Opinion
No. CV 98-0412193 S, CV 89-0288183 S
July 25, 2003
MEMORANDUM OF DECISION
The plaintiffs in the above two cases have filed a motion for contempt in each file for claims arising out of conduct of the defendants pertaining to a single set of events that the plaintiffs claim should result in a contempt finding in each file. The court's holding and orders in each file is different.
These motions for contempt were heard on January 21, 2003. Because of agreed-to extensions, the parties' briefs were not submitted until June 6, 2003.
The Firebirds case is a matter brought by a New Haven minority firefighters' association challenging a promotional practice of the defendants called stacking. The trial court found stacking in violation of the law and issued orders which included prohibiting it from occurring in the future. Stacking is the "promotion subject to assignment" off of a promotional list immediately prior to its expiration when there are no present openings to promote into; thus, the promoted individual waits until a vacancy occurs, long after the promotional list has expired, to assume the promotional position.
The Broadnax case is a matter brought by certain individual New Haven firefighters challenging a promotional practice of the defendants called underfilling. This court found that underfilling by promotions to positions not budgeted for, but instead, utilizing budget allocations for higher level officers was in violation of the City charter and law and ordered the practice to cease.
Certain promotions that have been made within the City of New Haven Fire Department are claimed to be in violation of court order in either or both cases.
The court finds the following facts necessary for the disposition of CT Page 8453-lw these motions for contempt.
As a part of the 2001-2002 Personnel Budget of the City of New Haven Fire Department Tommy Michaels who holds the rank of Lieutenant is shown on the budget as underfilled to a Captain's position. Michael Celantano, Jr. is a Firefighter I; he is not an EMT (Emergency Medical Technician). Damien Wright and Michael Neal are Firefighter I as well, not EMTs. In the personnel budget for 2001-2002 (July 1-June 30), Michael Celantano was assigned to the office of the Fire Marshall as Fire Inspector, but slotted as a FF I/EMT II, which has the same salary as a Fire Inspector. There were no open budget positions in the Fire Marshall's office for a Fire Inspector. It is in the defendants' actions, with regard to Michael Celantano, Wright and Neal, that are challenged here.
Tommy Michael
Tommy Michael was underfilled to Battalion Chief position when he was promoted to Lieutenant on August 11, 1999. Thereafter, when a captain's position opened up on July 18, 2001, as displayed on the budget, he was shifted to an underfill to a Captain's position, which is a lower paying position than Battalion Chief but higher than Lieutenant. Both of the dates of underfilling are prior to the court order barring underfilling. Michael's promotion to lieutenant on August 11, 1999 was off a valid lieutenant's list, and he assumed his duties as lieutenant immediately, though he was underfilled as described above.
With regard to Tommy Michael, none of the conduct of the defendants violated either the Firebirds or Broadnax court order, all of the defendants' actions predating the Broadnax court orders.
Michael Celantano, Jr.
Michael Celantano,. Jr. is a Firefighter I. As of May 2, 2001 he was assigned to the Fire Marshall's office as a Fire Inspector. The salary of a Fire Inspector is the same as the salary of an FF I/EMT II. When he was assigned to the Fire Marshall's office as a Fire Inspector, there were no budget openings to that position and he was underfilled to a FF I/EMT II position. Fire Inspector is paid more than a Firefighter I.
Assignment to the Office of Fire Marshall as Fire Inspector is not made off a promotional list. No civil service examination is held for candidates to the position.
Placing Celantano in the position of Fire Inspector where there was no opening in the budget for it, by filling him in on the budget ledger to an CT Page 8453-lx open Firefighter I/EMT II slot is similar to underfilling as it has been described in the Broadnax decision. It is not stacking as described in the Firebirds decision. Since Celantano was assigned to the Office of the Fire Marshall as of May 2, 2001, this assignment predated the court order prohibiting underfilling. Therefore, it did not violate it.
Damien Wright and Michael Neal
Damien Wright and Michael Neal were among a class of probationary firefighter trainees with the New Haven Fire Department in 2002. On June 19, 2002 both Wright and Neal were promoted to Firefighter I. However, in the budget, they were both slotted as filling Firefighter I/EMT II positions. Neither Wright nor Neal was an EMT on June 19, 2002.
Firefighter I/EMT II positions are budgeted (and paid) more than Firefighter I positions. By the bargaining agreement between the City and the Firefighters' union, EMT II employees are paid an additional $2.20 per hour. The allocated difference in the 2001-2002 Personnel Budget is $48,745 for a Firefighter I and $53,972 for a Firefighter I/EMT II, as approved by the Board of Aldermen.
The City of New Haven, by budgetary process, has always carried probationary firefighters in a Firefighter I pay grade in its annual budget. However, in the same budget, the City shows the savings to the City of the pay grade differential between probationary firefighter and Firefighter I. The budget as adopted by ordinance shows this complete picture; when the aldermen adopt the budget it reflects the true cost of probationary firefighters, and the true number of approved probationary firefighters and Firefighters I.
