275 Conn. 580 | Conn. | 2005
Opinion
The sole issue in this consolidated appeal
Specifically, on October 27, 2000, the plaintiff John Kelly and three other police officers initiated an action against the city; its police chief, Melvin Wearing; the city’s director of personnel, Tina Burgett; and certain members of the board of police commissioners challenging Eligible List 00-16 for promotion to the rank of lieutenant and Eligible List 98-65 for promotion to the rank of detective (Kelly case). On the plaintiffs’ motion, the trial court, Munro, J., issued a temporary injunction prohibiting the defendants from promoting certain candidates until further order of the court. On August 7, 2001, the plaintiff Peter Beckwith initiated an action against the same defendants named in the Kelly case challenging Eligible List 00-31 for promotion to the rank of sergeant (Beckwith case). On May 8, 2003, the plaintiffs Shawn Bums and Peter Beckwith, initiated an action against the city; Wearing, who had since retired; and certain city officials challenging Eligible List 03-02 for promotion to the rank of detective (Bums case).
On appeal to this court, the defendants claim that the trial court improperly concluded that: (1) the charter limits the number of applicants who may be considered for any promotion; and (2) the practice of rounding civil service examination scores violates the charter. To the extent that the claims properly are before this court; see part I of this opinion; we disagree with the defendants and, accordingly, we affirm the partial judgment of the trial court.
The record reveals the following facts that are common to all three cases in this appeal. The plaintiffs are city police officers who sat for and passed civil service examinations for promotion to a higher rank. The charter requires such competitive examination of candidates to determine eligibility for promotion.
A total examination score of 70 percent or higher is required for an applicant to be placed upon an eligibility list. The examination consists of written and oral components. Each component is scored separately; however, those candidates who do not score 70 percent or higher on the written examination are not invited to participate in the oral examination. A computer program utilized by the testing company yields scores calculated to at least two decimal points. The scores are then weighted,
Once an eligibility list has been certified by the civil service board, the fist has no more than a two year life.
When a vacancy occurs for a position, the chief of police chooses which candidate to promote among a prescribed number of candidates on the eligibility list
The prescribed number of candidates who may be considered for promotion are set forth under the “rule of three” adopted by the city. First adopted in 1909, the rule of three was expressed as a requirement that promotion be made from “those applicants, not exceeding three, who shall stand highest” on the eligibility list. The city’s civil service rules, promulgated by the civil service board under authority granted to it pursuant to the charter, similarly limit such promotion.
In practice, before at least 1990, the defendants considered the individuals with the top three scores, calculated to at least two decimal points, for each open position. Because tie scores were relatively rare, the police chief and the board of police commissioners typically would be able to choose among three to four candidates for each open position.
Sometime between 1990 and 1994, the city changed the methodology it uses for promotions within the police department to the one at issue in the present appeal. Under the new methodology, the city personnel director rounds to the nearest whole number the computer generated scores given to the city by the outside testing company.
After the personnel director rounds the scores, she creates an eligibility list by placing those candidates with tie scores into score groups. Thus, the defendants consider all of the candidates equally within the top three score groups created by rounding, rather than the top three individuals, for each promotion vacancy.
The following additional facts relate to the Bums case, the third action filed, but in substance are typical of all three cases. Between January and February, 2003,
In the first round of promotions from this list, the defendant members of the board of police commissioners, on the recommendation of Wearing, promoted thirteen candidates from Eligible List 03-02. All ten candidates from score groups one through five were promoted. Also promoted were one of the four candidates from group seven and two of the four candidates in group eight. Bums, in group six, and Beckwith, in group seven, were among the six passed over by the intended promotions. Thus, candidates whose raw scores would have ranked them at positions twelve, sixteen and nineteen were promoted over Bums at position eleven and Beckwith at position fourteen.
Thereafter, Beckwith and Bums brought their action alleging, inter alia, that the methodology applied to Eligible List 03-02 violated the charter, as well as the civil service rules. They alleged that the defendants were altering examination scores “for the purpose of creating large groups of identically ranked individuals in order to undermine and subvert the [r]ule of [t]hree as well as the mandate in the [c]harter that promotions be made according to merit, free of considerations of race and political favoritism.” Essentially, they contended that the defendants were required to promote from among the top three scoring candidates, according to their raw
Following a hearing, on May 9, 2003, the trial court, Munro, J., temporarily enjoined the promotion of the candidates who were listed sixteenth and nineteenth on Eligible List 03-02. Thereafter, the trial court scheduled a consolidated hearing on the plaintiffs’ claims for declaratory and permanent injunctive relief in all three of the cases presently before this court.
On August 26, 2003, Bums withdrew as a plaintiff in the Bums case, leaving Beckwith as its sole plaintiff, and on September 18, 2003, Beckwith filed a second amended verified complaint. In the first count, brought against all of the defendants, he alleged that the methodology used by the defendants violates the rule of three under the charter, and he requested declaratory relief and a permanent injunction. In the remaining counts, Beckwith sought damages from the individual defendants for alleged violations of: (1) the charter provision prohibiting race-based discrimination; and (2) his federal constitutional right to due process and equal protection.
