Fitzgerald v. City of Bridgeport

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BRIAN FITZGERALD ET AL. v. CITY OF
BRIDGEPORT ET AL.
(AC 40130)
Alvord, Prescott and Flynn, Js.
Syllabus
The plaintiffs sought a temporary injunction to prevent the defendants from
making appointments to the position of police captain based on the
results of a police captain examination. In 2008, the defendant city of
Bridgeport had twenty-one lieutenant positions within its police depart-
ment. In 2010, a request from the police chief for an increase to twenty-
two lieutenant positions was approved, even though the city charter
required the submission of such a request to the city council for approval,
and A was promoted to the rank of lieutenant, as the twenty-second
lieutenant. In November, 2010, the employment of B as a lieutenant was
terminated, leaving twenty-one members holding the rank of lieutenant
until November, 2012, when M retired, which left twenty members hold-
ing the position of lieutenant. In February, 2014, C was promoted to
lieutenant, and in May, 2015, the defendant Civil Service Commission
announced that it would conduct a promotional examination for the
position of captain, specifying that April 22, 2012, was the date by which
candidates for the captain examination were required to have occupied
with tenure a position of lieutenant for not less than one year. The time
that C occupied, with tenure, the position of lieutenant was calculated
by the defendant D, the personnel director for the city, from the date
on which C would have been appointed to lieutenant to fill the vacancy
in the position held by B, which resulted in a determination in September,
2015, that C was eligible to take the captain examination. Underlying
the calculation of C’s seniority was the determination that the depart-
ment had an authorized strength of twenty-two lieutenant positions, as
no vacancy in the twenty-first lieutenant position occurred until M retired
in November, 2012, and if C’s seniority had been determined from that
date, he would not have been eligible to sit for the examination. The
captain examination was held in October, 2015, and C scored seventh.
The plaintiffs thereafter brought this action, alleging that C lacked the
necessary qualifications to sit for the captain examination. Specifically,
they claimed that because the city council had not approved an increase
in the number of lieutenant positions from twenty-one to twenty-two,
C’s seniority was improperly calculated on the basis of the vacancy
occurring in the twenty-second lieutenant position created by the termi-
nation of B in November, 2010. After the trial court dismissed a counter-
claim filed by C, the matter was tried to the court, which concluded
that C did not meet the eligibility requirements for the captain examina-
tion and should not have been permitted to take the examination, and
ordered C’s name stricken from the promotion list. On C’s appeal to
this court, held:
1. The trial court properly dismissed C’s counterclaim for lack of subject
matter jurisdiction on the basis of his failure to exhaust his administra-
tive remedies by appealing the time in grade date established in the
May, 2015 announcement, as C’s claim of error in the commission’s
selection of the date on which the vacancy in the rank of captain occurred
was subject to the exhaustion requirement: although C claimed that he
had no reason to appeal to the commission because he was not aggrieved
by D’s determination of his eligibility to take the captain’s examination,
C could not have been certain of his eligibility to take the captain
examination from the date of the announcement in May, 2015, until
after D’s determination regarding C’s eligibility in September, 2015, and
despite that uncertainty he did not appeal to the commission the date
of vacancy determination pursuant to the city charter, and the defen-
dants had not presented this court with any reason why the date of
vacancy was not the proper subject of an appeal before the commission,
as the commission had the authority and expertise necessary to review
that issue and to afford C the relief he sought from the court, and if C
had presented to the commission his claim as to the proper date in the
vacancy in the rank of captain, he might have received a satisfactory
administrative disposition of that question and avoided the need for
judicial review; moreover, the policies underlying the exhaustion doc-
trine would be best served by requiring C to bring his challenge to the
date of vacancy before the commission, as that determination was a
fact bound inquiry, which the commission was uniquely qualified to
undertake, and C, a municipal employee candidate for promotion to
captain, clearly possessed a specific, personal and legal interest in the
date establishing the candidates’ eligibility for the captain examination,
and that interest was adversely affected by the date selected, which
was sufficient to establish aggrievement; accordingly, because C could
have obtained review of the date of vacancy by way of an appeal to the
commission pursuant to the city charter, he was required to do so before
seeking redress in court.
2. The defendants’ claim that the trial court improperly concluded that the
twenty-second lieutenant position was not legally established under the
city charter was unavailing, as the commission lacked the authority to
increase the number of lieutenants; the plain language of the charter
required that the city council establish the new lieutenant position, and
the trial court properly concluded that the city council never established
the twenty-second lieutenant position, as the defendants did not contest
the trial court’s finding that the commission never submitted its action
authorizing the creation of the twenty-second position to the city council
for approval, D did not submit any request or notification to the city
council that the commission had approved the creation of the twenty-
second lieutenant’s position, and the informal recognition of an accom-
plished increase in the number of lieutenant positions did not satisfy
the charter’s mandate that the council establish any such positions.
3. The defendants could not prevail on their claim that even if the trial court
properly determined that the twenty-second lieutenant position was not
legally established under the charter, the court’s conclusion that C was
ineligible to sit for the captain examination constituted an improper
sanction of an illegal appointment; although there did not appear to be
a current ordinance addressing the number of positions in the depart-
ment, the commission was unauthorized to fix the number of positions
within the department, as the council was responsible for establishing
new positions under the charter, and because the mere fact that an
employee is occupying a position illegally does not permit the personnel
director to consider that position vacant for purposes of determining
the number of vacant positions within a class, A’s position in the class
of lieutenant remained filled despite the fact that his position initially
had been created in violation of the city charter, and, thus, promoting
C to a lieutenant position upon the vacancy created by B’s termination
would have constituted an illegal overfill.
Argued October 10, 2018—officially released January 22, 2019
Procedural History
Action for a temporary injunction to prevent, inter
alia, the defendants from making appointments to the
position of police captain based on the results of a
police captain examination, and for other relief, brought
to the Superior Court in the judicial district of Fairfield,
where the defendant Manuel Cotto filed a counterclaim;
thereafter, the court, Kamp, J., granted the plaintiff’s
motion to dismiss the counterclaim; subsequently, the
matter was tried to the court, Hon. Michael Hartmere,
judge trial referee; judgment for the plaintiffs, from
which the defendant Manuel Cotto appealed to this
court. Affirmed.
Barbara M. Schellenberg, with whom was Richard
L. Albrecht, for the appellant (defendant Manuel Cotto).
Thomas W. Bucci, for the appellees (plaintiffs).
John P. Bohannon, Jr., for the appellees (named
defendant et al.).
Opinion
ALVORD, J. The defendant Manuel Cotto1 appeals
from the judgment of the trial court dismissing his coun-
terclaim and in favor of the plaintiffs.2 The court struck
Cotto’s name from the eligibility list for promotion to
police captain after concluding that Cotto had not met
the eligibility requirements and should not have been
allowed to take the captain examination. On appeal,
Cotto claims that the court improperly (1) dismissed
his counterclaim for lack of subject matter jurisdiction
on the basis that he had failed to exhaust his administra-
tive remedies, and (2) determined that a twenty-second
lieutenant position was not established as required pur-
suant to § 206 (d) of the charter of the city of Bridgeport.
