HONULIK v. TOWN OF GREENWICH, No. X05-CV04-199882S (Sep. 4, 2007)

MICHAEL E. SHAY, JUDGE.

Background

The plaintiff in the above-entitled action is a thirty-plus-year veteran of the Greenwich Police Department ("Department") where he has risen though the ranks to his present position as a Police Lieutenant. The issue before the court arises out of the plaintiff's lawsuit filed March 27, 2004, in which he seeks relief after having been passed over for promotion to a then vacant position of Police Captain in the same department. Specifically, the plaintiff seeks injunctive relief and damages for breach of contract and promissory estoppel, as well as enforcement of the writs of mandamus and quo warranto. In addition, he alleges that he was deprived of due process and equal protection rights, and accordingly, he seeks further relief pursuant to 42 U.S.C. § 1983.

During the pendency of the present matter, another captain's position opened up and a notice of an assessment center test was posted on July 14, 2006. On August 18, 2006, several days before the Assessment Center test scheduled for August 23, 2006, the plaintiff filed a motion for a temporary restraining order, ex parte, with notice to opposing counsel. Consistent with Practice Book § 4-5 the court ordered the parties to appear on August 22, 2006, to be heard on the ex parte request. The court granted the relief sought and set the matter down for an evidentiary hearing commencing on September 18, 2006, for a determination as to whether the temporary injunction should continue until a judgment enters after a trial on the merits in the underlying case or that it be dissolved. The court advised the parties that it would make its determination based upon whether or not the plaintiff had suffered irreparable harm for which there is no adequate remedy at law and whether or not the plaintiff is likely to prevail at trial on the underlying issues. In other words, the court would apply the so-called "balancing of the equities" test. CT Page 15227

The injunction hearing, consisting of five days of testimony, commenced on September 18, 2006. This initial phase terminated on September 29, 2006. For reasons of relevance and consistency, throughout the course of all phases of the trial, the court limited the testimony and evidence to the uniformed services personnel employed by the Town of Greenwich. Shortly thereafter, and prior to the release of any judgment, the parties jointly requested the court not to issue a decision, so as to give them the opportunity to mediate the issues. The matter was then referred to the Hon. Robert Holzberg, however, he subsequently informed the court that his efforts were unsuccessful. In the interim, the Town of Greenwich modified the organizational chart for the Police Department and announced openings for the position of Deputy Chief. At that time, the parties agreed to keep the temporary injunction in place, and the Town agreed not to promote the defendant Pacewicz to either of the two openings.

The trial resumed with the second phase on May 22, 2007 and terminated on June 1, 2007. The plaintiff moved to preclude the testimony of Bruce Davey, the defendant's proposed expert. After argument on May 23, 2007, the court permitted the testimony, however limited to the issue of whether or not Chief James A. Walters ("Walters") had a rational basis for using the post-test interview, so as to mitigate the claims that he was biased against the plaintiff or that he showed favoritism toward the defendant, Pacewicz. In the interim, on May 29, 2007, at the close of the second phase of the plaintiff's case, the defendants moved pursuant to Practice Book § 15-8 for a dismissal of all counts due to the failure of the plaintiff to make out a prima facie case. After some discussion on the record, the motion was granted by agreement as to the defendant Pat J. Chila on all five counts, as to Michael A. Pacewicz on the First, Second, Fourth, and Fifth Counts, and as to the defendants James A. Walters and Alfred C. Cava on the First and Second Counts.

The damages phase commenced on June 8 and terminated on June 11, 2007, and the trial concluded with final argument on July 2, 2007. In total, the trial took place over the course of all or portions of seventeen days, including final argument. The parties were given until July 6, 2007, to file Revised Proposed Findings of Fact and Conclusions of Law.

Initial Phase (September 18, 22, and 27-29)

The first witness was the plaintiff, F. Gary Honulik ("Honulik"). He testified that he had joined the Greenwich Police Department in 1975, was promoted to sergeant in 1990, and achieved his present rank of lieutenant in 2000. Honulik told the court that, in response to an CT Page 15228 announcement of a promotional examination dated April 4, 2003, he applied for the then open position of Police Captain. (Exhibit #2.) Distinctive about the announcement was the phrase that the sole basis of the examination would be "100% — Assessment Center." (Exhibit #1.) He explained that the test, which included role playing, was conducted by independent assessors. In the past, he testified, with the exception of one other officer who had a disciplinary matter pending at the time, the person with the highest test score was always promoted to the vacant position. Following the test, Honulik was advised that his name would be placed on the "eligibility list," and later, on May 27, 2003, he was advised by letter (Exhibit #7) that he was to appear before the defendant Walters for an interview to be conducted on May 29. He appeared for the interview, and, according to him, three to five minutes prior to taking the interview, he was notified for the first time of his relative ranking on the assessment center examination, which, as it turned out, was number one. The interview consisted of about four questions. That evening, Walters called to say that he had awarded the position to another officer, one who had scored number two in rank order on the promotional list. He was told that the decision was based upon "your issue with the men," and that "Mike [Pacewicz] can multi-task better."