In September, 2003, the trial court, Pittman, J., conducted a consolidated hearing on the three cases solely on the claims seeking a declaratory judgment that the defendants’ methodology violates the charter and requesting a permanent injunction against the continued use of that methodology. During a four day hearing, the court heard testimony from each side as to the legitimacy of using rounded scores and the effect of
The trial court concluded that the defendants’ methodology was unlawful. Specifically, the court found that “the practice of the [c]ity of (1) rounding off scores so that tie scores are then created, (2) grouping candidates with tie scores into one group as though they all had actually received the identical score on the exam, and (3) promoting from among any of those candidates whose scores fall into the top three score groups, violates the city charter and the civil service rules.” In so holding, the trial court did “not credit the evidence of the [c]ity that, in the administration of competitive examinations for civil service purposes, rounding of multiple decimal point scores to the nearest whole number is justified as either an administrative convenience or as a valid way to eliminate insignificant discrepancies among exam candidates.” Although the court declined to make any findings of fact regarding whether the city’s motivation was cronyism, nepotism or racism, the court did find that the city’s purpose for adopting rounding as a methodology was to create tie scores artificially
The trial court held that, in order to construe the charter in a manner that would not thwart its intended purpose or lead to absurd results, the pertinent language could not be parsed in such a way as to expand the discretion of the promoting authority so that he or she might chose “from among upward of forty or more candidates for each opening.” The court rejected the defendants’ argument that the 1993 revision to the charter, authorizing promotion of “those applicants with the three highest scores,” allows for far greater discretion than the civil service rule authorizing promotion of “those applicants, not exceeding three, who shall stand highest . . . .” Thus, the trial court permanently enjoined the defendants from rounding or otherwise altering competitive examination scores so as to create tie scores and to increase discretion of the appointing authority, and from applying the rule of three to broad score groups created by rounding scores. The court then rendered a partial judgment in each of the three
I
The unique procedural posture in the three cases raises a threshold question as to whether the defendants are appealing from a final judgment. In each case, the trial court rendered a partial judgment addressing only some of the counts brought by the plaintiffs. Prior to oral argument, this court, sua sponte, ordered the parties to file supplemental briefs addressing this issue. We conclude that there is a final judgment in only one of the three cases, the Bums case.
We begin with our well settled principles relating to final judgments. “Because our jurisdiction over appeals, both criminal and civil, is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.” State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). “[W]e begin with the premise that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases . . . the subject matter jurisdiction of the Appellate Court and of this court is governed by statute. ... It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review . . . appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263 . . . .”
“A judgment that disposes of only a part of a complaint is not a final judgment. . . . Our rules of practice, however, set forth certain circumstances under which a party may appeal from a judgment disposing of less than all of the counts of a complaint. Thus, a party may appeal if the partial judgment disposes of all causes of action against a particular party or parties; see Practice Book § 61-3;
That determination in the present case requires an additional step in the analysis because the individual
A
We begin with the Bums case, the last filed, but the one that is most straightforward as to the final judgment issue. The trial court rendered partial judgment for Beckwith, the remaining plaintiff, on count one of his amended verified complaint. Count one was brought against the city and all of the individual defendants and requested declaratory and permanent injunctive relief. The remaining counts name only the individual defendants and seek damages. In their joint supplemental brief, the plaintiffs state that “the equitable claims against the [c]ity employees were against those employees in their official capacity, while all damages/monetary claims were against them in an individual capacity.” (Emphasis added.) Because, under the posture of this case, that construction is reasonable, we conclude that the damages claims are not being asserted against the city. See Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003) (concluding that plaintiffs action not barred by sovereign immunity if complaint “reasonably may be construed to bring claims against the defendants in their individual capacities”). Accordingly, because the partial judgment in the Bums case resolves the only count brought against the city, it disposes of all causes of action against that party, and the requisite finality exists pursuant to Practice Book § 61-3.
B
We turn next to the Beckwith case. The following additional facts are relevant to the issue of finality. Beckwith originally commenced this action on August 7, 2001, in the Superior Court. See footnote 1 of this opinion. In eleven counts naming one or more of the
In October, 2001, the defendants removed the matter to federal court, and, in March, 2002, it was remanded back to the Superior Court due to a stipulation by Beck-with that all of his federal causes of action giving rise to federal jurisdiction were dismissed with prejudice. As a result of this stipulation, the following counts remained before the Superior Court: the first, third and fifth counts seeking only damages from certain individual defendants; the seventh count seeking declaratory and injunctive relief and damages from Burgett; and the eighth and ninth counts seeking declaratory and injunctive relief and damages from all of the individual members of the board of police commissioners.
The trial court issued a partial judgment in favor of Beckwith on counts seven and eight, but issued only declaratory and injunctive relief as to those counts— declaring that the charter had been violated and enjoining the continued practices of rounding the civil service examination scores and applying the rule of three to large score groups created by rounding. Thus, the trial court did not decide the claim for damages in the seventh and eighth counts, and it did not reach the first, third, fifth and ninth counts. On September 23, 2003, the day on which the consolidated hearing began, Beckwith filed a claim for a jury trial on the remaining counts.
Because, inter alia, the ninth count,
C
We now turn to the Kelly case. As we previously have noted; see footnote 1 of this opinion; the plaintiffs, John Kelly, James P. Kelly, Aaron Sweeney and Rebecca Sweeney-Bums, have brought this action against the city, Wearing, Burgett, and certain members of the board of police commissioners, alleging in forty-one counts that the methodology employed by the defendants with respect to the police department’s eligibility lists violates the charter, as well as the plaintiffs’ federal constitutional right to due process via 42 U.S.C. § 1983.
Following the consolidated September, 2003 hearing, the trial court, Pittman, J., rendered a partial judgment in the matter in favor of the plaintiffs on counts one, four, six, eleven, fourteen, sixteen, nineteen and twenty-one. The trial court’s partial judgment granted declaratory and injunctive relief only, however, as to those counts.