He claims in the alternative that even if the trial court
properly determined that the twenty-second lieutenant
position was not established as required, the court’s
conclusion that he was ineligible to take the captain
examination constituted an improper sanction of an
illegal appointment. We affirm the judgment of the
court.
The following facts, either found by the court or stipu-
lated to by the parties,3 and procedural history are rele-
vant to this appeal. The defendant city of Bridgeport
(city) is a municipal corporation and has as its govern-
ing document the charter of the city of Bridgeport (char-
ter). Section 206 (a) (3) and (4) of the charter set forth
the powers and duties of the defendant Civil Service
Commission (commission), including ‘‘mak[ing] investi-
gations, either on petition of a citizen or on its own
motion, concerning the enforcement and effect of this
chapter, requir[ing] observance of its provisions and
the rules and regulation made thereunder,’’ and ‘‘hear-
[ing] and determin[ing] complaints or appeals respecting
the administrative work of the personnel department,
appeals upon the allocations of positions or concerning
promotions, the rejection of an applicant for admission
to an examination and such other matters as may be
referred to the commission by the personnel director.’’
The personnel director for the city, defendant David J.
Dunn, is responsible for formulating and holding com-
petitive tests to determine the qualifications of persons
seeking employment or promotion with the city.4
Section 211 of the city charter governs eligibility for
promotion tests. Subsection (a) of § 211 provides in
relevant part that a promotion test shall be open to
those ‘‘who have held a position for a year or more in
a class or rank previously declared by the commission
to involve the performance of duties which tend to fit
the incumbent for the performance of duty in the class
or rank for which the promotion test is held. . . . A
person who has served less than one year in a lower
grade shall not be eligible for a promotion test.’’ Section
211 (b) of the charter provides in relevant part that
‘‘[w]hen a position in a promotion class shall become
vacant . . . the personnel director shall, within one
hundred and twenty days of the date of the creation of
the vacancy, hold a promotion test for such class.’’
Joseph L. Gaudett, Jr., became the chief of the city’s
police department (department) in October, 2008.5 At
the time of Gaudett’s appointment, there were twenty-
one lieutenant positions within the department. A
nationally recognized police think tank, the Police
Executive Research Forum (PERF), recommended that
the city increase the number of lieutenant positions to
twenty-three. In January, 2010, Gaudett wrote to Dunn
to request that the number of lieutenants in the table
of organization be increased from twenty-one to twenty-
two. The city’s chief administrative officer, Andrew
Nunn, approved Gaudett’s request. Gaudett appeared
on February 9, 2010, before the commission, which
voted to approve Gaudett’s request. A ‘‘civil service
position request form,’’ requested the creation of and
funding for a twenty-second lieutenant position, and
was signed by Mayor Bill Finch, Nunn, Gaudett, and
Dunn.
Section 206 (d) of the charter provides that ‘‘[w]hen-
ever the appointing authority of any department desires
to establish a new permanent position in the classified
service, the personnel director shall make or cause to
be made an investigation of the need of such position
and report his findings to the commission. If upon con-
sideration of the facts the commission determines that
the work of the department cannot be properly and
effectively carried on without the position, it shall clas-
sify and allocate the new position to the proper class
after the position has been established by the city coun-
cil. If the commission determines that the position is
not necessary and that the work of the department
can be properly and effectively carried on without the
position, it shall promptly transmit such determination
to the city council. Such determination by the commis-
sion shall be final unless the city council, within two
months of the date of such disapproving action by the
commission, shall by its duly enacted resolution
approve the establishment of such position. In such
event the final action of the city council shall be
promptly transmitted to the commission and the com-
mission shall allocate the position or positions therein
approved to its proper class in the classification plan.
All classifications and allocations made pursuant to this
subsection shall be based on the same procedure and
formula called for in subsections (a) and (b) of this
Section.’’
The commission did not submit its action authorizing
the creation of the twenty-second position to the city
council for approval. Nevertheless, Sergeant Richard
Azzarito was promoted to the rank of lieutenant, as
the twenty-second lieutenant, in February, 2010, and
remains a lieutenant. That is, beginning on March 18,
2010, there were twenty-two members of the depart-
ment holding the rank of lieutenant, although there
were only twenty-one lieutenant positions in the city
budget.6 The city used the reallocation of funds from a
vacant emergency medical technician supervisor posi-
tion to fund the twenty-second lieutenant position in
2010. On November 16, 2010, Christine Burns’ employ-
ment as a lieutenant was terminated.7 After her termina-
tion, there were twenty-one members of the department
holding the rank of lieutenant until November 24, 2012,
on which date lieutenant Matthew Cuminotto retired.
After Cuminotto’s retirement, there were twenty mem-
bers of the department holding the rank of lieutenant.
Since November 16, 2010, the department has never
had more than twenty-one members holding the rank
of lieutenant.
In November, 2013, Dunn administered a promotional
examination for the class of lieutenant. Cotto, a well
educated, second-generation city police officer who had
served as a sergeant since March, 2008, scored first on
the examination and was promoted to lieutenant on
February 10, 2014.
On May 4, 2015, the commission announced that it
would conduct a promotional examination for the posi-
tion of captain. The announcement provided that the
examination was ‘‘open to current members of the
Bridgeport Police Department, who have occupied with
tenure, a position of Police Lieutenant for not less than
one year, prior to April 22, 2012.’’ The captain examina-
tion was scheduled for October 21, 2015.
As previously discussed, if a position in a promotion
class becomes vacant, the personnel director is
required, pursuant to § 211 (b) of the charter, to hold
a promotion test within 120 days of the date of vacancy
in that class if there is no appropriate reemployment
or employment list. Dunn did not hold an examination
within 120 days of the date of vacancy in the captain
class. As a result, Dunn was required, pursuant to a
collective bargaining agreement between the city and
the police union, to reconstruct the examination eligibil-
ity list to ensure that only those persons who satisfied
the eligibility requirements on the date the test was
required to be administered were permitted to take
the examination.
The commission selected April 22, 2012, as the date
by which candidates for the captain examination were
required to have ‘‘occup[ied] with tenure, a position of
Police Lieutenant for not less than one year.’’ Dunn,
considering the date that Burns’ employment was termi-
nated on November 16, 2010, calculated Cotto’s time
in grade as a lieutenant from the date on which Cotto
would have been appointed lieutenant to fill the vacancy
in the position held by Burns. Underlying Dunn’s calcu-
lation of Cotto’s seniority was his determination that
the department had an authorized strength of twenty-
two lieutenant positions, as no vacancy in the twenty-
first lieutenant position occurred until Cuminotto
retired on November 24, 2012. Dunn found that Cotto
possessed tenure in the rank of lieutenant from March
16, 2011, which was 120 days following November 16,
2010, the date on which Burns’ employment was termi-
nated. Thus, Dunn determined that Cotto was eligible to
take the captain examination because he had occupied
a position of lieutenant for not less than one year as
of April 22, 2012. Dunn announced his decision to that
effect on September 23, 2015. The next day, the plain-
tiffs appealed Dunn’s decision to the commission,
which denied the appeal on October 13, 2015. The cap-
tain examination was held on October 21, 2015, and
Cotto scored seventh.