Both the witness testimony and documentary evidence offered by the Department of Human Resources for the Town of Greenwich has consistently and incorrectly misused the term "eligibility list" when, under the circumstances of this case, the correct terminology is "promotional list." Each is a form of "employment list," and each is defined separately in the Personnel and Policy Manual. The former (referred to as an "eligible list" in the Personnel Policy Manual and "eligibility list" in the Greenwich Classification and Pay Plan) clearly refers to new hires to the Department (e.g. patrol officers), while the latter refers to candidates who are already in service. There is an additional employment list called a "re-employment list," which was not the subject of any testimony by the parties herein. While the court could view this mischaracterization as merely a word processing error due to the careless use of templates by the Greenwich Human Resources Department in correspondence with candidates, nevertheless, the words carry with them subtle if not significant connotations with regard to the applicability of the rules. Not only is the term "promotional list" more accurate, but it is also more descriptive of the actual process that is the subject of this lawsuit, which is an intra-departmental promotion and is inextricably entwined with the rules and procedures for promotions, both formal and informal. The court has tried to be consistent in its use of the term "promotional list." On the other hand, the defendant Town of Greenwich has, throughout the trial, consistently merged the usage, in an effort to buttress its argument that it applies the "Rule of the List" (i.e. to promote anyone from the list without regard to rank order) in the promotion process within the Greenwich Police Department, when the clear weight of the evidence has demonstrated that this rule has only been applied to "new hires" certified to an eligibility list, who, as such, are outside of the Department and the union, as well as to "open competitions" for high level positions, such as Chief of Police, with candidates coming from both within and without the department.

Honulik attributed the decision to favoritism toward Pacewicz and a bias against him due to at least two less than pleasant previous interactions with Walters. The first incident involved a low service rating which Walters gave him. When asked why, Walters replied, "That's the way it is." After his refusal to change the rating, Honulik filed a grievance, and the rating was thrown out. The second, more recent incident involved Walters' refusal to allow Honulik to swap a shift with another officer so that he could take his wife to an important medical appointment. Then Chief Robbins held a meeting with Honulik and Walters which the plaintiff described as "heated."

As to the promotion, the police union, known as the Silver Shield Association ("Silver Shield") filed a grievance on behalf of Honulik as well as its membership. However, ultimately, since the position of Police Captain was outside of the bargaining unit, the issue was deemed not arbitrable by the arbitration panel, as it did not involve "wages, hours, or conditions of employment (mandatory subjects of bargaining)." While that panel acknowledged the union's complaint, it held that arbitration was not the appropriate forum to have it reviewed. (Exhibit #79.) Honulik has not applied for the latest opening for a captain's rank, and he feels that he will be "left out in the cold" if the injunction is dissolved and the test is allowed to go forward. He also told the court that any hope of further promotion up the ranks would be CT Page 15229 blocked, due to the requirement that a candidate achieve a certain rank before moving to the next step. The court found him to be sincere and forthcoming.

In January 2007, during the course of these proceedings, and after the testimony of Honulik during the initial phase, the position of Deputy Chief was placed in the unclassified category, and the qualifications for that position were considerably altered. In brief, the requirement of a bachelor's degree was eliminated, and it was opened to all applicants who had supervisory experience (e.g. sergeant, captain, etc.) and it was not limited to current holders of the rank of Police Captain. (Exhibit #61.) The evidence clearly supports a finding CT Page 15269 that the changes were made by the defendants in order to implement its "succession plan" which included, among other things, the intention to promote the defendant Pacewicz to the rank of Deputy Chief further blocking future promotions for Honulik, in the eventuality that the court would ultimately find for the plaintiff in the underlying lawsuit.

The court next heard from Peter Robbins ("Robbins"), the former Chief of Police of the Town of Greenwich from 1997 through 2002. Currently, he serves as the Director of Security and Emergency Management at Greenwich Hospital. Robbins testified emphatically that in his experience with the Greenwich Police Department ("Department") from 1970 onward, the individual with the highest score on the promotional list was always promoted to the position. He went on to testify that in July 1999 the Department was looking to fill two captain's slots. The announcement for the promotional exam stated that it would be "100% — Assessment Center." He told the court that it was his decision to seek an assessment center exam conducted by neutral, outside persons, which was more expensive, as opposed to the old written and oral examination administered by the Department itself. Following the assessment center, the two top candidates were asked for an interview, the sole purpose of which was to ask them if they wanted the job since the salary could well result in a reduction in pay overall due to loss of overtime. At first the two accepted the position, then they declined. Robbins testified that he then went back to the First Selectman and negotiated an increase in starting pay for the captain's slot, and the two top candidates subsequently accepted and were appointed. Later, Robbins appointed, without an exam, two Deputy Chiefs, based upon "100% training and experience." As was customary, the top two candidates were appointed, who, as it happened, were the only ones on the list. Of some significance, his testimony supported Honulik's testimony regarding the contentious meeting with him and then Deputy Chief Walters regarding the swapping of a shift. Finally, he considered the Town of Greenwich as the hiring authority, since it had the ultimate authority to approve promotions. In response to a question by the court, he testified that he had made no temporary appointments, and he confirmed that lateral appointments (e.g., captain to captain) can be made without an exam. The court found him to be a very credible witness.

