Jones v. Civil Service Commission of City of New Britain

• Decision Date: 01 August 1978
• Citation: 400 A.2d 721,175 Conn. 504
• Parties: Kenneth E. JONES v. CIVIL SERVICE COMMISSION OF the CITY OF NEW BRITAIN.
• Court: Connecticut Supreme Court

Page 721

400 A.2d 721

175 Conn. 504

Kenneth E. JONES v. CIVIL SERVICE COMMISSION OF the CITY OF NEW BRITAIN.

Supreme Court of Connecticut.

Argued April 6, 1978.

Decided Aug. 1, 1978.

Harold J. Geragosian, New Britain, for appellant (plaintiff).

Albert P. Proulx, New Britain, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and HEALEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff has appealed from a judgment of the Court of Common Pleas dismissing his appeal from the action of the defendant civil service commission of New Britain (hereinafter the commission). The commission had sustained the action of the board of public works of New Britain (hereinafter the board) in its discharge of the plaintiff from his employment as a truck driver by the city of New Britain.

Although the plaintiff assigns error in the refusal to find certain material facts and in finding certain facts without evidence these assignments have not been briefed. Assignments of error which are not briefed are presumed to be abandoned. O'Connor v. Dory Corporation, 174 Conn. 65, 70, 381 A.2d 559; Johnson v. Flammia, 169 Conn. 491, 498, 363 A.2d 1048.

The finding discloses the following facts which are necessary for our disposition of this appeal: The plaintiff was thirty-eight years of age and had been employed as a truck driver by the city of New Britain for some eleven years as of December 21, 1973. On that date the plaintiff and one Barry Squillacote, the director of public works, were present at a Christmas party for the employees at the public works garage. Words were exchanged between the plaintiff and Squillacote and a tussle ensued between them. Both had consumed alcoholic beverages prior to the tussle, both sustained minor injuries and both were taken to the hospital as a result. Although the police were summoned and an investigation was conducted, neither man was arrested although each lodged a complaint of assault against the other.

On December 26, 1973, the chairman of the board notified the plaintiff by mail that he was suspended, pending an investigation, because he was in violation of the civil service rules. ¹ On December 27, 1973, the plaintiff requested a hearing before the commission. The plaintiff was notified by letter that the board would hold a hearing on January 2, 1974. By letter of January 9, 1974, the plaintiff was advised by the chairman of the board that he had been found guilty of the charges and that his employment with the city of New Britain was terminated. On January 10, 1974, the plaintiff forwarded an appeal to the commission.

On January 29, 1974, the commission voted at its regular meeting to send a notice to the plaintiff requesting that he grant the commission a thirty-day extension for scheduling a hearing of the appeal "due to the previous meetings being cancelled and also the heavy administrative schedule of the Commissioners." A later request setting forth the proposed thirty-day extension was sent to the plaintiff by the chairman of the commission on January 30, 1974. Section 19 of the rules of the commission as incorporated in the New Britain city charter provided: "The Civil Service Commission, on receiving such notice of appeal, shall set a date for a hearing for the removal, discharge or reduction, which date shall be not more than thirty days after the removal, discharge or reduction. Notice of the time and place of such hearing shall be sent to the employee appealing by registered mail at least ten days before the date set for such hearing." The last day for the hearing would have been February 8, 1974. The plaintiff did not respond or object to the thirty-day extension proposal of the commission prior to that date. On February 19, 1974, the commission held its regular meeting at which time it voted to schedule the hearing on the suspension and discharge for the next meeting on March 13, 1974, and on February 20, 1974, a letter notice of the scheduled date was forwarded by the commission's chairman by regular mail. On February 25, 1974, the plaintiff's counsel gave notice by letter to the commission that he had just been retained as counsel, that other commitments would prevent his attending the scheduled March 13 hearing and that he desired to have the hearing date continued. In the same letter the plaintiff's counsel also stated that he did not have a copy of the charges filed against his client, that he was requesting copies of the "entire police file, including statements" and that nothing contained in his letter was to be deemed a waiver of any of his client's rights insofar as the provisions of section 19 of the Merit System Act were concerned. ² The hearing was rescheduled for April 1, 1974. The appeal was heard on April 1 but could not be completed on that day, and after two continuances, was rescheduled to May 9 at which time it was concluded. On May 21, 1974, the commission voted to deny the plaintiff's appeal and to sustain the board and on May 23, 1974, the commission notified the plaintiff of their decision.

The plaintiff claimed that, as a matter of law, it is mandatory that every requirement of the civil service law be followed and that proof of substantial compliance is not sufficient. He also made other claims arising out of these claims which urged that the commission violated section 19 of the Merit System Act of the city of New Britain which concerned the discharge in rank or reduction in pay of a civil service employee. It is the overruling of the plaintiff's claims of law directed to these claims that we consider dispositive of this appeal and therefore we need not discuss any other assignment of error.

The record offers assistance on the plaintiff's claim that section 19 of the Merit System Act was mandatory. The commission itself wrote to the plaintiff "requesting" a thirty-day extension of the time limit "normally required." In doing so it expressly recognized the time limitation imposed upon it by section 19 and as we have said "(t)he practical interpretation of legislative acts by governmental agencies responsible for their administration is a recognized aid to statutory construction." State ex rel. James v. Rapport, 136 Conn. 177, 182, 69 A.2d 645, 647; see also State ex rel. Gray v. Quintilian, 121 Conn. 300, 304, 184 A. 382. This request for the extension of the thirty-day limitation "normally required" is an acknowledgment by the commission that it was a body of special and limited jurisdiction and therefore that it had no powers except such as the laws of its creation gave it and that it could not enlarge upon its powers; Vivian v. Bloom, 115 Colo. 579, 584, 177 P.2d 541; and this court has said that "(t)he rules and regulations of the civil service commission have the force and effect of law." Gilbert v. Civil Service Commission, 158 Conn. 578, 582, 265 A.2d 67, 69.

This rule in section 19 uses the terms "shall" and "may," commonly mandatory and directory in connotation, a factor that evidences affirmative selectivity of terms with specific intent to be distinctive in meaning. The words "shall" and "may" must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings. Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380; Blake v. Meyer, 145 Conn. 612, 616, 145 A.2d 584; see also Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 365n, 363 A.2d 170. Indeed, there is nothing in this civil service rule expressive of any contrary intent. Shulman v. Zoning Board of Appeals, supra, 154 Conn. 429, 226 A.2d 380. The words "shall" and "may" in section 19 are to be construed according to the commonly approved usage of the language. General Statutes § 1-1; Hartford Electric Light Co. v. Water Resources Commission,162 Conn. 89, 97, 291 A.2d 721. Or, stated another way, statutory language is to be given its plain and ordinary meaning. Rizzo v. Price, 162 Conn. 504, 509, 294 A.2d 541. When the language used in a statute is clear and unambiguous, its meaning is not subject to modification by construction. International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236; Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36. The plain and ordinary distinction in meaning between "shall" and "may" was intended in rule 19.

With our conclusion that the word "shall" in section 19 is mandatory, the doctrine of substantial compliance is not to be considered. We have had occasion to speak to the quantum of compliance that is required in civil service law. In Resnick v. Civil Service Commission, 156 Conn. 28, 32-33, 238 A.2d 391, 393, we said that "(i)t is mandatory that every requirement of the civil...