The plaintiffs commenced the present action alleging,
inter alia, that Cotto lacked the necessary qualifications
to sit for the captain examination. They alleged that
because the city council had not approved an increase
in the number of lieutenant positions from twenty-one
to twenty-two, Dunn had improperly calculated Cotto’s
seniority on the basis of the vacancy occurring in the
twenty-second lieutenant position created by the termi-
nation of Burns on November 16, 2010. Had Dunn prop-
erly calculated Cotto’s seniority from the date of
vacancy in the twenty-first position, Cotto would not
have been eligible to sit for the examination. The plain-
tiffs sought temporary and permanent injunction and
other relief.
On April 11, 2016, the city, the commission, and Dunn
collectively filed an answer. That same day, Cotto indi-
vidually filed an answer and counterclaim. The plaintiffs
filed a motion to dismiss Cotto’s counterclaim, which
was granted on July 1, 2016. This action was tried to
the court on September 14, 2016, and the parties filed
posttrial briefs thereafter. On January 31, 2017, the
court issued a memorandum of decision, in which it
concluded that Cotto did not meet the eligibility require-
ments for the captain examination and, thus, should
not have been permitted to take the examination. The
court, accordingly, ordered Cotto’s name stricken from
the promotion list.
The court first analyzed whether the twenty-second
lieutenant position had been created in conformity with
the law, such that a vacancy in that position could serve
as the basis for calculating Cotto’s time in grade as a
lieutenant. The court found that neither the commission
nor Dunn had conducted an investigation of the need
for such a position, as required by § 206 (d) of the
charter.8 Moreover, the court found that the city council
had never established the twenty-second position and
that the commission lacked authority to approve
Gaudett’s request to increase the number of lieutenant
positions from twenty-one to twenty-two. Thus, the
twenty-second lieutenant position was not properly
established, and Dunn’s position that the department
had an authorized strength of twenty-two lieutenant
positions was incorrect. That incorrect determination
led Dunn to calculate Cotto’s time in grade of lieutenant
from the date Burns’ employment was terminated on
November 16, 2010. After that date, the department was
at its authorized strength of twenty-one lieutenants.
Thus, the court found that no authorized lieutenant
position became available until Cuminotto retired on
November 24, 2012, the date from which Cotto’s time
in grade should have been calculated. Because Cotto
had occupied the position of lieutenant for less than
one year as of April 22, 2012, the court concluded that
he was ineligible to sit for the captain examination
and ordered his name struck from the eligibility list.
Additional facts and procedural history will be set forth
as necessary.
I
The defendants first claim that the trial court improp-
erly dismissed Cotto’s counterclaim on the basis of a
failure to exhaust his administrative remedies. We
disagree.
The following additional facts and procedural history
are relevant to this claim. In Cotto’s counterclaim, he
alleged that April 22, 2012, the date by which candidates
for the captain’s examination were required to have
‘‘occup[ied] with tenure, a position of Police Lieutenant
for not less than one year,’’ was incorrectly determined.
He maintained that in 2001, the city council had raised
the authorized number of captain’s positions from nine
to thirteen. Cotto claimed that although several captain
vacancies had occurred between 2001 and 2009, the
chief of police failed to serve notice on the personnel
director within thirty days of each vacancy as to
whether he desired to fill the vacancies. Accordingly,
three captain positions were alleged by Cotto to have
been abolished, returning the authorized number of cap-
tain positions to nine.9 Cotto claims that the commission
and the chief of police nevertheless continued to
appoint captains, one of which was James Baraja, in
excess of the nine authorized positions. Baraja again
was promoted, to deputy chief, on December 22, 2011.
The commission considered that date as the date of the
vacancy in the captain’s position and identified it as
such in the May 4, 2015 revised announcement that it
would conduct a captain examination. According to
Cotto, the Baraja captain vacancy ‘‘was a phantom
vacancy’’ created by an unauthorized captain appoint-
ment, and the first authorized vacancy in a captain
position did not occur until Captain Viadero retired on
June 28, 2014. Cotto alleged that he had ‘‘over a year
seniority as a lieutenant measured from the Cuminotto
vacancy of November 24, 2012, plus 120 days, to the
retirement of Captain Viadero, plus 120 days.’’
In the event the court were to render judgment for
the plaintiffs on their complaint, Cotto requested that
the court then void the current promotion list and the
promotions made therefrom and order the personnel
director to convene a new promotional examination for
the rank of captain tied to the proper vacancy dates.
On April 12, 2016, the plaintiffs filed a motion to
dismiss Cotto’s counterclaim on the basis that the court
lacked subject matter jurisdiction over it. Specifically,
they argued that Cotto failed to appeal to the commis-
sion from the decision to use the date on which Baraja
was promoted to deputy chief, rather than the date
Viadero retired, to assess the eligibility of the candi-
dates for promotion to captain. Cotto’s failure to appeal
from that decision, according to the plaintiffs, required
that his counterclaim be dismissed for failure to exhaust
his administrative remedies. Cotto filed a memorandum
in opposition to the plaintiffs’ motion to dismiss, in
which he argued that the exhaustion requirement was
inapplicable because he had received a favorable ruling
from Dunn that he had sufficient time in grade to take
the captain’s examination. Because he was determined
to be eligible to take the examination, Cotto claimed
that he had no reason to appeal to the commission.
In their reply brief, the plaintiffs argued: ‘‘When the
plaintiffs filed their appeal with the civil service com-
mission raising Cotto’s eligibility, he became fully aware
that his eligibility would be jeopardized if he did not
challenge the April 22, 2012, date, since he would not
have the requisite one year tenure as of that date if
the plaintiffs succeed in their claim. Nevertheless, he
remained silent, and accepted the . . . commission’s
determination, exposing him to disqualification based
on his eligibility being measured from his filling a nonex-
istent twenty-second lieutenant’s position.’’
After considering the motion on the papers, the court
issued an order granting the plaintiffs’ motion to dismiss
Cotto’s counterclaim. It reasoned: ‘‘While Cotto’s argu-
ment that he had no reason to appeal a decision in his
favor is logical, the court is not aware of any Connecti-
cut case law that supports the proposition that a favor-
able decision renders the exhaustion requirement not
applicable. Our Supreme Court has defined exceptions
to the exhaustion requirement narrowly, and the defen-
dant’s failure to appeal the time in grade date to the
. . . commission is not exempted from the exhaus-
tion requirement.’’
On appeal, the defendants claim that the exhaustion
requirement is not applicable because Cotto was not
aggrieved by Dunn’s decision that he possessed the
necessary time in grade to take the captain examination.
They claim that the court’s conclusion was based on
an illogical interpretation of the appeal provision con-
tained in § 206 (a) (4) of the charter. The plaintiffs
respond that because Cotto failed to challenge the April
22, 2012 date, either by way of his own appeal to the
commission or during the plaintiffs’ appeal of Dunn’s
decision to the commission, the court properly dis-
missed his counterclaim on the basis that he had failed
to exhaust his administrative remedies.
We first set forth our standard of review and relevant
legal principles. ‘‘In ruling upon whether a complaint
survives a motion to dismiss, a court must take the
facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . Because the exhaustion [of adminis-
trative remedies] doctrine implicates subject matter
jurisdiction, [the court] must decide as a threshold mat-
ter whether that doctrine requires dismissal of the
[plaintiff’s] claim. . . . [B]ecause [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary.’’ (Internal quota-
tion marks omitted.) Gerardi v. Bridgeport, 99 Conn.