Next, the court heard from Alfred Cava ("Cava"), currently Director of Labor Relations, but then, Director of Human Resources for the Town of Greenwich. His testimony was extensive and wide ranging. He referred frequently to the Town Charter (Exhibit #26), the Greenwich Classification and Pay Plan (Exhibit #24), the Personnel Policy Manual (Exhibits #27 and ##29 through 32), and the Collective Bargaining Agreement (Exhibit #35) with the Silver Shield. In general, he testified that candidates for positions in the Department are listed on the promotional list in order of their scores (highest to lowest), the CT Page 15230 ability of the Town to "underfill" positions prior to the expiration of the eligibility list, and the ability to promote to a position on a temporary basis in the event of an emergency. Cava confirmed that, with the exception of a Sergeant Ryan, who had unresolved disciplinary issues at the time, Honulik was the only officer not promoted on the basis of rank order on the promotional list. However, he maintained that it is the Town's position that there is no written rule that the candidate with the highest score must be promoted, in other words, it is not, in his opinion, a binding "past practice." He told the court that Greenwich has what is termed a "merit system," but he drew a distinction between a represented officer, in which case the collective bargaining agreement comes into play, and an unrepresentative one (i.e., non union) where the so-called "Rule of the List" (i.e., anyone on the particular employment list can be selected as an initial hire or for promotion) prevails.

The term refers to the practice of promoting candidates prior to the actual opening of the position. It is also referred to as "stockpiling" or "promoting subject to assignment." New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 434 (1991).

Another common method of selection is the "Rule of Three," whereby the selection is made from among the highest three scoring candidates. This method is not utilized by the Town of Greenwich.

A considerable portion of this witnesses's testimony was devoted to a comparison of the charter and personnel rules of the Town with the actual promotion practice. The court limited the evidence to the uniformed services (i.e., police and fire) since that had the most relevance. Cava testified that following the April 2003 assessment center test, Lee-Cogswell, the independent assessors introduced for the first time the concept of "banding," whereby candidates are grouped within bands I through VI, each band covering a range of numerical scores. According to the witness, the practice of banding is common, is used for "more senior positions," and shows the relative capacity of the candidates. Unsaid was the fact that by adopting this method, at least in theory, the hiring authority is given more discretion in selecting the candidate. The results of the 2003 exam listed both the numerical rank of both Honulik and Pacewicz, however, it listed both as being within the same band, despite the fact that the former scored at the high end of the band. In addition, the court viewed documentation regarding specific promotions to Police Captain, Deputy Chief and Chief of Police since 1999, as well as promotional lists for the various promotions made within the Department, most indicating the person promoted and the date. (Exhibit #33.) He told the court that he had spoken with Chief Walters regarding the conduct of a post-assessment center interview, and in fact, Bernadette Welch ("Welch"), the Deputy Director of the Department of Human Resources, had written the chief a memo dated May 23, 2003, with certain recommendations. (Exhibit C.) However, when asked if the Chief requested any assistance in framing the questions to the candidates, he answered in the negative. The court found interesting Welch's suggestion that all candidates be interviewed, which was preceded by the statement that, ". . . normally we would recommend interviewing only those candidates in Bands III and IV . . ." CT Page 15231 This the court interpreted to mean that an interview post-test was not always recommended (i.e., for Bands I and II).

See Exhibit C: Band I — Exceptional (91%±); Band II — Highly Qualified (87%-90%); Band III — Qualified (83%-86%); Band IV — Moderately Qualified (79%-82%); Band V — Barely Adequate (74%-78%); and Band VI — Very Marginal (70%-73%).

Even were the court to find that the post-examination interview conducted by Chief Walters and Deputy Chief Chila to be, under the circumstances, a proper part of the promotion process, which for reasons more clearly articulated herein it does not, Cava and Walters failed to follow Section 402.3 of the Personal Police Manual (Exhibit #30) which calls for a review in advance by "job experts" of all questions to used in an interview, so as to avoid, inter alia, bias, and to determine their appropriateness and relation to the particular job. This, however, is moot, since the evidence clearly supports a finding that the Town incurred the added expense, and elected to go to an outside source to conduct the testing, which included both oral and written components.

