Cilley v. Lamphere

¶1The plaintiff, Donald C. Cilley, Jr., a patrolman for the city of Norwich, brought this action against Richard Podurgiel, Norwich director of personnel, Harold Lamphere, Norwich fire chief, and Charles Whitty, Norwich city manager. This matter arose out of the defendant Podurgiel’s refusal to comply with the plaintiff’s request that he be transferred from the Norwich police department to the Norwich fire department. In the plaintiff’s complaint, he seeks a writ of mandamus ordering the defendants to obey and implement the decision of the Norwich personnel and pension board (hereinafter board), which ordered the transfer of the plaintiff to a position in the fire department of the city of Norwich. The trial court denied the writ of mandamus, holding that the board did not have jurisdiction to order the transfer. The plaintiff has appealed from the judgment of the trial court. We find no error.

¶2The trial court,1 in its memorandum of decision, made the following findings of fact and conclusions of law: On March 2,1981, and June 9,1981, the plaintiff requested a transfer to a position in the Norwich fire department. Both transfer requests were rejected. On April 17, *81982, the plaintiff complained to the board that his name had not been included on the transfer list. The board voted, on May 18,1982, to place the plaintiff on the transfer list to the fire department. Although the fire chief was willing to accept the plaintiff, on July 20, 1982, the police chief objected to the transfer because of the personnel needs of the police department. Even though the police chief objected, the board, on October 4, 1982, voted to transfer the plaintiff to the fire department. The defendant Podurgiel has refused to comply with the decision of the board, and the plaintiff brought this mandamus action, which was denied by the trial court.

¶3The plaintiff argues in his appeal that the court (1) erred in concluding that the board had neither the power nor the jurisdiction to resolve the plaintiffs appeal, and (2) abused its discretion in refusing to grant the plaintiffs request for mandamus.

¶4I

¶5The plaintiff first claims that the trial court erred in holding that the board did not have the power or jurisdiction to order the transfer of the plaintiff from the police department to the fire department. The plaintiff claims that the board’s power to order transfers derives from one of three sources: Merit System Rule VIII, § 3; Merit System Rule XIII, § 2; and chapter XIV, § 4, of the Norwich city charter.

¶6Transfers of employment are governed by the Norwich city charter and the Norwich merit system rules. Chapter XIV, § 5, of the Norwich charter provides: “[t]he rules adopted in accordance with the provisions of this chapter shall have the force and effect of law. Among other things they shall provide for . . . transfer of employees within the classification plan . . . .”2*9The rules adopted pursuant to chapter XIV, § 5, of the Norwich city charter are known as the merit system rules. Rule VIII, § 3, of the merit system rules, which relates specifically to transfers, provides that the director of personnel must “contact the heads of the departments in which employees requesting transfer are employed and ascertain whether or not any of these employees are available for temporary or permanent transfer according to the needs. ... If the employees so referred are rejected by the department head or if no employees are available for transfer, the Director of Personnel will proceed to fill the vacancy according to the regular certification procedure outlined in section 4 of this rule. . . .”3 (Emphasis added.)

¶7When language used in a statute is clear and unambiguous, its meaning is not subject to modification or *10construction. Seals v. Hickey, 186 Conn. 337, 346, 441 A.2d 604 (1982). The language used in Rule VIII, § 3, is clear and unambiguous. According to the rule, if a department head states that the needs of the department are such that the employee is not available for transfer, then the director of personnel must fill the vacancy according to the regular certification procedure. The rule does not give the director of personnel, or the board, the power to review and overrule the decision of the department head. The board has the authority to grant transfers excepting when the department head vetoes a transfer for reasons of department needs. Accordingly, the trial court did not err in holding that the board did not have the jurisdiction under Merit System Rule VIII, § 3, to overrule the chief of police and transfer the plaintiff to the fire department.

¶8The plaintiff argues nonetheless that pursuant to Merit System Rule XIII, § 2, the board has jurisdiction to decide the plaintiffs appeal regarding his requested transfer.4 An administrative body “ ‘ “must act strictly *11within [its] statutory authority, within constitutional limitations, and in a lawful manner.” ’ ” Lundy Electronics & Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 694, 458 A.2d 387 (1983); Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). Rule XIII, § 2, provides that the board shall have the power to review decisions of the director of personnel relating to complaints and grievances that an employee may have because of any action affecting his status or condition of employment. As previously stated, under Merit System Rule VIII, § 3, it is the department head, and not the director of personnel, who determines the needs of his department and thus whether an employee is available for transfer. Rule XIII, § 2, gives the board the power to review decisions of the director of personnel, but the rule does not give the board the power to review the decisions of department heads. Accordingly, the court did not err in holding that the board had neither the power nor jurisdiction to decide the plaintiffs appeal pursuant to Merit System Rule XIII, § 2.

¶9The plaintiff finally argues that pursuant to chapter XIV, § 4, of the Norwich city charter, the board has *12jurisdiction to decide the plaintiffs appeal regarding his transfer.5 “ ‘It is well established that a city's charter is the fountainhead of municipal powers. . .' ” Lombardi v. Bridgeport, 194 Conn. 601, 604, 483 A.2d 1092 (1984). “The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised.” West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983). Agents of a city, including commissions, have no source of authority beyond the charter. Perretta v. New Britain, 185 Conn. 88, 92, 440 A.2d 823 (1981). When a charter is construed, the rules of statutory construction generally apply. Arminio v. Butler, 183 Conn. 211, 217, 440 A.2d 757 (1981). Common sense must be used in construing a statute. Murach v. Planning & Zoning Commission, 196 Conn. 192, 196, 491 A.2d 1058 (1985).

¶10Chapter XIV, § 4, of the Norwich city charter provides that it shall be the duty of the board “[t]o hear appeals from any action pertaining to classification, reclassification and allocation of positions and from any disciplinary action . . . .” The plaintiff argues that a denial of his transfer is an action that pertains to allo*13cation of positions, and thus the board has the jurisdiction to hear his appeal. The trial court held that chapter XIV, § 4, of the Norwich city charter does not apply to transfers.

¶11This court has hereinbefore held pursuant to chapter XIV, § 5, of the Norwich city charter, and Merit System Rule VIII, § 3, and Rule XIII, § 2, that the board does not have the power or jurisdiction to review decisions of department heads as to the needs of the department and the availability of an employee for transfer. Chapter XIV, § 4, of the Norwich city charter does not give the board any broader powers to review decisions of department heads with respect to the availability of an employee for transfer. Accordingly, the trial court did not err in holding that chapter XIV, § 4, of the Norwich city charter does not give the board jurisdiction to decide the plaintiff’s appeal.

¶12II

¶13The plaintiff’s final claim of error is that the trial court abused its discretion in refusing to grant the plaintiff mandamus relief to effectuate the final decision of the board. The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate remedy at law. Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985). “The issuance of the writ rests in the sound discretion of the court.” West Hartford Taxpayers Assn., Inc. v. Streeter, supra, 740. In light of the trial court’s holdings that the board was bound by the Norwich city charter and the merit system rules, it concluded that to grant the plaintiff’s request under the circumstances of this case would be a misuse of mandamus. We find that the plaintiff has failed to establish that he has a clear legal right to be transferred, and therefore, the trial court did not err in denying the plaintiff’s request for mandamus.

¶14*14There is no error.

¶15In this opinion Peters, C. J., Healey and Callahan, Js., concurred.