App. 315, 317, 913 A.2d 1076 (2007).
‘‘Under our exhaustion of administrative remedies
doctrine, a trial court lacks subject matter jurisdiction
over an action that seeks a remedy that could be pro-
vided through an administrative proceeding, unless and
until that remedy has been sought in the administrative
forum. . . . In the absence of exhaustion of that rem-
edy, the action must be dismissed.’’ (Internal quotation
marks omitted.) Id., 317. ‘‘The exhaustion doctrine is
rooted in both prudential and constitutional considera-
tions. As our Supreme Court has explained, separation
of powers principles [underlie] the exhaustion doctrine,
namely, to foster an orderly process of administrative
adjudication and judicial review, offering a reviewing
court the benefit of the agency’s findings and conclu-
sions. It relieves courts of the burden of prematurely
deciding questions that, entrusted to an agency, may
receive a satisfactory administrative disposition and
avoid the need for judicial review. . . . Moreover, the
exhaustion doctrine recognizes the notion, grounded
in deference to [the legislature’s] delegation of authority
to coordinate branches of [g]overnment, that agencies,
not the courts, ought to have primary responsibility
for the programs that [the legislature] has charged
them to administer. . . . Therefore, exhaustion of
remedies serves dual functions: it protects the courts
from becoming unnecessarily burdened with adminis-
trative appeals and it ensures the integrity of the
agency’s role in administering its statutory responsibili-
ties.’’ (Emphasis in original; internal quotation marks
omitted.) Metropolitan District v. Commission on
Human Rights & Opportunities, 180 Conn. App. 478,
486–87, 184 A.3d 287, cert. denied, 328 Conn. 937, 184
A.3d 267 (2018); see also Gerardi v. Bridgeport, supra,
99 Conn. App. 318 (‘‘[t]he exhaustion doctrine reflects
the legislative intent that such issues be handled in the
first instance by local administrative officials in order
to provide aggrieved persons with full and adequate
administrative relief’’ [internal quotation marks
omitted]).
Section 206 (a) of the charter provides in relevant
part: ‘‘The members of the civil service commission
shall hold regular meetings at least once each month
and may hold additional meetings as may be required
in the proper discharge of their duties. Said commission
shall . . . (4) hear and determine complaints or
appeals respecting the administrative work of the per-
sonnel department, appeals upon the allocations of
positions or concerning promotions, the rejection of an
applicant for admission to an examination and such
other matters as may be referred to the commission by
the personnel director.’’ See also Gerardi v. Bridgeport,
supra, 99 Conn. App. 318 (‘‘[t]he plain language of § 206
(a) (4) empowers the civil service commission to hear
appeals, in which employees seek redress for alleged
violations of the charter relating to the promotion of
civil service employees’’).
We conclude that Cotto’s claim of error in the com-
mission’s selection of the date on which the vacancy
in the rank of captain occurred was subject to the
exhaustion requirement.10 On May 4, 2015, the commis-
sion issued a revised announcement regarding its inten-
tion to conduct a promotional examination for police
captain. As of that date, Cotto was on notice that the
commission had identified Baraja’s promotion to dep-
uty chief on December 22, 2011, as the date of the
first vacancy in the captain rank. The announcement
specified that April 22, 2012, was the date by which
candidates for the captain examination were required
to have ‘‘occup[ied] with tenure, a position of Police
Lieutenant for not less than one year.’’ Because of the
city’s frequent inability to hold promotional tests within
120 days of vacancies, Cotto had not been promoted
to lieutenant until February, 2014, but was entitled to
be credited with seniority from 120 days of the vacancy
in the rank of lieutenant. Dunn did not issue his decision
on Cotto’s time in grade until September 23, 2015. Thus,
from the May 4, 2015 announcement through Dunn’s
decision on September 23, 2015, Cotto could not have
been certain of his eligibility to take the captain exami-
nation. Indeed, he does not allege that he had received,
prior to the date of the May 4, 2015 announcement, any
determination regarding his date of tenure in the rank
of lieutenant. Despite this uncertainty, he did not appeal
to the commission from the date of vacancy determina-
tion pursuant to § 206 (a) (4) of the charter.
Moreover, the defendants have not presented this
court with any reason why the date of vacancy was not
the proper subject of an appeal before the commission.
To the contrary, it is clear that the commission had the
authority and expertise necessary to review that issue
and afford Cotto the relief he now seeks from the
court.11 The language of the charter provides the com-
mission with broad and wide ranging authority to ‘‘hear
and determine complaints or appeals respecting the
administrative work of the personnel department,
appeals . . . concerning promotions . . . and such
other matters as may be referred to the commission
by the personnel director.’’ Had Cotto appealed to the
commission to challenge the date set forth in the May
4, 2015 announcement, the commission would have had
the opportunity to decide that question pursuant to its
responsibilities under the charter.
Indeed, had Cotto presented to the commission his
claim that the first vacancy in the rank of captain
occurred on June 28, 2014, he might have received a
satisfactory administrative disposition of that question
and avoided the need for judicial review. See, e.g. Piquet
v. Chester, 306 Conn. 173, 187, 49 A.3d 977 (2012) (‘‘[I]f
the plaintiff had appealed to the board, and if the board
had decided in the plaintiff’s favor, she would not have
needed to file the present action. If the board had
decided the case against the plaintiff, the Superior Court
would be presented with the reasons for the board’s
decision and would have been able to make an informed
decision as to whether the board had acted arbi-
trarily.’’).
Finally, the policies underlying the exhaustion doc-
trine would be best served by requiring Cotto to bring
his challenge to the date of vacancy before the commis-
sion. As our Supreme Court has recognized, ‘‘one pur-
pose underlying the exhaustion doctrine is that judicial
review may be hindered by the failure of the litigant to
allow the agency to make a factual record, or to exercise
discretion or apply its expertise.’’ (Internal quotation
marks omitted.) Stepney, LLC v. Fairfield, 263 Conn.
558, 568, 821 A.2d 725 (2003). The issue of when the
first vacancy occurred is a fact bound inquiry, which
the commission is ‘‘uniquely qualified to undertake.’’ Id.
Cotto argues, however, that ‘‘the appeal language con-
tained in § 206 (a) (4) must be interpreted to mean that
an appeal to the commission is required only when an
adverse administrative decision has been made, thereby
causing an employee to be aggrieved or harmed in some
way.’’ He contends that he was not aggrieved by Dunn’s
decision in his favor. We conclude that the trial court
properly dismissed the counterclaim on the basis of
Cotto’s failure to appeal the time in grade date estab-
lished in the May 4, 2015 announcement. The fact that
Cotto did not appeal Dunn’s favorable decision as to
his eligibility for the captain examination, rendered on
September 23, 2015, well after the May 4, 2015
announcement of the captain examination, is
irrelevant.12
‘‘The fundamental test for determining aggrievement
encompasses a well-settled twofold determination:
[F]irst, the party claiming aggrievement must success-
fully demonstrate a specific, personal and legal interest
in [the subject matter of the challenged action], as dis-
tinguished from a general interest, such as is the con-
cern of all members of the community as a whole.