The witness testified at length concerning the post-test interview conducted by Walters. In general, Cava told the court that there was nothing in the Town charter or rules that prohibited such an interview. He conceded, conversely, that there was nothing in the Town charter or rules that authorized an interview. However, he testified that such an interview in conjunction with the test results would give the hiring authority a better picture. Specific instances of post-test interviews were brought to the attention of the court regarding the hiring of two captains, two deputy chiefs and the current chief of police. In each of these examples, it was clear that the facts and circumstances were inapposite to the present case. For instance, after the test for captain in 1999, the top two scoring candidates were asked to come for an interview, at which time the only question posed to them was whether or not they would accept the position since it was likely to result in a pay cut. Likewise in 1999, with regard to the Deputy Chief positions, where the interview was a mere formality since there were only two candidates available to fill the two positions. The position had been advertised as "100% — Training and Experience Rating," and, in fact, the candidates were placed on the promotional list in rank order based upon a score computed by factoring in their experience and training. Finally, in 2003 the position of chief was filled as a result of an "open competition" in which candidates from inside and outside of the Department were eligible for consideration. The court found Cava to be a knowledgeable witness.

Cava was followed by Mary Jo Iannuccilli, the current Director of Human Resources for the Town of Greenwich. At the time of the April 2006 Assessment Center, she was the Assistant Director in charge of policies and procedures, as well as for job searches and testing. It was under her direction that the announcement of the promotional exam for the position of captain was prepared in July 2006. (Exhibit #13.) She was asked to compare this announcement with that of April 2003, which she described as a "clarification" and not a change. Of more significance, however, the witness corroborated the testimony of all the previous witnesses that, with the exception of Officer Ryan and Lt. Honulik, the candidate with the highest score was always selected for the promotion.

The final witness was James A. Walters, then Chief of Police of the Town of Greenwich. He testified that he had been a member of the Department since 1981. Walters told the court that his goal was to select the "best person for the Department." It appears from his testimony that the witness had intended all along to conduct CT Page 15232 post-Assessment Center interviews, having consulted with Human Resources on at least two occasions confirming his ability to do so. This fact, however, was not communicated to the candidates until after the Assessment Center examination and shortly before the interviews themselves. Also, it is significant to note that Honulik first found out about his actual rank based upon his test score just minutes prior to the interview. The post-Assessment Center interviews lasted approximately fifteen to twenty minutes, and comprised about four questions. Walters confirmed that he did not seek the advice of the Human Resources Department with regard to the type and content of the questions that he posed to the two candidates, Honulik and Pacewicz, but rather, he relied upon his experience. No record of the interviews was maintained. He further testified that he knew that his insistence upon a post-Assessment Center interview "would be an issue" since it was a " break with past practices," as he could recall no prior post-test interview taking place. Moreover, he also admitted that the April 2003 announcement did not refer to an interview post-Assessment Center examination. In fact, the minutes of a staff meeting held on May 14, 2003, which took place more than two weeks prior to the interviews, indicate that the Silver Shield representatives present at the meeting questioned the need for such an interview, since the posting was "100% — Assessment Center." (Exhibit #5.) It is significant to note that the evidence demonstrates that, after the Assessment Center examination results were received, Human Resources sent a memo to Walters (Exhibit C) dated May 23, 2003, in which a suggestion was made to interview all candidates, but Walters chose to interview only Honulik and Pacewicz.

During the pendency of the case, Walters has retired from the Department, and has been succeeded by Deputy Chief Ridberg.

Walters was asked about the incidents described by Honulik as evidence of his bias or unfavorable disposition toward Honulik. In the first instance, involving the negative ratings given to Honulik and two other officers for which a grievance was filed, the court believed Walters testimony when he said that he did not ask for the assignment and that it was out of his division. However, that is as far as it goes. He then told the court that he was satisfied that the record was corrected in favor of Honulik, that he had "no hard feelings," and that he "agreed with the grievance." Given Honulik's contemporaneous account of the incident, Walters' belated expression of support simply does not ring true.

Likewise, as to the incident involving the shift swap with a fellow officer, Walter's testimony is simply not credible. To say that he would have approved the swap "if he had known" about Honulik's wife's condition is disingenuous at best. As a superior officer, his lack of empathy for fellow officer, a subordinate, speaks volumes, and his lack CT Page 15233 of natural curiosity regarding Honulik's situation, in that he never asked about the circumstances of the swap, strains credulity. Couple this with the fact that all parties concerned indicated that the meeting with then Chief Robbins was "heated," and the fact that Honulik questioned Walters' honesty, both lend credence to the assertion that the latter harbored some ill will toward the former.

