warranto and mandamus, as well as for violations of the plaintiff's right to due process and equal protection under the federal and state constitutions.¹⁴ On September 4, 2007, the trial court concluded that, by failing to promote the plaintiff, the town had breached the agreement and that the town, Walters and Cava had deprived the plaintiff of his property interest in the promotion without due process. Specifically, the court concluded that the agreement governed the promotional process. The court relied on paragraph D of article XXV of the agreement (paragraph D), to conclude that because, at the time of the examination, the plaintiff was still a lieutenant—and, therefore, still a member of the bargaining unit—he remained protected by the terms of the agreement. In determining what, exactly, the agreement required, the trial court relied on the testimony of numerous witnesses to conclude that it was the past practice of the town to promote the candidate with the highest assessment score. In turn, the trial court concluded that the past practices clause of the agreement required the town to promote the plaintiff, and that the town breached the agreement when it failed to do so. With respect to the plaintiff's due process claim, the trial court relied on its conclusion that the agreement governs the promotional process to conclude that "promotion to [police captain] must be given to the officer who has been certified to the promotional list and who has the highest numerical rank.... No other factors are involved in the decision...." Accordingly, the trial court ruled that the plaintiff had a constitutionally protected property interest in the promotion, and that by failing to promote the plaintiff, the town, Walters and Cava deprived him of his property interest in the promotion without due process of law.

On the basis of these findings, the trial court granted quo warranto and mandamus relief, ordering that Pacewicz be removed from the position of police captain and that the plaintiff be promoted to that position. In addition, the trial court awarded the plaintiff $71,506.66 in back pay and prejudgment interest and $3450 for the loss of the use of a vehicle, which the town provides to all captains. Moreover, with respect to the plaintiff's due process claim, the trial court awarded attorney's fees pursuant to 42 U.S.C. § 1988(b). The trial court, however, denied the plaintiff's promissory estoppel and equal protection claims. Subsequent to trial, both the plaintiff and Pacewicz filed motions to open and modify the judgment. The trial court denied Pacewicz' motion to open and the plaintiff's motion to open with respect to compensatory and punitive damages pursuant to 42 U.S.C. § 1983, but granted the plaintiff's motion to open in order to increase the award for loss of the use of a vehicle from $3450 to $19,448. The court also awarded attorney's fees of $249,082.50 and costs of $32,066.01. The town, Walters and Cava appealed from the judgment of the trial court. Both Pacewicz and the plaintiff filed cross appeals.¹⁵

I

The crux of this appeal is whether any provision within the agreement or any other applicable town document requires the town to promote the candidate with the highest ranked score to the position of police captain, or whether the town has discretion to promote any eligible candidate. The plaintiff claims that the trial court properly determined that the town's past practices required the town to promote the candidate with the highest examination score, whereas the town claims that the past practices clause of the agreement is inapplicable because the captain's position is outside the bargaining unit. Instead, the town contends that paragraph D of the agreement specifically addresses the promotion of a bargaining unit employee to the position of captain, and permits the town to promote any bargaining unit member who is certified to the promotional list irrespective of rank order, which the town refers to as the rule of the list. We agree.

In order to illuminate the basis of the parties' arguments, we first briefly review the history of the agreement and the town's promotional practices. The critical moment came on July 1, 1999, when the town and the union amended the agreement.¹⁶ The present appeal centers on the effect, if any, that these amendments had on the promotional process for the position of police captain. Prior to that date, the agreement's bargaining unit included all police sergeants, lieutenants and captains. The testimony at trial established that, with one exception,¹⁷ for nearly thirty years the town routinely had promoted the officer with the highest examination score—for example, from sergeant to lieutenant or from lieutenant to captain.¹⁸ After a period of negotiation, however, the town and the union amended the agreement to remove the...