Second, the party claiming aggrievement must success-
fully establish that this specific personal and legal inter-
est has been specially and injuriously affected by the
[challenged action]. . . . Aggrievement is established
if there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected.’’ (Internal quotation marks omitted.)
Broadnax v. New Haven, 270 Conn. 133, 154, 851 A.2d
1113 (2004).
In the present case, Cotto, a municipal employee
candidate for promotion to captain, clearly possessed
a specific, personal and legal interest in the date estab-
lishing the candidates’ eligibility for the captain exami-
nation. See id., 155 (plaintiff ‘‘employees of a municipal
department governed by the city’s civil service rules
and regulations, certainly are within the zone of inter-
ests that the civil service system was designed to pro-
tect, and, as such, have a legally protected interest in
the subject matter of the challenged action’’). As to the
second aspect of aggrievement, Cotto’s interest was
adversely affected by the date selected. Ultimately, as
he himself alleges in his counterclaim, the correct date
pursuant to Walker v. Jankura, 162 Conn. 482, 294 A.2d
536 (1972),13 ‘‘was not 120 days after the promotion of
Captain Baraja but 120 days after the June 28, 2014
retirement of Captain [Viadero], by which time the
defendant clearly had sufficient time in grade . . . .’’
If the commission had selected the date which Cotto
now advocates, he would have been eligible to take the
captain examination. This consequence alone is suffi-
cient to establish aggrievement, because the decision
affected an interest specific to Cotto, namely his eligibil-
ity to attain the rank of captain. See Broadnax v. New
Haven, supra, 270 Conn. 158 (plaintiffs established
aggrievement by showing that challenged promotional
practice affected an interest specific to them, namely,
their capacity to attain the rank of captain).
Significantly, the decision Cotto claims that he was
not aggrieved by is the same decision he now challenges
by way of his counterclaim. Until Dunn issued his deci-
sion regarding Cotto’s eligibility, Cotto was aware that
there was a ‘‘possibility,’’ if not a ‘‘certainty,’’ of direct
injury, specifically, that the date chosen would preclude
his eligibility. See id., 154 (‘‘[a]ggrievement is estab-
lished if there is a possibility, as distinguished from a
certainty, that some legally protected interest . . . has
been adversely affected’’ [internal quotation marks
omitted]). He, therefore, should have appealed that
date. A decision in his favor at that juncture could have
averted not only the plaintiffs’ appeal to the commission
of Dunn’s decision on Cotto’s eligibility, but also the
present action.
We conclude that the trial court properly dismissed
Cotto’s counterclaim on the basis that he failed to
exhaust his administrative remedies. Because Cotto
could have obtained review of the date of vacancy by
way of an appeal to the commission, pursuant to § 206
(a) (4) of the charter, he was required to do so before
seeking redress in court.
II
A
The defendants next claim that the trial court improp-
erly concluded that the twenty-second lieutenant posi-
tion was not established as required pursuant to § 206
(d) of the charter. Specifically, they claim that the trial
court improperly determined that the position was not
legally established because (1) Dunn did not make or
cause to be made an investigation of the need for the
position, and (2) the city council never established the
twenty-second position. According to the defendants,
because the court improperly determined the twenty-
second lieutenant position to be illegally created, the
court’s calculation of Cotto’s time in grade on the basis
of the subsequent date that the twenty-first lieutenant
position became vacant led to the improper conclusion
that he was ineligible to sit for the captain examination.
The plaintiffs respond that ‘‘[p]romoting Cotto to the
[twenty-second] position would have been an illegal
overfill’’ because ‘‘[t]he twenty-second lieutenant posi-
tion had never been legally created pursuant to the
provisions’’ of the charter. We agree with the plaintiffs.
We first set forth our standard of review and relevant
legal principles. ‘‘As with any issue of statutory con-
struction, the interpretation of a charter or municipal
ordinance presents a question of law, over which our
review is plenary.’’ (Internal quotation marks omitted.)
Shevlin v. Civil Service Commission, 148 Conn. App.
344, 354, 84 A.3d 1207 (2014). ‘‘[T]o the extent that the
trial court has made findings of fact, our review is lim-
ited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Broadnax
v. New Haven, supra, 270 Conn. 161–62.
‘‘In construing a city charter, the rules of statutory
construction generally apply. . . . In arriving at the
intention of the framers of the charter the whole and
every part of the instrument must be taken and com-
pared together. In other words, effect should be given,
if possible, to every section, paragraph, sentence, clause
and word in the instrument and related laws. . . .
‘‘In addition, the present case involves the city’s civil
importance of maintaining the integrity of that system.
Statutory provisions regulating appointments under
civil service acts are mandatory and must be complied
with strictly.’’ (Citation omitted; internal quotation
marks omitted.) Id., 161; see also Walker v. Jankura,
supra, 162 Conn. 489 (‘‘[s]tatutory provisions regulating
appointments under civil service acts . . . may not be
waived by a civil service commission’’).
‘‘The [civil service] law provides for a complete sys-
tem of procedure designed to secure appointment to
public positions of those whose merit and fitness has
been determined by examination, and to eliminate as far
as practicable the element of partisanship and personal
favoritism in making appointments. . . . A civil service
statute is mandatory as to every requirement.’’ (Internal
quotation marks omitted.) Broadnax v. New Haven,
supra, 270 Conn. 161. ‘‘Compliance by a civil service
commission that is tantamount to substantial compli-
ance is not sufficient where the civil service provision
is mandatory, as substantial performance has no appli-
cation to the performance of duty by those entrusted
with the administration of the civil service law. It would
open the door to abuses which the law was designed
to suppress.’’ (Internal quotation marks omitted.) Jones
v. Civil Service Commission, 175 Conn. 504, 510, 400
A.2d 721 (1978). ‘‘Good faith of the parties will not
validate an illegal appointment and will not be sanc-
tioned by the courts.’’ Resnick v. Civil Service Commis-
sion, 156 Conn. 28, 32, 238 A.2d 391 (1968).14
We first address the defendants’ argument that the
trial court improperly concluded that the city council
never established the twenty-second lieutenant posi-
tion. The defendants contend that the charter requires
only that the city council establish a new position, but
does not require explicitly that it budget such position.
Given that the charter does not prescribe the manner
in which the council must establish a new position, the
defendants argue that the city council can establish a
new position in ‘‘any way that manifested such an
intent.’’ The plaintiffs respond that ‘‘[t]he testimony pre-
sented at trial irrefutably proves that the city council
never approved the creation of a twenty-second lieuten-
ant position.’’ Without such approval, the plaintiffs
argue that the commission was not authorized to create
a twenty-second lieutenant position in excess of the
city council’s budgeted twenty-one positions.
Our case law has long recognized that city commis-
sions have no authority other than that delegated to
them. Thus, fixing the number of authorized positions,15
if not expressly delegated to the commission, is not
within its authority. ‘‘It is well established that a city’s
charter is the fountainhead of municipal powers. . . .