The witness was asked about the Police Captain's position sought by Honulik in 2003, and his ultimate choice to select Pacewicz. His reasons for the selection included his opinion that Honulik was too close to the men, however, when pressed, he could point to no instance where Honulik played favorites. Asked about the relative qualifications of Honulik and Pacewicz, he ignored the fact that Honulik had a bachelor's degree and more seniority than his closest rival. The court also found significant, the fact that under a recent reorganization of the Department, the job description attached to the Notice of Promotional Examination for specific the Police Captain's position which is the subject of this lawsuit, dated April 4, 2003 (Exhibit #1), called for the appointment of a person whose duties could "include any or all" of three functions, one of which was for "Professional Standards and Strategic Planning," and that the Assessment Center report by Lee Cogswell Associates ("Report") (Exhibit #6), specifically recommended Honulik as the best qualified of all the candidates with regard to that particular skill based upon the testing. (See page 5 of Report.) During his testimony, Walters conceded that in June of 2003, Pacewicz was promoted over Honulik to the position of the Police Captain responsible for Professional Standards and Strategic Planning, since the other two Police Captains already handled Criminal Investigations and the Uniformed Services respectively. (Walters, TR 9-28-03, pp. 7-13) Walters also admitted that, with the exception of Honulik and Ryan, the number one person on the promotional list, including him, had always been selected to fill the vacant position in the Department.

Throughout the trial, the defendants have argued, among other things, that the difference between scores of Honulik and Pacewicz was so small, so as to be statistically insignificant, thereby placing them in a virtual tie in terms of the examination score. Section 402.1 of the Personal Policy Manual (Exhibit #29) states that in the event that " identical grades are received, such names shall be arranged in order of relative rating given in the most heavily weighed part of the examination." Thus, the importance of rank order following an CT Page 15270 examination is preserved. In any event, the point is moot since the scores were not "identical" and the Director of Human Resources ranked Honulik number one on the Promotional List (Exhibit #25), based upon an examination in which Lee Cogswell Associates, Inc. referred to Honulik as the "top candidate." (Exhibit T, p. 5).

Like the chorus in a Greek drama, the recurring theme throughout the testimony and evidence was the mandatory listing of candidates for all positions, whether for an initial hiring or for a promotion, on an employment list (either an eligibility or promotional list respectively) in rank order based upon their exam score, from highest to lowest (as opposed to, for instance, alphabetical order), and the ultimate promotion of that person with the highest rank. This the court treated as significant, evidence of the primacy of rank order in the merit system of the Town of Greenwich. Every single witness, for both plaintiff and defendant, testified that, to their knowledge, with the exception of one officer who had disciplinary problems, every promotion to sergeant, lieutenant, and captain within the Greenwich Police CT Page 15234 Department had been made to the top ranked candidate certified to the promotion list, except Honulik.

Second Phase (May 22-25, 29-31, and June 1)

On May 22, 2007, the plaintiff was recalled as a witness by his counsel and testified, in part, about many of the same incidents as before. He did add that as to the shift swapping incident, the department had in place a five-day advance notice rule, however, he indicated that it had never been strictly enforced. He reiterated that when the announcement for the Police Captain's position was made, he interpreted the words "100% Assessment Center" to mean that the candidate with the highest score would get the job. When he spoke with Pacewicz prior to the exam, he was told that the latter was told by Deputy Chief Chila that he (Pacewicz) was "his man for the position." Pacewicz denied that the conversation took place. Honulik testified that he first found out about the post-Assessment Center interview on May 14, 2003, following Walter's announcement at the staff meeting that day, when fellow officers related that fact to him. He also testified that he found out his rank and score just prior to his post-test interview. When Walters told him in a telephone conversation that he was not selected, he said that "it took the wind out of my sails." He later described his constant feelings of "humiliation" and "embarrassment" at being the first officer who was ever passed over in this manner. He told the court that he had been born and raised in Greenwich, and that he was "hurt" and felt "let down" and somewhat "lesser of a person." He described the Greenwich Police Department as a "second family" and "brotherhood and sisterhood," and that he had worked hard and set goals for himself in particular, his aspirations for promotion, which are now stymied. Finally, he said that he had been damaged financially in lost wages and benefits, in particular the pension and 401k.

Since the filing of the lawsuit, he was transferred from his duties in the Patrol Division, to a job as a staff officer in the Operations Division. He believes that it was in retaliation for his memo regarding the proposed "Sector Plan," comments which had been solicited by then Captain Ridberg. The transfer, made by Walters was effected shortly after he turned in the memo. Shortly thereafter, he was transferred back to Patrol when the officer in that slot had some disciplinary difficulties.

Honulik then went on to describe an incident that took place within the past year, which can only be characterized as petty. In brief, the Town of Greenwich is in the process of building a new police station, and made no arrangements for on-site parking for the patrol officers on CT Page 15235 duty during their shift. This precipitated a somewhat sophomoric retaliation in which bumper stickers printed with the word "FLASH" began to appear throughout town, as well as on the marquee of the local theater. While the police union maintains that the word is an acronym for "Friends [of] Law [enforcement] Against Selectman Harassment," it is clear that it was, in fact, a thinly-disguised double entendre directed toward the First Selectman, James Lash. It was not the first time that the union and Lash had clashed, and in the midst of this acrimony, Walters directed Chila to take "the shift commander" (who just "happened" to be Honulik) and to have the latter issue a ticket to any improperly parked police officers. Honulik did so, ticketing himself as well. He believes that Walters was aware of the fact that he was the shift commander that day, and he noted that as he carried out the order he saw "three dozen open spaces."