The manner in which the City carried Wright and Neal on the budget was essentially the same as had been done in the underfilling that has been barred by injunctive order of the court. That order pertained to underfilling for promotions within the Civil Service. In the matter of Wright and Neal, they were promoted to Firefighter I, for which they were slotted. However, neither was an EMT II for which their slot was also designated. Therefore, the City of New Haven budget did not reflect their status accurately, as a result of how they were slotted. Put another way, the defendants promoted them to positions for which there were no openings; instead underfilling them to a higher skilled, higher paid position.
The plaintiffs seek a finding of contempt for these actions of the City, under both the Broadnax and the Firebirds case. The court finds no violation of the Firebirds orders. The conduct is not stacking. It is CT Page 8453-ly underfilling.
In order for the court to find the defendant City in contempt of the Broadnax court orders, it must first find that the order was clear and unambiguous as applied to the facts here and that the defendant wilfully violated the court order. Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).
The defendant argues that the promotion from probationary firefighter to Firefighter I is really an entry level hire and not a promotion from within the ranks of the Fire Department. Beyond making this blanket argument, the City provides no law in furtherance of its position. Instead, it expresses frustration that the claims of the plaintiffs have been a moving target. Initially plaintiffs challenged the City's intention of making more Firefighter Is than there were slots for. Because of retirements (and one withdrawal by a candidate for consideration) the plaintiffs' claims were reduced to those before court. The probationary firefighter attends the Fire Academy; essentially Firefighter I is a new hire from the ranks of those who succeed at the Academy.
Once again, the City's conduct with Wright and Neal creates a sense of manipulation and an alteration of the results in decision making by the defendant City that allocates funding differently than was passed in the budget by the Board of Aldermen. It could be asked why not underfill for additional Firefighter Is. Why stop at Wright and Neal. Just as the civil service is meant to promote excellence and fairness free from manipulation, hires as well as promotions should be in compliance with all of the law, including the budget as adopted.
Arguably the City could rationally perceive the court order prohibiting underfilling to pertain only to promotions from within ranks, since that was what was at issue in the trial. For every other instance, the City has asserted that it intends to comply with the court order. Therefore, though a violation has occurred here, the court finds it is not willful because the City could reasonably distinguish between a promotion from within ranks and a promotion from probationary to Firefighter I.
The court concludes, however, that it is within its inherent power to ensure that its court orders are fully complied with.
Underfilling an individual to a position that there are no funds for by utilizing funds from another position has been found by this court to be contrary to law. The court so finds in the case of Wright and Neal. CT Page 8453-mz
"We reject this hypertechnical understanding of the trial court's continuing jurisdiction to effectuate prior judgments. We conclude, instead, that the trial court's continuing jurisdiction is not separate from, but, rather, derives from, its equitable authority to vindicate judgments. Moreover, we hold that such equitable authority does not derive from the trial court's contempt power, but, rather, from its inherent powers. See Connecticut Pharmaceutical Assn., Inc. v. Milano, supra, 191 Conn. 563 (recognizing "trial court's power to fashion a remedy appropriate to the vindication of a prior consent judgment"); Pana v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982) (recognizing "the inherent power of the court to coerce compliance with its orders"). Although the trial court found the noncompliant party to be in contempt in both Connecticut Pharmaceutical Assn., Inc. and Papa, nothing in those cases suggests that the court's authority "to fashion a remedy appropriate to the vindication of a prior consent judgment" derived from the finding of contempt. Connecticut Pharmaceutical Assn., Inc. v. Milano, supra, 563. Rather, the language in Papa suggests the converse: that the contempt power arises from the court's inherent power to vindicate prior judgments. See Papa v. New Haven Federation of Teachers, supra, 737 ("[t]he penalties which may be imposed [in a contempt proceeding] . . . arise from the inherent power of the court to coerce compliance with its orders"). We note that, in this case, although the court determined that the defendant had not complied with its order to impose only reasonable and necessary conditions, it did not find the defendant in contempt because it concluded that the noncompliance was not wilful. It would defy common sense to conclude that, merely because a party's violation of a court order was not wilful, the trial court is deprived of its authority to enforce the order." Avalonbay Communities v. Plan Zoning Commission, 260 Conn. 232, 241-43, 796 A.2d 1164 (2002).
The remedy issued by the court in Broadnax (now on appeal), was the appointment of a Special Master as described in the original Memorandum of Decision to ensure that this prohibition on underfilling is enforced for promotions from within the ranks.
This is the best remedy to ensure that there is no underfilling for entry level firefighters as occurred with Neal and Wright. The court seeks to ensure that there are no future violations of court orders and law in the promotion and hiring practices throughout the Fire Department. The history recounted in the original Memorandum of Decision here is the legacy that these most recent underfills inherit. It is this court's duty to so ensure the compliance with the law. The expansion of the Special Master's authority to ensure that new hires are in compliance as to the law will help reach that goal. CT Page 8453-ma
In the Firebirds matter, the motion for contempt is denied.
In the Broadnax matter, while there is no finding of contempt, it is ordered that the Special Master shall supervise all new hires as well as promotions with the defendant Fire Department to ensure their compliance with statute, charter and court orders, and report to the court thereon.
The court is aware that the Broadnax decision is on appeal; these additional duties of the Special Master shall commence on the expiration of all appeals from that decision and, as may apply, upon the expiration of all appeals that may result from this order.
Lynda B. Munro Judge of the Superior Court
cc: Attorney William Clendenon, Special Master
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