The charter serves as an enabling act, both creating
power and prescribing the form in which it must be
exercised. . . . It follows that agents of a city, including
its commissions, have no source of authority beyond the
charter.’’ (Citations omitted; internal quotation marks
omitted.) Lombardi v. Bridgeport, 194 Conn. 601, 604,
483 A.2d 1092 (1984).
Our Supreme Court has stated: ‘‘The common council
of Bridgeport is the governing body of the city. It can
exercise all the powers of the municipality except those
expressly granted to other agencies. . . . There is no
express authority given to the [the civil service] com-
mission to fix the number of officers in the city police.
If such a power were to be accorded to it by implication
from the language creating and empowering it to act,
the result would be confusion. The commission could
then control the entire operation of the police depart-
ment by prescribing the extent of its service, its internal
organization and its budgetary needs. If this were true
of the police, it could be true of all the other depart-
ments and eventually the commission, a purely adminis-
trative agency, would take over a large part of the
functions of government for the city.’’16 (Citations omit-
ted.) Shanley v. Jankura, 144 Conn. 694, 703–704, 137
A.2d 536 (1957).
‘‘The intention of the legislative body is found in the
words employed in the charter provisions, and these
words are given their plain and obvious meaning.’’ Buo-
nanno v. Merly, 4 Conn. App. 148, 149, 493 A.2d 245
(1985). Section 206 (d) governs the procedures to be
followed in the event that the chief of police, designated
by Chapter 13, § 5 (4) of the charter as the appointing
authority for the department, desires to establish a new
permanent position in the classified service. Specifi-
cally, ‘‘[i]f upon consideration of the facts the commis-
sion determines that the work of the department cannot
be properly and effectively carried on without the posi-
tion, it shall classify and allocate the new position to
the proper class after the position has been established
by the city council.’’ (Emphasis added.) Indisputably,
the plain language of the charter provision requires that
the city council establish the new position.
We agree with the trial court’s conclusion that the
city council never established the position. The trial
court expressly found that the commission ‘‘never sub-
mitted its action authorizing the creation of a twenty-
second position to the city council for approval.’’ The
defendants do not contest this finding, and Dunn testi-
fied that he did not submit any request or notification
to the city council that the commission had approved
the creation of the twenty-second lieutenant’s position.
Instead, the defendants direct this court’s attention to
the police department’s 2011 fiscal year budget, which
sets forth as an ‘‘[a]ccomplishment,’’ that the number
of lieutenants had been increased from twenty-one to
twenty-two in accordance with PERF’s recommenda-
tion.17 This evidence, according to the defendants, was
‘‘more than sufficient . . . to show that the city coun-
cil had established the twenty-second lieutenant posi-
tion as required by § 206 (d) because it was evidence
that the city council recognized the position as perma-
nent in nature rather than temporary.’’ A review of the
other listed ‘‘accomplishments,’’ including reducing cer-
tain crimes, filling vacant positions, reconfiguring meet-
ings to increase productivity, and establishing a greater
‘‘web presence,’’18 negates the suggestion that mere
inclusion in a list of accomplishments fulfilled the char-
ter requirement that the city council establish the posi-
tion. Moreover, the same budget indicates
unequivocally that there were twenty-one lieutenant
positions budgeted for both fiscal years 2010 and 2011.
Because we conclude that the inclusion of an accom-
plishment in an annual list of the department’s high-
lighted activities does not satisfy the establishment
requirement set forth in § 206 (d) of the charter, we
need not decide what action is required by the council
to establish a position. We note, however, that Chapter
5, § 8 of the charter provides in relevant part that ‘‘every
act [of the city council] creating, altering or abolishing
any agency, office or employment, or assigning or reas-
signing the same to departments, [or] fixing compensa-
tion . . . shall be by ordinance.’’19
We also find guidance in Broadnax v. New Haven,
supra, 270 Conn. 136 n.2, 163 n.34, 168, in which our
Supreme Court concluded that the practice of underfill-
ing, whereby funds allocated for a vacant higher rank
are used to pay individuals employed at a lower rank,
violated the city of New Haven’s ordinances and civil
service rules and regulations. The New Haven Code
required the board of aldermen to approve any action
that creates a position not included in the budget as
adopted by the board of aldermen, which budget author-
ized a specific number of salaried positions at each
rank. Id., 164. The court concluded that the fire depart-
ment’s employment of ‘‘additional lieutenants, i.e.,
positions that were not listed in the budget’’ violated
the New Haven Code by creating positions not included
in the budget as adopted without receiving prior
approval of the board of aldermen. (Emphasis in origi-
nal.) Id. The city defendants argued that the board of
aldermen was aware that the department was underfill-
ing positions and that the board took no action to pro-
hibit the practice. Id., 169. The court stated: ‘‘The
defendants, however, have not indicated why the aware-
ness of the board of aldermen somehow validates the
practice, nor have the defendants cited any authority
to support such a proposition. Even if we were to
assume that the board of aldermen was, in fact, aware
of the practice, the provisions at issue require the formal
approval, as opposed to the informal acquiescence, of
the board of aldermen, and it is undisputed that the
defendants had not obtained such approval in the pre-
sent case.’’ (Emphasis in original.) Id.
Although distinct from the present case, Broadnax
reaffirms the principle that where a charter or ordi-
nance requires a formal action by the city’s legislative
body, informal acquiescence is not sufficient. Id. In the
present case, the informal recognition of an ‘‘accom-
plish[ed]’’ increase in the number of lieutenant positions
cannot satisfy the charter’s mandate that the council
establish any such positions.
The defendants’ remaining argument is that the trial
court improperly concluded that the twenty-second
lieutenant position was not established in conformity
with the charter because Dunn did not ‘‘make or cause
to be made an investigation of the need of such position
and report his findings to the commission,’’ as provided
for in § 206 (d) of the charter. The defendants argue
primarily that because the twenty-second lieutenant
position was not a ‘‘new’’ position, but rather an ‘‘addi-
tion to an already created position,’’ Dunn’s reasonable
interpretation that the investigation provision was not
triggered should have been credited by the court.20 We
reject the defendants’ argument that the twenty-second
lieutenant position was not a new position such that
the provisions of § 206 (d) were not triggered. The
defendants have not pointed this court to any provision
in the charter granting authority to the commission
to increase the number of lieutenants. Following our
Supreme Court’s decision in Shanley, we conclude that
the commission lacks authority to increase the number
of lieutenants.21
B
Lastly, we address the defendants’ alternative claim
that even if the trial court properly determined that the
twenty-second lieutenant position was not established
as required, the court’s conclusion that he was ineligible
to sit for the captain examination constituted an
improper sanction of an illegal appointment. They argue
that ‘‘the trial court cannot, at the same time, reason
that Azzarito’s appointment was illegal and then legiti-
mize that same appointment by counting it for the pur-
pose of determining when a vacancy in the rank of
lieutenant occurred.’’ The plaintiffs argue that ‘‘the
claim that Azzarito’s promotion was not legitimate does
not justify the overfilling of the lieutenant position that
would have been created by making lieutenant Cotto’s
promotion to lieutenant retroactive to November 16,
2010.’’22 The trial court addressed the defendants’ argu-
ment by concluding that ‘‘[e]ven assuming that Azzar-
ito’s appointment was improper, one violation cannot
justify another violation.’’ We agree.