Honulik testified briefly regarding the fact that as a Captain he would have been entitled to the use of a car, usually a Ford Crown Victoria, which would be maintained by the department, including gas, maintenance, and insurance. He estimated that this benefit was worth approximately $6,000.00 per year based upon his own weekly expenses. Finally, Honulik testified that while he was on vacation in Florida in this past December and January that he received a telephone call from a colleague who stated that Walters was going to promote Ridberg and Pacewicz to Deputy Chief. Honulik referred to the recent restructuring of the department (i.e., return to two Deputy Chiefs and two Captains), and a change in the basic requirements for Deputy Chief primarily the elimination of the requirement of a college degree. He told the court that he considered Walters' actions in this regard to be a "slap in the [the face of the] judicial process."

A number of officers, past and present testified on behalf of Honulik. The first such officer was Sergeant Rich, now retired. He was present at the staff meeting on May 14, 2003, when Walters made the announcement about the post-test interview. He said that there were some questions raised, and that the defendant Pacewicz, who was also present at the meeting, said that the "Shield should mind its own business." He had seen the exam announcement, and it was his understanding that the words "100% Assessment Center" meant that there would be no interview. After the staff meeting, Rich went over to Honulik's desk and told him that "the fix was in" for Pacewicz. The court also heard from Lieutenant Kordick. He had taken the assessment test and was also present at the staff meeting on May 14. At the time of the meeting he had not received his results, and testified that until Walters made the announcement about the oral interview he was not aware of it, nor the fact that not all candidates would be interviewed. He also testified that Pacewicz CT Page 15236 told the meeting that "it was inappropriate for the union to get involved in the testing process." Kordick testified quite to the point that it was "his understanding and expectation that [the Town] never departed from the rank [order] promotions" and that the forthcoming "interview was a departure." He told the court that the "interview" was a topic of conversation "after the meeting." In January 2007, as Vice President of the Silver Shield, he was one of two members called to Walter's office for a meeting. There, he was informed that, "after discussions with the First Selectman," the department model was going to revert to a two-Captain, two-Deputy Chief model, and that Captains Ridberg and Pacewicz would be immediately promoted to the Deputy Chief slots, while Deputy Chief Chila would be given another assignment. On cross examination, he testified that while Captains were taken out of the bargaining unit in 1999, and while the Town threatened to promote whomever they wanted, the fact remains that the Collective Bargaining Agreement requires that the rank be filled by a union member. On redirect, he testified that "most members of the Police Department felt that Pacewicz had preference" and that because of the announced interview, there was a "suspicion that Pacewicz was not number one" on the test.

The court then heard from Sergeant Michael O'Connor who testified that he had been involved in police union activities for seventeen of his twenty-three years on the force. He told the court that he "had no recollection of any change in the [use of] rank order for the appointment of Captains when [that position] went out of the bargaining unit in 1999." On cross examination, he said that "the bargaining rules should apply to Captain," which position "must come from the bargaining unit." He referred to the "past practice [to] hire Captains and Deputy Chiefs in rank order," but drew a distinction between those positions and "new hires who are not necessarily selected in rank order." The court then heard from Sergeant James Bonney who has been on the force since 1990, and who is currently serving his third term as President of the Silver Shield Association. Bonney was involved with the process of shift swaps and the maintenance of the file folder recording them. He told the court that he did not recall a single instance of the denial of a request where a proposed swap was made between officers of equal rank, by enforcing the five-day rule, except as to Honulik. Bonney said that he had "never seen number one on the promotion list passed over." Moreover, he told the court that "union rules apply until a Captain is appointed." He then testified about the meeting with Walters on Tuesday, January 2, 2007, at which Lieutenant Kordick was also present, both as representatives of the Silver Shield. He recounted how Walters discussed forthcoming changes in the department and showed them the organizational chart, which the witness referred to as a "spreadsheet." Walters told CT Page 15237 them that he was "hoping to promote Ridberg and Pacewicz on Thursday or Friday." When asked about Chila, who was already occupying one of the two Deputy Chief slots, he replied that he would be given "Accreditation." The witness testified regarding the ongoing union disputes with Walters and the First Selectman. He frankly admitted that he and Lt. Kordick had come up with the idea of the bumper stickers, and that he had organized pickets against James Lash. He felt that whole off-site parking issue was a retaliatory act by First Selectman Lash. The court found him to be a very credible witness.

