Patry v. Board of Trustees, Firemen's Pension Fund

• Decision Date: 21 June 1983
• Citation: 461 A.2d 443,190 Conn. 460
• Court: Connecticut Supreme Court
• Parties: John PATRY et al. v. BOARD OF TRUSTEES, FIREMEN'S PENSION FUND.

Page 443

461 A.2d 443

190 Conn. 460

John PATRY et al. v. BOARD OF TRUSTEES, FIREMEN'S PENSION FUND.

Supreme Court of Connecticut.

Argued March 31, 1983.

Decided June 21, 1983.

William F. Gallagher, New Haven, with whom were Elizabeth A. Dorsey, New Haven, and, on the brief, Roger B. Calistro, New Haven, for appellant (defendant).

Gerald F. Stevens, Milford, for appellees (plaintiffs).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, GRILLO and BIELUCH, JJ.

PETERS, Associate Justice.

The principal issue in this case is the construction of the provisions of a city's home rule ordinance governing the calculation of the pension to which a retiring chief of the fire department of the city's first taxation district is entitled. The plaintiffs, John Patry and others, taxpayers and employees of the first fire taxation district of the city of West Haven with an interest in the "Firemen's Pension Fund," brought an action to enjoin the defendant, Board of Trustees, Firemen's Pension Fund of West Haven, Connecticut, from using the pension fund to pay a retirement pension to Joseph C. Howell, and for a declaratory judgment to determine whether the action of the trustees in granting Joseph C. Howell a pension was valid. After a hearing before the court, ¹ the defendant was permanently enjoined from paying the pension as presently formulated, and the action of the defendant in formulating the pension was declared invalid, null and void. After the defendant's motion to reargue and to set aside the judgment was denied, the defendant appealed.

There is no dispute about the underlying facts. Joseph C. Howell, after thirty-one years of service, decided to retire as chief of the fire department of the first taxation district of West Haven. At Chief Howell's request, the defendant board of trustees of the firemen's pension fund met to act on his retirement and to determine the amount of his pension. The board approved his retirement and set the pension at 70 percent of his former salary. The 70 percent figure was opposed by a representative of the firefighters' union who claimed that the percentage was not authorized by the home rule ordinance of West Haven.

In determining the percentage figure, the board relied on the wording of § 5(a) of the home rule ordinance adopted by the city on November 6, 1973. The home rule ordinance provides, in relevant part, for disbursements from the firemen's pension fund as follows: "(a) When any full-time employee of said district has served as such for a period of at least twenty-five years, the board of trustees shall, on his application in writing, retire such employee and pay him an annual pension in monthly installments during his life time of an amount equal to not less than one-half of the annual salary received by such employee preceding his retirement. In addition thereto any such employee who has served more than twenty-five years shall receive an additional two percent of his salary received preceding his retirement for each year over twenty-five, but in no event shall his pension exceed seventy percent of such salary." The board, in setting the Howell pension, took into account the following considerations- : (1) the nature of the responsibilities borne by the chief of the department by virtue of his position; (2) the length of his service in the department and the nature of his service, which necessitated long workdays without overtime compensation; (3) the retirement of a prior chief of the department, under prior legislation, at 70 percent of his salary. The board took the view, according to testimony at the trial court hearing, that once someone had served for twenty-five years, the board had discretion to fix a pension at some percentage between the minimum of 50 percent and the maximum of 70 percent. Although the 70 percent figure might have been rationalized by selecting a base figure of 58 percent for the first twenty-five years of service and then adding 2 percent for each of the additional six years, or an additional 12 percent, that was not the basis upon which the board proceeded.

The trial court enjoined the defendant board from paying Howell the pension as it had been formulated. The court determined that the ordinance plainly limited additions to the base percentage to 2 additional percent of salary for each year's service over twenty-five. The court further held that the ordinance conferred no discretion upon the defendant to modify its statutory provisions, since such a grant of discretionary authority would have required explicit statutory language. In a motion to reargue, the defendant challenged both the substance and the form of the trial court's judgment.