In Shanley v. Jankura, supra, 144 Conn. 704, our
Supreme Court concluded that the civil service commis-
sion lacked authority to promote the plaintiff, a lieuten-
ant at the time, to the position of captain. The city
council had established by ordinance that there should
be no more than seven police captains. Id., 698. Subse-
quently, the general assembly enacted a civil service
law for the city of Bridgeport, which provided for the
creation of a civil service commission to administer the
act. Id. Following the adoption of the Civil Service Act
in 1935, the position of clerk of the department was
allocated to the class of police captain. Id., 699. In 1943,
when the then current clerk was appointed to superin-
tendent, the Board of Police Commissioners, without
consultation or approval from the commission,
appointed James Falvey to the position of clerk. Id.,
700. Falvey, however, was ineligible to hold any position
within the class of captain. Id. The commission, there-
after, in response to a request from the Board of Police
Commissioners, certified and appointed Thomas Caf-
ferty to the position of relief captain. Id., 699. This action
increased the number of police captains from seven to
eight, in violation of the ordinance. Id.
The plaintiff claimed that because Falvey was occu-
pying the position of clerk illegally, the position was in
effect vacant, and, therefore, he was entitled to promo-
tion to the class of captain. Id., 701. Our Supreme Court
stated: ‘‘This argument presupposes that the commis-
sion can allocate a position in the police department
to the class of captain and thereby require the board
to fill the position with an appointee of that class even
though by so doing the board would exceed by one the
number of police captains fixed by ordinance.’’ Id. The
court further emphasized that there was no express
authority given to the commission to set the number
of officers in the department. Id., 702. Thus, ‘‘[t]he board
was powerless to promote the plaintiff . . . to the posi-
tion of captain and to assign him to the position of clerk
of the department even if Falvey, the incumbent was
holding the position unlawfully.’’ The court continued:
‘‘Nor can the board’s appointment of Cafferty as relief
captain in violation of the ordinance help these plain-
tiffs. One violation cannot justify a second and a third.’’
Id., 704–705.
Turning back to the matter at hand, although there
does not appear to be a current ordinance addressing
the number of positions in the department; see footnote
20 of this opinion; the commission remains unautho-
rized to fix the number of positions within the depart-
ment, and the council remains responsible for
establishing new positions under § 206 (d) of the char-
ter. Under Shanley, the mere fact that an employee
is occupying a position illegally does not permit the
personnel director to consider that position vacant for
purposes of determining the number of vacant positions
within a class. Thus, Azzarito’s position in the class
of lieutenant remained filled despite the fact that his
position initially had been created in violation of the
charter, and promoting Cotto to a lieutenant position
upon Burns’ termination would have constituted an ille-
gal overfill.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The city of Bridgeport, the Civil Service Commission of the City of
Bridgeport, and David J. Dunn were also named as defendants in this action
and adopted the brief of Manuel Cotto on appeal. Rebecca Garcia, Lonnie
Blackwell, Stephen Shuck, and Richard Azzarito were also named as defen-
dants in this action but did not appear before the trial court and have not
participated in this appeal. We, therefore, refer in this opinion to Cotto, the
city of Bridgeport, the Civil Service Commission of the City of Bridgeport,
and Dunn, collectively as the defendants and individually by name where
appropriate.
2
The plaintiffs in this action are nine members of the Bridgeport Police
Department who served in the position of lieutenant. They are Brian Fitzger-
ald, Brett Hyman, William Mayer, Albert Karpus, Steven Lougal, John Cum-
mings, Kevin Gilleran, Mark Straubel, and Raymond Masek. Subsequent to
the commencement of this action, some of the nine, including Fitzgerald,
Straubel, and Lougal, were promoted to the position of captain.
3
The parties filed a stipulation of facts in the trial court, which incorpo-
rated the stipulated facts in full into its memorandum of decision.
4
Specifically, he has the responsibility to ‘‘provide for, formulate and hold
competitive tests to determine the relative qualifications of persons who
seek employment or promotion to any class of position and as a result
thereof establish employment and reemployment lists for the various classes
of positions . . . .’’ Bridgeport Charter, c. 17, § 207 (6).
5
Gaudett served as department chief from October, 2008 through March
1, 2016.
6
The city has never budgeted more than twenty-one lieutenant positions,
either in the 2009-2010 fiscal year, or in any fiscal year thereafter.
7
Burns grieved her termination. Ultimately, she was reinstated but
demoted to the position of patrol officer.
8
The court additionally rejected, as not supported by the evidence, Dunn’s
determination that, at all times relevant, there had been twenty-two lieuten-
ant positions within the department.
9
Cotto did not include any allegations resolving this numerical dis-
crepancy.
10
We note that our Supreme Court has ‘‘carved out several exceptions
from the exhaustion doctrine . . . although only infrequently and only for
narrowly defined purposes. . . . Such narrowly defined purposes include
when recourse to the . . . remedy would be futile or inadequate. . . . A
remedy is futile or inadequate if the decision maker is without authority to
grant the requested relief. . . . It is futile to seek a remedy only when such
action could not result in a favorable decision and invariably would result
in further judicial proceedings.’’ (Citations omitted; internal quotation marks
omitted.) Garcia v. Hartford, 292 Conn. 334, 340, 972 A.2d 706 (2009). The
defendants, describing exceptions to the exhaustion doctrine as ‘‘irrelevant,’’
do not argue that any such exceptions apply.
11
See, e.g. Santora v. Miklus, 199 Conn. 179, 186, 506 A.2d 549 (1986)
(noting officers’ appeals to Bridgeport Civil Service Commission as to date
of eligibility set by commission in examination announcement).
12
Accordingly, we find inapposite the defendants’ comparison to authority
standing for the proposition that a party who prevails in the trial court by
obtaining the relief sought cannot appeal the trial court’s order to the Appel-
late Court. See Seymour v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114
(2002).
We also find Jones v. Redding, 296 Conn. 352, 363, 995 A.2d 51 (2010),
distinguishable. In that case, the Workers’ Compensation Commissioner
determined that, although the plaintiff’s agreement providing benefits under
the Heart and Hypertension Act, General Statutes § 7-433c, was void ab
initio, the plaintiff was entitled to benefits under the Workers’ Compensation
Act, General Statutes § 31-275 et seq. Thus, ‘‘the plaintiff had prevailed, and
was placed in the same or better position than he was previously as a result
of the decision.’’ Id., 365. Rejecting the defendant’s argument that the plaintiff
had been aggrieved by a portion of the Commissioner’s decision, the court
concluded that the plaintiff was not ‘‘specially and injuriously affected by
the decision’’ in its totality. Id., 366. Relying on the general proposition
that ‘‘a party who has fully prevailed in the court below is not entitled to
appeal from the judgment solely for the purpose of attacking as erroneous
the reasons of the court or its conclusions of law,’’ the court concluded
that the plaintiff’s inability to appeal because he was not aggrieved did
not deprive the Compensation Review Board of jurisdiction to review the
conclusions of the Workers’ Compensation Commissioner (commissioner)
that were not challenged in the defendant’s appeal. Id.