On September 23, 2003, the day that the consolidated hearing began, the plaintiffs also filed a claim for a jury trial on the remaining counts. These remaining claims seeking damages include: (1) twenty counts brought against the city; (2) eight counts against Wearing for
After an examination of this procedural history, it is clear that none of the defendants subject to the partial judgment may claim that all causes of action against them have been disposed of in accordance with Practice Book § 61-3. The dispositive fact is that the partial judgment addressed only one of twenty claims brought against the city. Thus, even if we were to construe the claims remaining against the individual defendants as having been brought against them in their individual capacities, the claims remaining against the city preclude finality in this case.
In their supplemental briefs, the plaintiffs and the defendants both contend that the partial judgment granting equitable relief is appealable because the city’s rights are now fixed in relation to the permanent injunction. The plaintiffs cite Glasson v. Portland, 6 Conn. App. 229, 231 n.3, 504 A.2d 550 (1986), for the proposition that an appeal may be heard when an injunction has determined a party’s rights, even though a hearing on damages had not yet been held. In that case, however, all issues raised in the complaint had been resolved by the court. Id., 231. Similarly, in other cases in which a party has been permitted to appeal an injunc
II
We now turn to the merits of this appeal, namely, whether the methodology employed by the defendants, whereby they applied the rule of three to score groups created by rounding, was permissible under the charter. The defendants
Beckwith, the only plaintiff remaining in the Bums case; see footnote 22 of this opinion; responds in kind to the defendants’ two part argument. First, Beckwith contends that rounding or altering competitive scores so as to create unnecessary tie scores and increased discretion for the appointing authority violates the charter because the defendants’ practice thwarts the charter’s purpose of limiting, as far as possible, favoritism and partisanship, and leads to absurd results. Second, Beckwith counters that score grouping violates the clear and unambiguous rule of three language in the charter and civil service rules, which limits the discretion of the promoting authority to choosing from among three applicants. We agree with Beckwith that the trial court properly concluded that the defendants’ methodology violates the charter, although we reach that conclusion by different reasoning.
A
We first outline the relevant evidence: (1) comparing how the defendants previously applied and currently apply the rule of three; and (2) explaining the rationale for using the current methodology. As noted previously, prior to 1990, police civil service examination scores were calculated out to at least two decimal points on a scale of 1 to 100. Both the charter and the civil service rules provided that promotion must be made from “those applicants, not exceeding three, who shall stand
In 1991, the city began the process of revising its charter, with the resulting revisions effective July 1, 1993. The 1993 revision changed the language of the rule of three to provide that promotions from the eligibility lists must be from among “those applicants with the three highest scores . . . .”
The defendants’ change in application of the rule of three to the raw scores as compared to rounded scores is illustrated in the following simplified hypothetical:
Candidate Raw score Score group before rounding
A 89.49 1
B 89.42 2
C 89.42 2
D 88.51 3
E 88.49 4
F 87.62 5
G 87.51 6
H 85.41 7
I 85.41 7
J 84.61 8
K 82.77 9
L 82.61 10
M 82.52 11
Rounded score Score group after rounding
89 1
89 1
89 1
89 1
88 2
88 2
88 2
85 3
85 3
85 3
83 4
83 4
83 4
Under the methodology previously employed by the city, applying the rule of three to the raw scores, A, B, C and D would have been eligible for promotion.
The parties presented the following testimony to the trial court on the merits of using rounding and the effect of employing score groups in testing. The defendants offered testimony by two city officials and an outside consultant to demonstrate that rounding is an accepted practice to account for standard measure of error in testing.
On the basis of this evidence, the trial court, Pittman, J., found that the defendants’ purpose in adopting the practice of rounding was to create artificial tie scores to increase their discretion. In so finding, the court specifically noted that it did “not credit the evidence of the [c]ity that, in the administration of competitive examinations for civil service purposes, rounding of multiple decimal point scores to the nearest whole number is justified as either an administrative convenience
B
Before turning to the merits of this appeal, we first set forth the standard of review that governs this issue. “[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions 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.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003).
“As with any issue of statutory construction, the interpretation of a charter or municipal ordinance presents a question of law, over which our review is plenary.” Broadnax v. New Haven, 270 Conn. 133, 160, 851 A.2d 1113 (2004). We turn, therefore, to our usual tools of
In construing the civil service provisions of the charter, we are always mindful of “the importance of maintaining the integrity of [the city’s civil service] system.” Broadnax v. New Haven, supra, 270 Conn. 161. “Soon
It is these purposes that have undergirded the city’s civil service legislation. “The [civil service] law provides for a complete system 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.
C
In order to ensure that candidates are appointed on the basis of merit and fitness, without partisanship and personal favoritism, the charter and the civil service rules that have been promulgated under it set certain express requirements. The charter and the civil service rules require, inter alia: (1) a competitive examination that, in a fair, nondiscriminatory manner, measures skills needed for the position; (2) a grading scale of 100 points; and (3) a passing grade of at least 70 percent. See New Haven Charter, art. XXX, §§ 160, 167 and 172. Unquestionably, beyond these limitations, the charter vests broad authority in the personnel director to prepare, conduct and score examinations. Id., § 166 (j). This authority, however, does not include authorization
One express limitation on the defendants’ authority is the manner prescribed for the selection of candidates for promotion under the rule of three. Section 160 of article XXX of the New Haven charter provides that promotions are to be made “from those applicants with the three highest scores . . . .” It is unclear from this language whether the defendants may consider, as they contend, all those applicants with the three highest scores, irrespective of how those scores are derived and how many applicants share the three scores, as long as their scoring methodology is rational. As support for their contention, the defendants point to the 1993 revision to the charter, which they claim removed the limitation on their authority to chose among three applicants. Beckwith, by contrast, points to the civil service rule that remains in effect limiting the defendants’ authority to choosing among three applicants as evidence that the 1993 amendment did not expand the defendants’ discretion. We turn, therefore, to the genealogy and legislative history of the charter’s rule of three.
