4 Conn. App. 168 | Conn. App. Ct. | 1985
The plaintiff is seeking a writ of mandamus
The trial court found the following factual situation: The plaintiff was hired as a part-time clerk-typist for the commission in 1968. In 1971, she was promoted to a full-time position as a clerk-typist. In 1972, she was promoted to secretary of the commission and became a permanent and classified employee of the town of Wallingford. In 1981, she was appointed as a temporary planning aid for the commission and, on September 4, 1981, was classified as a permanent aid.
On June 15,1983, the plaintiff received a letter from the mayor advising her that she was dismissed from that position, effective June 16,1983, pursuant to Rule
The plaintiff claims to have exhausted her administrative remedies, and initiated this action seeking her reinstatement.
The sole issue before us is whether the mayor is the plaintiff’s appointing authority. This hinges on whether a “commission” is synonymous with “board” under the Wallingford charter.
It is well settled that a city’s charter is the fountainhead of municipal powers. The charter, serving as an enabling act, both creates power and prescribes the
It must be presumed that the town council had a purpose for every sentence, clause or phrase in its regulation. “A regulation ought to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.” J & M Realty Co. v. Norwalk, 156 Conn. 185, 192, 239 A.2d 534 (1968). That the Wallingford town charter recognizes a distinction between “commissions” and “boards” is manifested throughout the charter. Several instances follow. Chapter I, § 2 provides, in part: “If any contract has . . . with reference to the same upon any such commission, board, department or officer shall . . . .” (Emphasis added.) Chapter III, § 5 provides,
Mandamus and mandatory injunction are both extraordinary remedies. Relief by way of mandatory injunction is granted in the sound discretion of the court and only under compelling circumstances. Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982). It is well settled in this jurisdiction “that a writ of mandamus may issue only when three conditions exist: (1) The law imposes a duty— the performance of which is mandatory and not discretionary—on the party against whom the writ is sought; (2) the party applying for the writ has a clear legal right to have the duty performed; (3) there is no other adequate remedy.” Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 717, 427 A.2d 866 (1980).
We agree with the trial court that the plaintiff has failed to sustain her burden of proof that she has a clear legal right to the remedy.
There is no error.
In this opinion the other judges concurred.
A temporary order of mandamus was originally sought, but the parties have been treating it as a permanent order. As a temporary mandamus, it would not qualify as a final judgment. Doublewal Corporation v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985). The parties have bifurcated the issues so that the only one involved in this appeal deals with the authority of the mayor to discharge the petitioner without being concerned with the merits of the discharge.
Rule XII, § 2 of the Wallingford Personnel Rules and Regulations provides: “Permanent employees in the classified service may be dismissed from employment by an appointing authority when he shall determine such dismissal necessary to the best interests of the service or the effective performance of department responsibilities.”
The exhaustion of administrative remedies issue has not been raised since the parties felt it is questionable whether an appeal lies from action of the board.
Chapter V, § 3 of the Wallingford charter provides: “The mayor shall appoint all department heads and other officers and employees of the town, except as otherwise specifically provided by this charter and except employees in the offices of elected officers or boards and officers and boards appointed by the council.”
Rule II of the Wallingford Personnel Rules and Regulations provides: “the Appointing Authority shall be the ccmmission, board, department head or official authorized by statute, charter or regulation, to appoint employees of the Town of Wallingford.” (Emphasis added.)