In Jones, the commissioner had issued one decision in which she
‘‘reach[ed] four legal conclusions.’’ Id., 359. That decision was rendered, on
balance, in the plaintiff’s favor, in that the commissioner ordered the parties
to proceed with the administration of the plaintiff’s benefits, albeit under
a different statute, and ordered the defendant to pay the plaintiff benefits
owed to him as a result of the defendant’s unilateral termination of such
benefits. Id., 365.
In the present case, the decision that was favorable to Cotto was rendered
on September 23, 2015. We do not suggest that Cotto was required to appeal
that decision. Rather, Cotto was aggrieved by the decision rendered more
than four months earlier, on May 4, 2015, when the commission announced
the captain examination and its attendant eligibility requirements. Thus,
Jones, involving a single decision containing multiple legal conclusions,
does not control our analysis as to whether Cotto was aggrieved by the
May 4, 2015 decision of the commission.
13
In Walker, our Supreme Court affirmed the trial court’s judgment declar-
ing a promotion examination illegal and contrary to the charter of the city
and the rules of the Civil Service Commission. Walker v. Jankura, supra,
162 Conn. 491. Pursuant to the charter, the personnel director was required
to hold an examination for the position of police inspector within 120 days
of the establishment of a vacancy for such position. Id., 485. The applicants
for the examination were required to possess three years of experience as
a police captain to qualify to take the examination. Id. The personnel director,
however, delayed holding the examination until after the required 120 day
period had passed to allow two candidates to attain the necessary three
years of experience. Id., 486. The court concluded that the civil service
provision of the charter was mandatory, and, thus, affirmed the trial court’s
decision that ‘‘the only reasonable remedy is to order that the list established
as a result of the examination be vacated, the examination be held again
and that the new examination be open only to candidates who possessed
the requisite experience and qualifications’’ as of the date the examination
was required to be held. Id., 487, 491.
14
See also Kelly v. New Haven, 275 Conn. 580, 618 and n.42, 881 A.2d 978
(2005) (noting and collecting the ‘‘line of appellate cases which underscores
that the authority of appointed boards must be exercised in conformity with
the policy underlying a city’s civil service legislation’’); New Haven Police
Local 530 v. Logue, 188 Conn. 290, 300, 449 A.2d 990 (1982) (posts created
by police chief were ‘‘promotions to positions’’ rather than ‘‘appointments,’’
and where charter did not provide chief authority to appoint officers to new
positions, department’s ‘‘long practice of continual deviation from the civil
service rules’’ could not ‘‘override the mandates of the charter’’).
15
We note that the rules of the commission define ‘‘position’’ as ‘‘any
office or employment, either occupied or vacant, calling for the performance
of certain duties and the exercise of certain responsibilities by one individual
either on a full-time or part-time basis.’’ Bridgeport Rules of the Civil Service
Commission, Rule 1. The rules define ‘‘class’’ as ‘‘a group of positions estab-
lished under these rules sufficiently similar in respect to their duties and
responsibilities, (a) that the same title may be used with clarity to designate
each position allocated to the class, (b) that the same requirements as to
experience, education, capacity, knowledge, ability and other qualifications
should be required of the incumbents, (c) that the same tests of fitness may
be used to choose qualified employees, and (d) that the same salary range can
be applied with equity under the same or substantially the same employment
conditions—a single position essentially different from all other positions
in characteristics enumerated above may be considered as a class.’’ Id. Cf.
General Statutes § 5-196 (21) (‘‘‘[p]osition’ means a group of duties and
responsibilities currently assigned or designated by competent authority to
require the services of one employee’’).
16
We note that there has been robust litigation surrounding the commis-
sion and the city’s compliance with the charter. See e.g. Chapman v. Bridge-
port, Superior Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX
(August 20, 1997) (explaining that commission was mandated to abolish two
lieutenant positions where police chief failed to serve notice on personnel
director declaring whether he desired to fill two vacancies and finding that
‘‘the commission failed to comply with § 213 (a) [of the charter] in any
fashion’’); Reyes v. Bridgeport, Superior Court, judicial district of Fairfield,
Docket No. CV-XX-XXXXXXX (January 24, 2013) (noting ‘‘the city’s chronic
failure to timely administer promotion tests in accordance with the charter
and the union’s numerous grievance challenges thereto’’), aff’d, 152 Conn.
App. 528, 100 A.3d 50 (2014).
17
The defendants also highlight the fact that Azzarito, who had been
serving as the twenty-second lieutenant, was being compensated for his
work as a lieutenant.
18
The list provides in full: ‘‘(1) Accomplished a 9% reduction in part 1
Crimes, and increased solvability rates for serious crimes. (2) Reduction in
worker’s compensation claims through Taser implementation and Use of
Force Continuum training. (3) Established random drug testing throughout
the Department for 10% of the sworn population per month. (4) Filled all
ranks in Patrol and Detective Bureau where vacancies existed. (5) Re-
organized Table of Organization in accordance with PERF recommended
‘Interim Model’ (confirmed the position of the ‘fourth’ Deputy Chief,
increased the number of lieutenants to 22). (6) Filled the position of Assis-
tance Chief. (7) Re-configured ‘Compstat’ meetings to a more productive and
meaningful platform. (8) Brought Board of Police Commissioner’s Meetings
back to the Chief’s Office. (9) Re-invigorated the Young Adult Police Commis-
sioner program through Community Outreach. Appointed 12 new Young
Adult Police Commissioners. (10) Facilitated the necessary command struc-
ture to support the Special Operations Division (placed Captains and addi-
tional Sergeant to SET Team). (11) Hired ‘Switzer Associates’ as Recruitment
Consulting Firm. (12) Supported Civil Service with the selection of testing
companies and streamlined the entrance level process (CHIPS card and
Police Apps.com). (13) Established a greater ‘web presence’ through use of
social networking sights including Twitter, and Facebook. Development of
new Department Website is ongoing.’’
19
Chapter 5, § 8 of the charter provides: ‘‘In addition to such acts of the
council as are required by the general statutes or by other provisions of
this charter to be by ordinance, every act creating, altering or abolishing
any agency, office or employment, or assigning or reassigning the same to
departments, fixing compensation, establishing any rule or regulation for
the violation of which a penalty is imposed, or placing any burden upon or
limiting the use of private property, shall be by ordinance.’’
20
We note that ‘‘the legal principle that requires courts to accord deference
to the construction of a statute by the administrative agency charged with
its enforcement . . . does not apply to the construction of a statute on an
issue that has not previously been subjected to judicial scrutiny. . . . In such
instances, the construction of the statute is a question of law for the court.
. . . Moreover, where the judicial interpretation of a rule conflicts with the
administrative interpretation, the judicial interpretation prevails.’’ (Citations
omitted.) New Haven Firebird Society v. Board of Fire Commissioners,
32 Conn. App. 585, 589–90, 630 A.2d 131, cert. denied, 228 Conn. 902, 634
A.2d 295 (1993).
21
Because we conclude that the position had not been established, we
need not decide whether the trial court’s finding that Dunn had not complied
with the investigation provision was clearly erroneous, nor whether the
PERF study satisfied the requirements of an investigation of the need for
additional lieutenants.
22
The plaintiffs also maintain that the defendants failed to raise this claim
before the trial court. The city, however, raised this argument clearly in its
posttrial briefing, and the plaintiffs responded fully. Further, the trial court
addressed it in its memorandum of decision.