In 1909, the city adopted the rule of three in its charter, requiring that promotions be made “from those applicants, not exceeding three, who shall stand highest
In 1991, the charter revision commission held meetings to discuss potential changes to the civil service provisions of the charter. There was substantial discussion concerning the rule of three and the resolution of tie scores. The vice president of the police officers union advocated a strict application of the rule of three because of his organization’s concern that subjectivity was seeping back into the city’s evaluation process,
In light of this history, we can draw certain conclusions. Although it is clear that some change must have been intended in 1993 by amending the rule of three to the present language, the facts surrounding that change do not suggest that the charter revision commission intended to expand significantly the city’s discretion by virtue of that change. First, the charter revision commission did not adopt as its final recommendation to the board of aldermen any of the specific proposals offered with respect to abandoning the rule of three limitation or expanding to a rule of five. Second, the charter revision commission crafted its language in light of then existing practices, whereby raw scores were used and tie scores were relatively rare. Thus, we cannot assume that the civil service commission intended to endorse the application of the rule of three to large score groups of applicants created by rounding examination scores.
That conclusion is underscored by the fact that a significant, substantive change in the charter’s rule of three should have prompted action to amend the civil service rule to conform to the charter. Indeed, § 164 of article XXX of the charter as revised in 1993 confirms the rules of the civil service board in operation at the effective date of the charter and requires that the board restudy its rules to make necessary changes in accordance with the revised charter provisions. The fact that the civil service board did not amend its rule suggests that it found the civil service rule of three language basically compatible with the 1993 charter revision, thus further suggesting that the charter revision was not meant to implement far broader discretion than that exercised under the old rules.
We also are mindful of the policy that the charter was designed to implement, which similarly militates against a conclusion that the 1993 revision retaining the rule of three significantly expanded the defendants’ discretion as applied under their methodology. The civil service board was designed “to eliminate as far as practicable the element of partisanship and personal favoritism in making appointments.” (Emphasis added; internal quotation marks omitted.) Resnick v. Civil Service Commission, 156 Conn. 28, 33, 238 A.2d 391 (1968). Promotion on the basis of merit, not nepotism, has been
It is clear that the result of the defendants’ methodology is a significant expansion of its discretion in choosing among the most qualified candidates in a pool of candidates who meet the threshold requirement for promotion. Turning again to the 2000 eligibility list for promotion to sergeant, using the raw scores, the defendants would have been able to choose from no more than four candidates, two of those having tie scores. As we have noted previously, that scenario is typical of the defendants’ prior methodology using raw scores. See footnote 24 of this opinion. By contrast, using the rounded scores, the defendant potentially can choose from as many as forty-five candidates.
In keeping with the policy objectives of civil service laws, we recently affirmed a civil service commission’s discretion to set a three year time in grade requirement before a candidate could be eligible for promotion to a higher rank. Mattera v. Civil Service Commission, 273 Conn. 235, 869 A.2d 637 (2005). Notably, we did not conclude that the civil service commission in that case had unfettered discretion to set a limit, even though the city of Bridgeport’s charter simply required candidates to hold a position “for one year or more”; id., 237; rather, we concluded, as did the trial court in that case, that the limit set was not an abuse of the discretion vested in the commission because it was a “ ‘rational standard’ ” and a “ ‘bona fide employment criterion . . . [that] provides both a stable work force and fiscal stability.’ ” Id., 239. In other words, we concluded that the civil service commission had exercised its authority in that case in a manner that furthered, rather than undermined, the pmposes underlying the civil service system. Specifically, in Mattera, we fully adopted the opinion of the trial court, which reasoned: “[I]t cannot be overemphasized that proper competitive examinations are the cornerstone upon which an effective civil service system is built. Any violation of the law enacted for preserving this system, therefore, is fatal because it weakens the system of competitive selection which is the basis of civil service legislation. . . . Strict compliance is necessarily required to uphold the sanctity of the merit system. ... [It is] [s]trict, not technical, compliance [that] is required. . . . Only rational results are allowed. . . .
“As has been the rule during the last sixty years of litigation, the [city] must strictly comply with its mandate to promote a fair and effective civil service system. The object of providing for civil service examinations
Our holding in Mattera is only the most recent in a 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.
By contrast, in the present case, the trial court made a finding of fact that the city’s change in methodology was implemented solely for the purpose of increasing its discretion. The evidence clearly bears out that, whatever the defendants’ intent, the result is broad discretion to choose among a large pool of candidates for each vacancy. The rules, however, clearly are designed to allow the defendants limited discretion in the selection of candidates—in essence, allowing it to pass over a candidate who may lack the personal attributes necessary for the position despite obtaining a passing test
Indeed, another jurisdiction recently has struck down as invalid a methodology designed to broaden greatly discretion in promotions. The Supreme Court of Washington rejected a civil service rule promulgated by the city of Seattle that permitted promotional consideration of “the top . . . [25] percent of the eligible register, or the top five . . . candidates, whichever number is larger . . . .” Seattle Police Officers Guild v. Seattle, 151 Wash. 2d 823, 827, 92 P.3d 243 (2004). The civil service rule at issue in that case was promulgated pursuant to a state statute establishing a prototype civil service system for cities. Id., 832. The prototype suggested a rule of one, but did not require strict adherence by individual cities; instead, the cities were given authority to develop a system that substantially accomplishes the propose of the prototype statute. Id., 834. In affirming the lower court’s decision striking the language allowing appointment from the top 25 percent of an eligibility list, the court concluded that this rule afforded too much discretion to the appointing authority and, therefore, failed to substantially accomplish the purpose of the civil service statute. Id., 830.
