This appeal arises out of two consolidated actions wherein the plaintiffs sought and obtained writs of mandamus compelling the defendant city of New Britain to promote each of the three plaintiffs to the position of lieutenant in its fire department. The defendants
The trial court found the following facts. On August 13, 1980, the defendant civil service commission issued a promotional list of seventeen firefighters, in order of rating, who had passed promotional examination P-651 and who could therefore be promoted to fill vacancies in the New Britain fire department with the rank of lieutenant. The promotional list was, by operation of chapter 3, § 372, of the New Britain charter, effective for one year only.
Nearly two years after these actions were instituted, the city of New Britain moved for their dismissal on the ground that the plaintiffs had not exhausted their administrative remedies prior to bringing suit, thus depriving the trial court of jurisdiction. The court noted that the written motions were not timely, and that similar motions, made orally on August 14, 1981, shortly after the actions commenced, had been denied. Nonetheless, the court reviewed the merits of the claim and concluded, in a thorough memorandum of decision, that the subject matter of the actions was not "within the purview of the collective bargaining agreement" and, therefore, could not be dealt with in a grievance. The court therefore concluded that the plaintiffs had not failed to exhaust their administrative remedies and denied the motions to dismiss.
After a trial, the court found that there were at least three vacancies in the position of lieutenant in the New Britain fire department on and before the expiration of the promotional list on August 13, 1981, which were improperly held by persons with provisional appointments
In their appeals, the defendants claim that the court erred (1) in denying their motions to dismiss the complaint on the ground that the plaintiffs had failed to exhaust their administrative remedies, and (2) in concluding that four additional vacancies existed at the rank of lieutenant during the existence of and on expiration of the promotional list. This latter claim of error is made in three separate arguments in their brief. The plaintiffs' cross appeal claims as error (1) the court's failure to accept their "domino theory," (2) its conclusion that the list automatically expired at the end of one year, (3) its conclusion that the defendant acting personnel director for the city was not required to take affirmative steps to cancel or terminate the promotional list, and (4) its failure to deny the defendants' motions to dismiss the actions on the additional ground that the grievance procedure was not an adequate remedy to secure the desired result.
General Statutes (Rev. to 1979) § 7-474 (g) provides: "The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining." (Emphasis added.)
The defendants' remaining claims relate to the court's conclusion that four vacant lieutenancies existed in the fire department during the existence of and on termination of the promotional list. This conclusion, according to the defendants, was unsupported by the evidence and was based on an erroneous finding that the four provisional appointments of privates to the rank of lieutenant were improper.
We have reviewed the record, and we conclude that the trial court's conclusion was amply supported by the evidence. The defendant, Walter McCusker, who was acting personnel director for the city of New Britain during the time the list was in effect, testified that there were thirty-one active lieutenancies listed on the city personnel records at all relevant times. He further testified that there were only twenty-six or twenty-seven lieutenants in the ranks as of August 13, 1981. Salvatore M. DeAngelis, then acting clerk of the fire board, testified, however, that thirty-three people were receiving lieutenant's pay at the time. In addition, there
The defendants' further argument is that these provisional appointees were, in fact, "acting" appointees as provided for by § 10:2 of the collective bargaining agreement. That provision, however, does not create an "acting" class of employees. Rather, it merely provides that if a firefighter serves for at least one full day or more in a higher employment capacity, then that employee must be paid the minimum wages of the higher rank for that position while temporarily performing the duties thereof in an acting capacity. This clause in the collective bargaining agreement is found in article ten, entitled "Wages." It does not deal with the appointment process, and is consistent with the provisional appointment provision of § 375 of the charter of the city of New Britain. Section 375, however, expressly limits provisional appointments to a maximum of three months. In the present case, Dzwonkowski, Janelle and DeAngelis had been serving as provisional lieutenants for periods in excess of that maximum. Under these circumstances, we conclude that the court did not err in characterizing the defendants' promotional practices as "an intentional, flagrant and substantive violation of the Merit Act."
Finally, the defendants assert that the court's "creation" of four openings in the ranks of lieutenant usurped the exclusive power of the city to create such
With regard to the plaintiffs' cross appeals, since no further practical relief could follow from a review of the issues presented therein, the cross appeals are moot. Bridgeport Jai Alai, Inc. v. Gaming Policy Board, 3 Conn.App. 254, 256, 487 A.2d 208 (1985).
There is no error on the appeal and the cross appeals are dismissed.
In this opinion the other judges concurred.