Walker v. Jankura

• Decision Date: 01 March 1972
• Court: Connecticut Supreme Court
• Parties: Wilfred J. WALKER v. Stephen JANKURA et al.

Page 536

294 A.2d 536

162 Conn. 482

Wilfred J. WALKER v. Stephen JANKURA et al.

Supreme Court of Connecticut.

March 1, 1972.

Thomas J. Dolan, Bridgeport, for appellants (defendant Bergers et al.), with whom was Jack Samowitz, Bridgeport, for appellants (named defendant et al.).

Philip Trager, Bridgeport, with whom was Alexander W. Samor, Bridgeport, for appellee (plaintiff).

Before HOUSE, C.J., and COTTER, RYAN, SHAPIRO and LOISELLE, JJ.

RYAN, Associate Justice.

In this action the plaintiff seeks a declaratory judgment determining whether an examination held by the personnel director of the city of Bridgeport for the position of police inspector in that city, and the conduct and marking thereof, were illegal and contrary to the charter of the city and the rules of the civil service commission. The plaintiff also prays for injunctive relief. The members of the civil service commission, the personnel director of the city, and the seven police captains who took the examination with the plaintiff, are defendants in the action. The trial court rendered judgment declaring the examination held on August 26, 1969, to be illegal and contrary to the provisions of the charter of the city of Bridgeport and the rules of the civil service commission and, therefore, null and void. It ordered the civil service commission and the personnel director to eliminate all names from the employment list of police inspectors and to hold a new examination as soon as possible in accordance with the charter, permitting only those police captains to take the examination who were eligible to take it on or before September 12, 1968. From this judgment the defendant members of the civil service commission, Raymond A. Gallagher, the personnel director of the city, and the defendant police captains, Harold W. Bergers and James P. Breen, appealed to this court. In argument before us the parties agreed that Captain Breen has now retired and that the questions raised on this appeal are moot as to him.

In their first assignment of error, the defendants seek to have added to the finding certain facts which they claim are either admitted or undisputed. 'This court has the power to correct the finding where it fails to include admitted or undisputed facts. Practice Book § 627; Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123. A fact, however, is not admitted or undisputed simply because it is uncontradicted. . . . In the instant case, there was no failure on the part of the trial court to include any paragraphs of the draft finding which were admitted or undisputed, as set forth under our rule in cases such as Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634.' Solari v. Seperak, 154 Conn. 179, 182, 224 A.2d 529; Schurgast v. Schumann, 156 Conn. 471, 474, 242 A.2d 695.

The second assignment of error attacks certain paragraphs of the finding as having been found without evidence. This claim is without merit, since the challenged paragraphs of the finding pursued in the brief either are directly supported by the dvidence or are based on inferences reasonably drawn from the evidence. Cappiello v. Haselman, 154 Conn. 490, 492, 227 A.2d 79.

The finding is not subject to any material change and discloses the following facts: In 1935, by special act amending the charter of the city of Bridgeport, a civil service system was adopted. 22 Spec. Acts p. 261. The present members of the civil service commission established pursuant to this act are the defendants Stephen Jankura, Robert C. Gerte, Thomas J. Barrett, John B. Kennedy and Robert P. Giannini. The defendant Gallagher is the duly appointed personnel director of the city of Bridgeport and the secretary of the civil service commission. As personnel director the defendant Gallagher is authorized and required by the act to provide for, and hold, tests for the purpose of establishing employment lists in the competitive division of the classified service of the city of Bridgeport. On May 14, 1968, two new positions of police inspector were duly established by the civil service commission within the competitive classified service of the city of Bridgeport. No promotion or employment list existed for these new positions as of May 14, 1968. The civil service provisions give to the commission full discretion to make a determination of the prerequisite qualifications of experience for admission of a candidate to a promotional examination. Section 9 of the civil service provisions of the charter provides, in part, as follows: 'When a position in a promotional class shall become vacant . . . and no appropriate re-employment list or employment list exists, the Personnel Director shall, within one hundred and twenty days of the date of the creation of the vacancy, hold a promotional test for such class.' On May 14, 1968, the civil service commission, on the recommendation of the personnel director, the defendant Gallagher, established three years' experience as a police captain as one of the qualifications for admission to the promotional examination for the post of police inspector. On May 29, 1968, the board of police commissioners made two provisional appointments to the post of police inspector, John D. Leahy and George V. Kelly. The defendant personnel director did not hold an examination during the 120-day period provided for in § 9. The plaintiff made numerous oral and written requests that an examination be held for the police inspector post, and filed grievances with the board of police commissioners and the civil service commission seeking to have the examination held. On June 27, 1969, an arbitration hearing was scheduled to consider the plaintiff's position concerning his grievances, but the hearing was adjourned after the defendant Thomas J. Barrett, a member of the civil service commission, indicated to the plaintiff that an examination would be held within three weeks. On July 24, 1969, the mayor of the city of Bridgeport, Hugh C. Curran, wrote to the defendant personnel director requesting him to hold the examination immediately. Prior to that day, Gallagher had taken no action with respect to the examination. After the mayor's letter had been received, Gallagher completed all preparations for the examination within a week and a half. The examination was held on August 26, 1969. During the time between the creation of the vacancies and the holding of the examination, Gallagher gave numerous other tests, many for positions of minor importance. Eight captains, including the plaintiff and the defendants Leahy, Bergers, Breen and Willard Stevane, took the examination. The results of the test, as determined by the defendant commission, were as follows: Defendant Bergers, first; defendant Leahy, second; defendant Stevane, third; defendant Breen, fourth and the plaintiff Walker, fifth. Of those five officers, only the plaintiff and the defendant Leahy had the requisite three years' experience as captain on September 12, 1968, the date the 120-day period established by § 9 of the civil service provisions of the charter elapsed. Both Bergers and Breen completed three years' experience as captains on August 16, 1969, ten days before the examination was given. The personnel director was aware of the dates on which all of the defendants would attain three years' experience as captains, but intentionally delayed holding the examination until August 26, 1969, in order to permit Breen and Bergers to complete the necessary three years' experience. The delay in holding the examination was arbitrary on the part of the personnel director and was not due to the press of business. Section 9 of the civil service provisions provides that no credit is to be given for service rendered as a temporary appointee. Section 12 provides that 'in no case shall such (temporary) appointment exceed a total of four...