Although the defendants in the present case rely on certain cases from other jurisdictions as support for the position that they have not abused their discretion under the charter in applying this methodology, those cases do not support the broad discretion created here. As an initial matter, we note that none of these cases addresses the same methodology applied by the defendants. The cases address either one or the other of the two practices that comprise the methodology here
For example, the defendants cite McGowan v. Burstein, supra, 71 N.Y.2d 733, for the proposition that New York’s highest court has approved zone or band scoring. To the contrary, the court began its opinion by noting that “zone scoring poses a threat to the competitive examination process that serves as the foundation of the merit system. The use of overly broad zones could negate the competitiveness of the test, allow too much room for the subjective judgments of appointing authorities and invite personal and political influence into the selection process. Any practice with such potential must be approached with skepticism.” Id., 732. Due to the nature of the constitutional challenge in the
In Ash v. Police Commissioner, supra, 11 Mass. App. 652, the Massachusetts Court of Appeals held that a personnel administrator had not exceeded her authority when deciding to round test scores to whole numbers. We do not decide in the present case, however, whether the rounding of scores in isolation is an abuse of discretion. Therefore, the Ash decision must be read in light of the factual context in which rounding applied under that civil service system. Under that system, strict rank order was used and, when a promotion decision departed from that strict rank, such that the top scoring applicant was not selected, the decision maker was required by law to submit an explanation for its departure. See Cotter v. Boston, 193 F. Sup. 2d 323, 357 (D. Mass. 2002), aff'd in part, rev’d in part, 323 F.3d 160 (1st Cir.), cert. denied, 540 U.S. 825, 124 S. Ct. 179, 157 L. Ed. 2d 47 (2003). Thus, despite the rounding of scores, the discretion in selecting candidates under that system was quite circumscribed.
Finally, the decision in Akron v. Kettering, supra, 106 Ohio App. 3d 547, which the defendants cite in support
In sum, rather than supporting the defendants’ methodology, the foregoing survey of the case law to which they have pointed us serves to demonstrate the consistency of the limited discretion afforded in promotional decisions under the civil service system. To the extent that these cases recognize that, under certain circumstances, the practice of either rounding scores or creating score groups may be a reasonable exercise of discretion, we need not reach that question. Indeed, we underscore that, although we affirm the judgment of the trial court, we limit our conclusion to the facts at bar. Our holding applies to the defendants’ methodology as a whole, which circumvents the letter and undermines the spirit of the charter’s civil service provisions by allowing consideration of large groups of candidates for a single vacancy. This court will not endorse an effort to interpret out of existence the legislative check on discretion that the legislators have chosen to keep in place.
In this opinion the other justices concurred.
This appeal arises from partial judgments rendered in three separate, but similar, cases brought by various plaintiffs. Because the cases raise the same issues for review by this court and arise out of substantially similar facts, the defendants filed a consolidated appeal for administrative convenience. Due, however, to the differing procedural posture of the three cases, we treat them separately.
Article XXX, § 172, of the New Haven charter provides in relevant part: “No person . . . shall be appointed, promoted, reduced, removed, or in any way favored or discriminated against because of race, sex, age, national origin, orpolitical or religious opinion or affiliation. No person shall willfully or corruptly make any false statement, certificate, mark, rating or report in
Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”
In the 2003 Bums case, Beckwith also made allegations concerning the October, 2000 civil service examination for promotion to detective that was the subject of the case he initiated in August, 2001. See footnote 1 of this opinion.
Article XXX, § 167, of the New Haven charter provides in relevant part: “[A]ll appointments and promotions . . . shall be made according to merit and fitness to be ascertained as far as practicable by competitive examinations.”
Although it appeal's from the record that, at some point, the civil service board was known as the civil service commission, we refer to that body as the civil service board for purposes of clarity.
The examination at issue in the Bums case weighted the oral and written components equally, whereas the examinations subject to the earlier actions may have afforded greater weight—60 percent—to the written examination score.
Rule IV, § 2, of the New Haven civil service rules provides: “An eligible list shall be in effect from the date on which it is promulgated.” Section 3 of rule IV of the New Haven civil service rules further provides: “Eligible lists shall be in effect for a period of at least one year but not more than two years from the date of promulgation.”
Rule III, § 9, of the New Haven civil service rules provides: “The examination grades shall be based on a scale of one hundred points. No appointments or promotions within any class shall be made except from those applicants, not exceeding three, who shall stand highest on the list of those who shall have passed an examination of at least seventy percentum and have received a certificate to that effect from the Civil Service Board and are upon the list, of those eligible to such position or promotion under the rules of said board, except supernumerary policemen and substitute firemen.”
Article XXX, § 160, of the New Haven charter provides in relevant part: “Whenever [the civil service] board shall have adopted rules relative to the appointment or promotion of any class of such officials, no appointments or promotions within such class shall be made except from those applicants with the three highest scores of those who shall have passed an examination with a score of at least seventy percentum and have received a certificate to that effect from said board, and are upon the list of those eligible to such position or promotion under the rules of said board, excepting supernumerary police and substitute fire personnel. . . .”
The scores on Eligible List 03-02, which is the subject of the Bui'ns case, may have been rounded by the outside tester, rather than by city personnel.
