McKeithen v. City of Stamford

• Citation: 149 Conn. 619,183 A.2d 280
• Court: Connecticut Supreme Court
• Decision Date: 12 July 1962
• Parties: David L. McKEITHEN v. CITY OF STAMFORD. James CULLINAN v. CITY OF STAMFORD. Supreme Court of Errors of Connecticut

Page 280

183 A.2d 280

149 Conn. 619

David L. McKEITHEN v. CITY OF STAMFORD.

James CULLINAN v. CITY OF STAMFORD.

Supreme Court of Errors of Connecticut.

July 12, 1962.

Daniel D. McDonald, Bridgeport, with whom were Louis I. Iacovo, Stamford, and, on the brief, Albert L. Coles, Bridgeport, for appellant (plaintiff) in the first case.

Joseph J. Tooher, Jr., Stamford, with whom, on the brief, was P. Lawrence Epifanio, Stamford, for appellant (plaintiff) in the second case.

Isadore M. Mackler, Stamford, with whom, on the brief, were Theodore Godlin and Gerald Kolinsky, Stamford, for appellee (defendant).

Before BALDWIN, C. J., KING, MURPHY and SHEA, JJ., and PASTORE, Superior Court Judge.

KING, Associate Justice.

The plaintiffs in these cases were members of the police force in Stamford. On March 12, 1958, each plaintiff was arrested on a charge of breaking and entering and was bound over for trial in the Superior Court. On that date, each, because of his arrest, was suspended from duty by the chief of police, Joseph W. Kinsella. ¹ No question is raised as to the validity of the suspension for a period of ten days. The controversy is whether the suspension was valid and effective after the ten-day period. Each plaintiff claims it was not, because of the provisions of chapter 73 of the Stamford charter, 25 Sp.Acts 408, 471, § 730 et seq., and in this action seeks to recover pay for the entire period of his suspension except for the first ten days. ² Each plaintiff was ready, willing and able to perform the duties of his position during his period of suspension, had he been allowed so to do.

It is the general rule, both in Connecticut and elsewhere, that in the absence of specific statutory provision to the contrary, 'where a public officer is wrongfully suspended or expelled, he is entitled to recover the salary accruing during the period he is thus unlawfully removed from his office.' McDermott v. New Haven, 107 Conn. 451, 453, 140 A. 826, 827; 43 Am.Jur. 163, § 380. As pointed out in the McDermott case, '[p]olice officers of * * * [a] city are public officers * * *. [and the] salary provided by law for a public officer does not arise out of contract and is not dependent on the amount and value of the services rendered, but it belongs to him because the law attaches it to the office he holds. Sibley v. State, 89 Conn. 682, 685, 96 A. 161 [L.R.A.1916C, 1087].' Consequently, it is immaterial that neither of the plaintiffs, during the period of suspension, was assigned to any duties, or actually performed any duties, for the city of Stamford.

It is admitted by all parties that members of the police force of Stamford, including the plaintiffs, are members of the classified service within the meaning of the Stamford charter. Section 740 of the Stamford charter (1954), which is part of chapter 73, provides that, except as provided in chapter 72, no member of the classified service shall be suspended for more than ten days except after notice in writing of the grounds of suspension and an opportunity for a hearing before the personnel commission. 26 Spec.Laws 1024, § 9. It is under chapter 73 that the plaintiffs base their claims for compensation, pointing to the similarity of the provisions of chapter 73, and especially of § 740 thereof, to those before this court in McDermott v. New Haven, supra.

Chapter 72 of the Stamford charter is entitled 'Discipline of Members of the Police and Fire Departments' and consists of §§ 720, 720.1, 721 and 722. 26 Spec.Laws 394, § 7; 25 Spec.Laws 470, 471. Section 720 provides that any charge made against any member of the police or fire department shall be directed, in writing, to the board of public safety (as distinguished from the personnel commission, to which, under § 740 of chapter 73, charges against members of the classified service are preferred) and a copy served on the person against whom the charge is made, and that the board of public safety shall try the person at a public hearing. The section further authorizes several types of punishment which the board can impose after a finding of guilty. One punishment is forfeiture and withholding of pay for a period not to exceed thirty days from the date of suspension; another punishment is dismissal from office, which was the punishment ordered here in each case.

The provisions of chapter 72, rather than those of § 740 of chapter 73, control in these cases. Chapter 72 applies to members of the classified service who are in the fire and police departments. Section 740 by, specifically excepting from its scope any inconsistent provisions of chapter 72, applies only to other members of the classified service. Sections 720 and 740 must be reconciled so far as possible, and each given a reasonable construction. See Hutchison v. Board of Zoning Appeals, 140 Conn. 381, 385, 100 A.2d 839. Obvious considerations of public safety suggest the desirability, if not necessity, of treating members of the police and fire departments in a different manner from city employees in general. Matter of Cugell v. Monaghan, 201 Misc. 607, 611, 107 N.Y.S.2d 117; see also cases such as Riley v. Board of Police Commissioners, 147 Conn. 113, 119, 157 A.2d 590.

The special disciplinary procedure established for members of the police and fire departments under chapter 72 does not give to, nor withhold from, the chief of police any right of suspension. Such a right is not mentioned. Indeed, the right of suspension impliedly accorded the board of public safety under § 720, in connection with the express authority to withhold and forfeit pay, is solely a form of punishment after a determination of guilt with respect to a charge preferred to the board in writing and on which it has held a public hearing pursuant to the provisions of that section. The difference between suspension as a penalty or punishment after a hearing and a determination of guilty by the board of public safety, under the provisions of § 720, and a temporary suspension by the chief of police pending the outcome of a criminal prosecution, is crucial in these cases and is rather clearly brought out in the recent case of Brenner v. New York, 9 N.Y.2d 447, 451, 214 N.Y.S.2d 444, 174 N.E.2d 526. See, also, cases such as Avery v. Studley, 74 Conn. 272, 283, 50 A. 752, and Sullivan v. Martin, 81 Conn. 585, 589, 71 A. 783. Any power of temporary suspension without a hearing which the chief of police had is not conferred by chapter 72 but, if it exists at all, must be found elsewhere.

In the absence, as here, of statutory restrictions, a chief of police who is given general administration, supervision and discipline of a police department has a right to suspend, for a reasonable time, an officer who, as in the case of each of these plaintiffs, is awaiting trial on a criminal charge such as that of breaking and entering. Such a power is almost necessary to ensure the proper operation of a police department. LaBonte v. Berlin, 85 N.H. 89, 95, 154 A. 89. Under § 430 of the Stamford charter (25 Spec.Laws 429), the chief of police was responsible for the general administration, supervision and discipline of the police department. Furthermore, the 'Manual of Rules and...