Thomas Keegan, a retired lieutenant with twenty-six years experience on the force, told the court that he had no recollection of the number one-ranked candidate not being promoted. He was one of the group to take the assessment center test for Captain in April 2003, and shortly after the test, and before the scores were known, he had a meeting with Captain D'Angelo, the head of the Detective Division. There he was told that there would be a "staff reorganization," that the department was going to "move people around," and would he join the Detective Division in what was currently Pacewicz's position. He asked, "what if I'm promoted to Captain?" D'Angelo then qualified his offer to be effective in the event that Keegan was not promoted. Ultimately he was not promoted, nor was he assigned to the Detective Division after Pacewicz left. He told the court that he continues to work with the Silver Shield. The court found this testimony to be significant.

Finally, the court heard from Lieutenant Pamela Gustovich, a nearly twenty-year veteran of the Greenwich Police Department, who is currently serving as the Training Lieutenant. She also had taken the Assessment Center test in April 2003 and was present at the staff meeting on May 14, 2003. She also recounted that Walters announced that "the top two candidates would go to an interview." This, she said was followed by "some discussions," and that Pacewicz became "vocal" and "appeared upset by the discussions." She quoted him as saying that it "was not a union issue," and that "Captain was not in the union." She told the court that since the test was "100% Assessment Center," she found it "odd" that the announcement of an interview would "come up at that time." Moreover, she said she was "a little suspicious" and thought that it was time to have had the results of the test, and that she "expected number one to be promoted." Lt. Gustovich was one of the officers to speak with Honulik following the staff meeting. The court found her to be very credible.

The court heard from James A. Lash, the First Selectman of the Town of Greenwich since December 1, 2003, and the sole Police Commissioner. On direct examination, he testified that late last year when he thought about reorganizing the Police Department, he was aware of the pending CT Page 15238 lawsuit by Honulik. In fact, he admitted that the failure of the Department to promote the plaintiff was one of the complaints in the vote of no confidence against him taken by the Silver Shield. He told the court that when he became First Selectman, it was his desire to declassify both the Chief and Deputy Chief positions. In connection with that effort, there would be a new job description as well as qualifications. For instance, he wanted to remove the requirement of a bachelor's degree for the Deputy Chief position. Lash told the court that he did not want to "unnecessarily constrain" the hiring authority and that he knew that one of the candidates for that position (Pacewicz) did not have a bachelor's degree. Lash also wanted to create a succession plan since he knew that Walters would be retiring in late 2007 and he thought that Deputy Chief Chila would do likewise about the same time. He met with Maureen Kast, the Director of Human Resources, who strongly recommended that he brief the Silver Shield regarding the proposed changes. In connection with the reorganization proposal, he met with Walters once in December 2006 and another time in January 2007. More important, he met with Captains Ridberg and Pacewicz during the first week in January. While he told the court that he did not intend to appoint the Captains to the Deputy Chief positions that week, this testimony was undercut by his admission that he did ask them: "Why don't I just promote you?" To their credit, each answered that they would be opposed to that method. The matter then went to the Board of Selectmen and the job announcement was posted in due course. Lash said that he "did not want to pick in rank order," and that "no choice was made until after the interviews." Ultimately, Ridberg was promoted, and as a result of an agreement between the parties, no promotion of Pacewicz to the other vacancy was made pending the outcome of the present litigation.

Deputy Chief Pasquale Chila was asked about several subjects. First, he told the court that he does not normally deny same-rank swaps, but because Honulik had called Walters first, he could not help him at that time. Next, he testified that, other than Honulik and Ryan (who had disciplinary problems), the number one ranked was always promoted. He then told the court that following the Assessment Center Test in April 2003, Chief Walters asked him to be part of an oral panel. He said that he was unsure of how many candidates would be interviewed. He also said that he did not discuss the interviews beforehand, had no input from Human Resources, and did not see the test results until just before the interview when, in his words, he "glanced" at them. He did say that he thought that Pacewicz did better at the interview, in that he seemed, "better prepared to assume responsibilities now." He could not remember whether or not he asked any questions, but he said that Walters made the decision. At one point he was asked about the ticketing incident, and said that Walters had directed him to a "specific spot," and that CT Page 15239 Honulik gave himself a parking ticket. Finally, he told the court that he was looking to retire if he found the right opportunity, but that in the interim, he was upset when he heard that Walters was going to assign him to Accreditation, a staff position which took him out of the chain of command.

Miles Mobius, the Lease Manager at Stamford Motors, gave testimony as to the cost of a lease for a basic Ford Crown Victoria. He told the court that the average lease was 12,000 miles per year, and he offered some evidence regarding the cost.