The plaintiffs made an offer of proof that: (1) Wearing had engaged in a pattern of using his discretion, as it was increased by the defendants’ methodology, to discriminate on the basis of race and to promote less qualified applicants over those with higher scores and better records of service; and (2) the former chairman of the board of police commissioners had made a statement to a news reporter that the city takes into consideration the racial makeup of the police department when making promotion decisions. The trial court refused to hear this testimony in full due to the limited nature of the hearing, which focused on whether the defendants’ methodology violated the charter, not whether their motive for that methodology violated article XXX, § 172, of the New Haven charter or the federal constitution. The plaintiffs have requested a jury trial on the remaining issues in each of the three cases.
The defendants appealed to the Appellate Court from the partial judgments of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in 1he Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either parly is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict,
Practice Book § 61-3 provides in relevant part: “A judgment disposing of only a part of a complaint, counterclaim, or cross complaint is a final judgment if that judgment disposes of all causes of action in that complaint, counterclaim, or cross complaint brought by or against a particular party or parties. . . .”
Practice Book § 61-4 (a) provides in relevant part: “When the trial court renders a judgment to which this section applies, such judgment shall not ordinarily constitute an appealable final judgment. Such a judgment shall be considered an appealable final judgment only if the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs. . . .”
The ninth count alleges a violation of the charter provision prohibiting race discrimination. As we have noted previously, the trial court, Pittman, J., expressly declined to make findings concerning the issue of discriminatory intent due to the limited nature of the September, 2003 hearing. See footnote 12 of this opinion.
Therefore, although the trial court found for the plaintiffs on counts four, fourteen and nineteen, it did not hear testimony on, or grant relief as to, the monetary relief requested in those counts.
It is unclear from the record why the count against Burgett, which is substantially similar to the counts on which the trial court ruled, was not included in the partial judgment.
Accordingly, we need not decide whether it is plausible to construe the eight counts remaining against Wearing (alleging violations of the charter provision barring discrimination and the right to due process) and the one count remaining against Burgett (alleging a violation ol' the charter) as having been brought against them in their individual capacities.
Because we conclude that there is finality in one of the cases, we are able to reach the merits of the defendants’ claims regarding the legality of the methods employed by them in the formulation of the eligibility lists for the police department promotions. We note that, although our decision as to the merits of the defendants’ methodology is technically limited to the Bums case, in which there is a final appealable judgment, the trial court in the Kelly and Beckwith cases necessarily will be bound by the charter interpretation expressed in this opinion. See, e.g., Almada v. Wausau Business Ins. Co., 274 Conn. 449, 457, 876 A.2d 535 (2005) (concluding that trial court was bound by this court’s interpretation of exclusivity provision of Workers’ Compensation Act in DeOliviera v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 [2005]).
Because we have concluded in part I of this opinion that finality exists only with respect to the partial judgment rendered in the Bums case, references to the defendants in part II of this opinion refer to the city and those city officials who have been sued in that case in their official capacity. Beckwith is the only remaining plaintiff in the Bums case and we refer to him by name.
The defendants also claim that the trial court improperly determined that General Statutes § 7-414 bears on the issue before us. We agree with the defendants that § 7-414 is inapposite here, in part because General Statutes § 7-407 expressly provides that the civil service requirements set forth in General Statutes §§ 7-408 through 7-424 may be adopted at the discretion of the municipality. See General Statutes § 7-407 (providing in relevant part that “[a]ny political subdivision of this state may adopt the provisions of this part [of chapter 113 of the General Statutes entitled ‘Merit, System’ governing municipal employees] in the manner hereinafter provided”).
The defendants contend that tie scores were not uncommon prior to their rounding of scores. In support of that contention, the defendants submitted a 1990 eligibility list for one position wherein thirty-four raw scores resulted in nine tie score groups, with the groups ranging in size from two to seven candidates. The parties submitted several other eligibility lists, however, in connection with the September, 2003 hearing that amply could have supported a conclusion by the trial court that the 1990 eligibility list was an anomaly: among the fifty-six raw scores of Eligible List 03-02, there were no ties; among the thirty-five raw scores of Eligible List 00-16, there were no ties; among the 149 raw scores of Eligible List 00-13, there were only five pairs of candidates with tie scores; and among the 106 raw scores of Eligible List 98-65, there were only six pairs of candidates with tie scores.
See footnote 10 of this opinion for the revised text of article XXX, § 160, of the New Haven charter.
Within the twenty score groups created by rounding there were two groups of two candidates, three groups of three candidates, one group of four candidates, three groups of five candidates, one group of six candidates,
As we noted previously, in reality, the board of police commissioners often makes multiple promotions at one time.
Indeed, the trial court’s memorandum of decision reflected that the defendants in fact engaged in such a practice, noting that the defendants “would sometimes chose to skip over all or nearly all candidates in an entire score group to reach those with lower scores for promotion.” The court noted as an example that, under Eligible List 98-35, which was challenged in the Kelly case, everyone in score group ten was promoted, while eleven people who scored in the two higher score groups were passed over.
