Howe v. Civil Serv. Comm'n of City of Bridgeport

• Decision Date: 08 May 1941
• Citation: 128 Conn. 35,20 A.2d 397
• Court: Connecticut Supreme Court
• Parties: HOWE v. CIVIL SERVICE COMMISSION OF CITY OF BRIDGEPORT.

20 A.2d 397

128 Conn. 35

HOWE

v. CIVIL SERVICE COMMISSION OF CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

May 8, 1941.

Appeal from Superior Court, Fairfield County; Kenneth Wynne, Judge.

Appeal by William Howe from the action of the Civil Service Commission of the City of Bridgeport in denying an appeal from the action of the director of maintenance of the board of education in removing plaintiff from a position as janitor. From a judgment for the Civil Service Commission of the City of Bridgeport, plaintiff appeals.

No error.

Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Clifford B. Wilson and Francis J. King, both of Bridgeport, for appellant.

Walter Werner and Harry Schwartz, both of Bridgeport (John V. Donnelly, of Bridgeport, on the brief), for appellee.

ELLS, Judge.

The civil service amendment to the charter to the city of Bridgeport is a comprehensive statute regulating all phases of the appointment, promotion, compensation and classification of those employees of the city who are placed by Section 3 of that act in the classified civil service. 22 Special Acts, pp. 261, 262. In March, 1937, the director of maintenance of the board of education purported to appoint the plaintiff, but only provisionally, to the position of janitor in the educational department, subject to the approval of the civil service commission. The plaintiff was over forty years old, and before offering this provisional appointment the director told him of a rule of the board prohibiting any permanent employment of janitors who were beyond that age, and after making the provisional appointment, on several occasions informed him that the job was temporary, was subject to the provisions of the civil service amendment, and could only continue until such time as an eligible list for the position of janitor was established by the civil service commission through examination. On March 22, 1937, the civil service commission approved this provisional appointment, effective March 15th.

The act made protective and other provision for those in the classified service along the general lines usual in municipal civil service laws, based fundamentally upon competitive examination. Section 12 provides that the personnel director, under certain specified circumstances, may authorize the filling of a position by provisional appointment pending the establishment of a re-employment or employment list, but that it shall continue only until the establishment of such lists, and in no event shall the appointment exceed a total of four calendar months. Section 24 states that "'provisional appointment' shall mean a temporary appointment under section twelve of this act." The plaintiff was nevertheless permitted to occupy the position from March 15, 1937, until July 12, 1939. In the meantime competitive examinations for the position of janitor in the classified service were duly held and an eligible list prepared. Thereafter the board of education requested the names of those certified as eligible and the position formerly occupied by the plaintiff as a provisional appointee was duly filled by an individual whose name was furnished from the eligible list. The plaintiff did not take the examinations, and at no time was his name on an eligible list. His appeal to the civil service commission was denied, he appealed to a judge of the Superior Court with like result, and then came to this court.

It is correctly conceded that the position of janitor in the public school system is in the classified service and is governed by the provisions of the act. Although we said in Svihra v. Samuelson, 125 Conn. 16, 18, 2 A.2d 383, that the act evinces an intention to retain in the board of education the powers and responsibility for the administration of schools, we were there concerned with teachers in the elementary system, excluded in § 3 of the act. Janitors are not within this exception. The question, therefore, is whether the plaintiff's original tenure as a provisional appointee was altered by the fact that he was unlawfully permitted to occupy the position for more than four months in a fiscal year.

The overwhelming weight of authority is that under the circumstances of this case a temporary appointment never ripens into a permanent appointment, nor does mere occupancy of a temporary position beyond the time limited by law result in permanent tenure. Among the many applicable cases are State ex rel. Raines v. Seattle, 134 Wash. 360, 365, 235 P. 968; Darling v. Maguire, 70 Misc. 597, 129 N.Y. S. 385, 389; People v. Scannell, Sup., 66 N.Y.S. 182, 184. "Any method which results in improperly placing in permanent positions those who obtain temporary employment is a reversion to the rightly condemned spoils system and is destructive of much that has been accomplished in the way of civil service reform." Sheridan v. Kern, 255 App.Div. 57, 5 N.Y.S.2d 336, 342. See, also, Koso v. Greene, 260 N.Y. 491, ...