The defendant raises on this appeal the same issues that were presented to the trial court in the motion to reargue. The defendant claims that the trial court erred: (1) in construing the language of the home rule ordinance to preclude a 70 percent pension for retiring Chief Joseph C. Howell and (2) in enjoining the defendant from payment of said pension rather than remanding the matter for further action by the board of trustees. We find no error.

Since the propriety of the action taken by the defendant necessarily turns on construction of § 5(a) of the West Haven Home Rule Ordinance, it is helpful to review the history of the ordinance. Although there is apparently no discoverable history of the discussions that led to its approval, and therefore no legislative history as that term is normally understood, it is possible to trace the history of the ordinance through the legislative acts which preceded it. Starting in 1937, the General Assembly enacted a number of special acts concerning pensions for members of the fire department of the first taxation district of West Haven. The first of these special acts provided, for any member of the fire department who had contributed to a "firemen's relief fund," a pension "equal to one-half of his regular monthly pay." 22 Spec.Acts 797, No. 399, § 5 (1937). ² This act was amended in 1967 to establish a pension fund similar in form to that of the present ordinance. The 1967 special act entitled a fireman, after twenty-five years of service, to a pension "of at least one-half of his annual salary" and "[i]n addition thereto ... [allowed him to] receive an additional two per cent of his basic salary ... for each year over and above the said twenty-five years of service, but in no event shall his pension exceed seventy percent of his basic salary at the time of his retirement." 33 Spec.Acts 137, No. 144, § 1 (1967). ³ This act was amended in 1969 in a variety of ways but with an express reservation that the amendment was not to affect "interests of any past or present fire department employee in any pension fund." 34 Spec.Acts 79, No. 100, § 6 (1969). The home rule ordinance that we must construe was approved in 1973. It continues the basic plan of the 1967 special act, but introduces a linguistic substitution of "not less than" for "at least" in the description of the basic twenty-five year pension.

This history provides support for some of the defendant's claims, but not for all of them. We conclude, as the defendant argues, that the present ordinance, when it authorizes a pension of "not less than one-half" of a retiree's annual salary counsels a disposition that is the same as if the ordinance had read "at least one-half." See Treat v. Town Plan & Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958). We are, however, unpersuaded that this conclusion requires us to hold that the ordinance confers discretion on the board of trustees to award a pension in any amount between 50 and 70 percent. Reading the ordinance as a whole, we construe its reference to "not less than" as authorizing a payment of a pension beyond the amount of 50 percent of a retiree's annual salary only when an additional pension is earned by additional years of service. Nothing in the ordinance, textually or historically, confers upon the board the authority to consider the quality of the retiree's service or to provide the present retiree a pension comparable to that paid to former retirees who may or may not have been similarly situated. ⁴

The defendant, while recognizing that the home rule ordinance does not expressly confer discretionary authority on the board, claims that the ordinance should be read to imply such authority. It argues that discretion for the board may be inferred from the combination of phraseology in § 5 that allows the board to set the pension at "not less than one-half" and "in no event ... [to] exceed seventy percent." If we assume that the "not less than" figure may be set at more than 50 percent, say at 58, then the addition of 12 percent for Chief Howell's six years of additional service would bring him to the 70 percent level. Even if we were to assume arguendo that the ordinance could reasonably be interpreted to confer this degree of discretion on the board, it is clear on the present record that the board exercised no such discretion, for the testimony at the trial expressly disclaimed reliance on such a formula. In the alternative, the defendant relies on other provisions of the home rule ordinance which authorize the board of trustees "to make all rules and regulations for the control and deposit of [the pension] fund." This reliance on Chapter 5, § 4, proves both too little and too much. On the one hand, the provisions of § 4, because they deal with general authority over "control and deposit," must, in case of conflict, give way to the more specific provisions of § 5 that expressly govern "disbursements from [the pension] fund." Accepted rules of construction assign precedence to provisions of special applicability over those of general applicability. Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979); Meriden v. Board of Tax Review, 161 Conn. 396, 401-402, 288 A.2d 435 (1971). On the other hand, the...