Specifically, Noelia Marcano, previously a senior personnel analyst in the city’s department of human resources and currently the chief examiner, testified that she was instructed by her supervisor, around the time she was hired in 1994, that rounding of scores was one way to deal with the standard measure of error in the examination process. She also testified that the standard measurement of error cannot be eliminated because tests in and of themselves are not a perfect measurement and that rounding, like using scaled scores or score ranges, is one of the methods utilized in her field to address the standard error. When asked on cross-examination if she was able to offer a reliable opinion regarding statistical margins of error in the testing procedure used by the city in the police department, she answered that she was not. Marcano indicated that she had not been involved in the decision to begin rounding scores, nor was she aware of a vote by the civil service board to commence the practice of rounding. Burgett, the city’s personnel director since December, 1998, testified that she believed it was appropriate, based on her expertise, to round scores to whole numbers and that fractional scores do not represent a difference in substantive knowledge of the subject matter among the candidates. She was unable to say when, why or by whom the decision to round scores was made, and she confirmed that there is no record of either a decision by the previous director of personnel or a vote by the civil service board or by the board of aldermen to round scores. She did state that, upon assuming her responsibilities as personnel director in 1998, she made the decision to continue the practice because she believed it to be valid and saw no reason not to continue. Bruce Davey, the outside consultant who designed and implemented the
Egan testified that the city did not implement the practice of rounding with respect to the fire department civil service examination until 1996.
The defendants have challenged as clearly erroneous the trial court’s conclusion regarding the lack of necessity for tie scores on the ground that their evidence as to the merits of rounding was unrefuted. “As we have stated, [i]t is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses. . . . [T]he trial court is not bound by the uncontradicted testimony of any witness.” (Citations omitted; internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 266 Conn. 544, 562, 833 A.2d 891 (2003). More significantly, we do not rest our conclusion on the trial court’s findings as to whether the defendants’ motives in adopting this methodology was proper. Rather, our focus is whether the results of the application of this methodology are consistent with the charter’s rule of three and its directive that promotions are to be made, as far as practicable, by competitive examinations. The defendants’ witnesses did not offer testimony as to whether its methodology was necessary to effectuate the purpose underlying the charter and its rule of three, nor did they offer justification for its application to a particular examination or type of merit assessment. We, therefore, need not consider the defendants’ contention as to the trial court’s finding.
Moreover, with respect to the defendants’ construction of the charter, we note “that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation.” (Internal quotation marks omitted.) DaimlerChrysler Services North America, LLC v. Commissioner of Revenue Services, 274 Conn. 196, 202, 875 A.2d 28 (2005). “[WJhere the judicial interpretation of a rule conflicts with the administrative interpretation, the judicial interpretation prevails.” New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn. App. 585, 590, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).
The defendants do not claim that their construction of the charter, as revised in 1993, is time-tested. To the extent, however, that the defendants assert that one of the two practices at issue here, score grouping, is time-tested, we note that, “[a]n agency’s interpretation of a rule that clearly violates the rule’s intent cannot become legal merely by the passage of time.” Id., 591. Moreover, their interpretation has not withstood judicial scrutiny. The first judicial challenge to the city’s methodology resulted in the trial court’s finding that the city’s construction of the charter could lead to results that would be “absurd by any description . . . .” See Bombalicki v. Pastore, supra, Docket No. CV378772 (concluding that methodology was improper but rendering judgment in defendants’ favor on ground that plaintiff had been promoted to rank sought and thus court could not issue any meaningful relief).
We acknowledge that the minutes from such meetings are, by their nature, meant merely to summarize the content and not to provide exact quotations of the discussions that took place. To the extent, however, that they reflect general topics considered at these meetings, we find them to be a useful tool in analyzing the legislative history here.
The minutes of the October, 1972 special meeting of the civil service board provide in relevant part: “The Secretary next stated that he had taken up the question of resolving ties with the Federal Civil Service Commission Office. He was advised that their system apparently is the one followed by the Civil Service Commission, and was also advised that it was believed that the New Haven Civil Service Commission had copied the Federal System i.e. that when an exact tie exists the candidates are listed alphabetically. The Secretary also reports that apparently the Federal System has a ‘rule of three’ with which it operates.
“A discussion of the inequities of the above solution was had, and then by motion, duly made and seconded, it was
“VOTED, that in the future eligible lists upon which there are ties shall be resolved by giving to all of the tied candidates the same chronological number.
“It was agreed that any eligible list upon which ties appear in the future, will carry an explanation at the end of said list, and that the tied candidates number will carry an asterisk after the same.”
This decision reflected a deliberate decision to depart from the federal model upon which the city’s rule of three was based. See footnote 34 of this opinion. At that time, under the federal model, candidates with tie scores were listed alphabetically, and the rule of three strictly was applied to the eligibility list so that no more than three candidates could be considered for each promotion. Thus, under the federal model, if A received a score of ninety-eight, B received a score of ninety-seven, and C and D each received a score of ninety-six, only A, B and C would be considered for promotion. D could not be considered until one of the other three candidates had been selected for promotion.
Specifically, the July 17, 1991 minutes reflect that the vice president of the police officers union was “concerned with the practice of the [rule of three]. Their issue is with the tied scores on exams making the number of eligible candidates as high as [forty-five] or more.” The defendants contend that these remarks indicate that the 1993 revision was intended “to conform to what appears to have been the practice even prior to the change in the text.” In our view, it is unclear from this notation in the minutes whether the union official is indicating that, in 1991, tie scores as numerous as those in the large score groups created by rounding existed or whether he was raising a concern that one of the proposals before the charter revision commission could result in such broad discretion. There is no evidence in the record, however, that would support the conclusion that raw scores resulted in large groups of candidates with tie scores as with rounding. See footnote 24 of this opinion and the accompanying text. Moreover, there is no evidence that rounding was utilized prior to 1993. Indeed, the only eligibility list in the record from the period before the 1993 amendment to the charter’s rule of three reflects raw scores.
Although the charter revision commission may recommend changes to the charter, the board of alderman ultimately is charged with enacting, repealing and amending charter provisions. See General Statutes §§ 7-188 through 7-191; New Haven Charter, art.. IX, §§ 37, 41 and 42; see also New Haven Charter, art. XXXIX, § 216 (mandating decennial charter review by charter revision commission).
In this regard, it is noteworthy that, according to the minutes of a July 17, 1991 charter revision commission meeting, Controller Ralph W. Halsey III addressed the topic of personnel and the civil service section of the charter and indicated that “[o]ne of the problems with [personnel and [c]ivil [sjervice is the discrepancy between what is contained in the charter . . . and what is practice.”
The forty-five candidates consist of ten with a score of seventy-eight,, twenty-two with a score of seventy-seven and thirteen with a score of seventy-six.
This is especially so in light of the allegations made by the plaintiffs in each of the three consolidated actions here, which, if true, soundly demonstrate that the purpose of the civil service legislation is subverted by the application of the methodology at issue. For example, the plaintiffs in the KeUy case allege that Sweeney-Bums was one of five candidates placed into a score group who was passed over for promotion in favor of seven candidates with lower examination scores and problematic service records but who were a different race favored by the appointing authority. They also allege that the only, candidate of Sweeney-Bums’ race who was promoted from a score group below her on the eligibility list was the son of the former police chief. Thus, the plaintiffs complain of exactly the abuse of discretion based upon nepotism and racism that the civil service system is meant to prevent.
We note in this regard that the city’s board of aldermen was approached with proposals to change the charter shortly after judgments had been rendered by our trial courts, holding that the defendants’ current methodology violates the charter. Specifically, in June, 2002, the charter revision commission submitted a report to the board of aldermen as part of its mandated decennial review of the charter including a proposal to change the rule of three to allow promotion selections to be made from “the seven highest ranks, instead of the three highest scores.” In an August, 2002 letter, Lindy Lee Gold, an alderwoman, asked, when submitting that report to the board of aldermen, that the board support the change to the civil service rule to remedy the constraints imposed under recent court interpretations concluding that the city was violating the charter: “[the] New Rule of Seven and new legislative history on file will give the City flexibility in hiring without compromising civil service and takes the hand-cuffs off the City that were imposed by recent judicial interpretation of the Rule of Three.” Apparently, a ballot question was submitted to the voters asking whether to adopt the proposed revisions to the charter, including the change to the rule of three, but the voters rejected the revisions. To date, the board of aldermen has not changed the charter rule of three.
In numerous cases, this court has underscored limitations on the authority to act under a civil service system, as informed by the underlying purpose of that system. See, e.g., Broadnax v. New Haven, supra, 270 Conn. 160 (city could not underfill higher position in order to fill lower positions when practice runs counter to civil service rules and makes little sense in system where board of aldermen is required to approve budget); Civil Service Commission v. Pekrul, 221 Conn. 12, 601 A.2d 538 (1992) (commission did not have authority to define assignment as “lateral move” rather than “promotion” in order to avoid choosing from highest candidates on eligibility list); Cassella v. Civil Service Commission, supra, 202 Conn. 34-35 (good faith does not justify departure from promotion made according to merit and fitness as ascertained by competitive examination); New Haven Police Local 530 v. Logue, 188 Conn. 290, 297, 449 A.2d 990 (1982) (police department could not avoid civil service examinations by classifying reorganization as “duty assignments” rather than “appointments”); State ex rel. Gaski v. Basile, 174 Conn. 36, 38, 381 A.2d 547 (1977) (board could not ratify appointment based upon expired eligibility list); Walker v. Jankura, 162 Conn. 482, 294 A.2d 536 (1972) (personnel director did not have authority under civil service provisions to change timing of examination for purpose of increasing pool of candidates by two); Ziomek v. Bartimole, 156 Conn. 604, 610, 244 A.2d 380 (1968) (authority of board of police commissioners was exceeded through implementation of oral examination lacking uniformity and prear
The defendants also cite Guardians Assn. of New York City Police Dept., Inc. v. Civil Service Commission, 630 F.2d 79, 100 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S. Ct. 3083, 69 L. Ed. 2d 954 (1981), and Application of Bettine, 840 P.2d 994, 996-97 (Alaska 1992), for the proposition that rounding is an appropriate practice. Those cases are inapposite. The Second Circuit never expressly addressed the issue of rounding scores, and the issue before the court was whether the examination itself, not the scoring, constituted a legitimate attempt to choose candidates based upon merit in compliance with Equal Employment Opportunity Commission guidelines. Guardians Assn. of New York City Police Dept., Inc. v. Civil Service Commission, supra, 82. The Alaska Supreme Court’s decision in Application ofBettine, supra, 994, addresses the propriety of grading essay answers to a bar examination on a scale of one to five using whole numbers. Neither the type of test nor the scoring of that test is at all similar to the present case, and the policies underlying the construction of civil service rules would have no bearing on bar1 examinations. It is interesting to note, however, that the defendant’s expert in Application ofBettine testified that “most states” use the same methodology as the Alaska bar examiners. Id., 997. In contrast, Bruce Davey, the defendants’ testing expert in the present case, testified that experts in his field have divergent opinions with respect to how one should adjust for standard error of measurement and whether rounding or banding is appropriate and, if so, to what extent.
Notably, in the New York case, the defendant rarely used the band scoring approach and when it did so, its purpose was primarily to focus on specific job considerations. McGowan v. Burstein, supra, 71 N.Y.2d 733-34. This approach is in stark contrast to the situation presently before this court where the defendants apply their methodology routinely, do not seek to limit its effect, and do not provide a justification for its application to any particular examination or type of merit assessment.
“While courts should draw on the findings of experts in the field of testing, they should not hesitate to subject these findings to both the scrutiny