The plaintiff called the defendant Michael Pacewicz to the stand for the first time in the trial. He has been with the Greenwich Police Department since 1983, and is currently serving as Captain in the Patrol Division. The witness testified that throughout his career, with "some gaps," he has served in Walter's chain of command. As to the post-test interview in 2003, he told the court that he first heard about it "officially" at the staff meeting, but that there had been prior "scuttlebutt." He said that his service as a Captain for the past four years would be helpful in command positions. He was asked about some of the differences in pay and benefits between a Lieutenant and a Captain or a Deputy Chief, including the use of a Crown Victoria, with gas and other expenses paid by the Town of Greenwich. In addition to the increased base salary, and a higher match for the 401k, he could do outside jobs in the private sector ("red book"), but not those within the department ("blue payroll"). He also said that he was not eligible for overtime. Finally, he was asked about the recent changes in the command structure, in particular, the proposal to return to the model of two Deputy Chiefs and two Captains. Evidence disclosed that Walters had gone so far as to draft an organizational chart with Pacewicz occupying one of the new Deputy Chief positions. While he told the court on cross examination that he was not promised one of the Deputy Chief positions, on direct examination he described his meeting with Lash and Ridberg in January 2007. There, it is apparent that he was told by Lash that he and Ridberg were being considered, because he told the court that he responded to Lash by saying that it would "not be the best way to go," because he was concerned with the effect upon the Department.

Michele Honulik testified with regard to her illnesses and her husband's conversation with Walters following his denial of Honulik's request to swap with a fellow officer. First, she told the court that she had been diagnosed with leukemia during the late 1980s which became acute in the 1990s. Every six months she returned for tests, which quite understandably, made her nervous. She was in the room when her husband spoke with Walters and heard his side of the conversation. CT Page 15240 She confirmed that he had spoken with Deputy Chief Chila and then Walters. She heard him tell Walters that he had to take his wife to the doctor, as well as the fact that Walters insisted that he take a family leave day. As for the denial of her husband's promotion, she told the court that he "wakes up with it every morning," and the "feeling stays with him every day."

Pursuant to the established practice within the Greenwich Police Department, the actual request for a swap was initiated by Lieutenant Wachowski, however, since the underlying issue was Honulik's desire to accompany his wife for a medical appointment, I have referred to the request for the swap as his.

Alfred Cava returned to the stand for the first time since the end of the first phase of the trial. He confirmed that police officers who are covered by the collective bargaining agreement are promoted in rank order, and that the union position is that this is a past practice. In addition, he reiterated that the position of Captain, while considered a Managerial Confidential ("MC") job, requires that the person be promoted from the ranks of the union. Cava discussed the ruling of the arbitration panel (Exhibit #79) denying the union grievance following the failure to promote Honulik. However, upon a review of that decision, it is clear that the panel did not reach the merits of plaintiff's underlying claim, but rather held that the issue was "not a mandatory subject of bargaining," and ruled simply that it was not arbitrable. Cava insisted that in the uniform services, past practices are not controlling, rather the Greenwich Pay Plan is. He also said that Greenwich can change a past practice. As an aside, he did testify that when a person is promoted to Police Captain, he generally keeps his union pension, since it is better. It is significant to note that on redirect examination, Cava admitted that the failure to promote from the union to the position of Police Captain would be subject to grievance and arbitration. This would appear to be contrary to the Town's position in the arbitration. As a further indication that this is the case, he admitted that when the captains went out of the bargaining unit in 1999, the union negotiated a clause in the Collective Bargaining Agreement requiring that the Police Captain's position be filled by a union member.

James Walters was the final witness called upon by the plaintiff to testify. His testimony centered around his decision to add a personal interview to what had been noticed as a process called "100% Assessment Center." While he admitted that "never to his knowledge (except for Sgt. Ryan)" was the number-one-ranked-officer not promoted, until Honulik. His rationale was that, "he wanted to select the person that he thought was best for the position." He testified at some length regarding the process of making changes to the organizational chart of the Police Department which took place beginning in December 2006 and January 2007. The evidence is clear that as early as December 19, 2006, he had already selected Ridberg and Pacewicz to fill the two proposed Deputy Chief positions, even though Deputy Chief Chila still held that rank. (Exhibit CT Page 15241 #68.) He told the court that First Selectman Lash "wanted to go ahead quickly" with the plan, so he met with the union reps as well as Deputy Chief Chila, and Ridberg and Pacewicz. The haste with which this process progressed is apparent from the memos, notices and e-mails during the last two weeks of December 2006 and the first week of January 2007. (Exhibits #52, #53, #54, #57, #58, #60, #61, and #62.)

It is interesting to note, that at this time the qualifications for Deputy Chief still called for a captain, and that the only two who met that requirement were Ridberg and Pacewicz. In brief Lash wanted to return to the old model of two Deputy Chiefs and two Captains. Walters also testified that, while he did not remember Honulik's memo to Ridberg regarding the new sector plan, he did describe the officer's feelings as "not as enthusiastic," and that he did not take the "initiative" regarding it. Walters transferred Honulik to the Operations Division in June of 2004, and admitted that he "reluctantly" transferred him back to the Patrol Division when the officer filling that position had some problems.

Following the testimony of Walters, the plaintiff rested as to his portion of the case, subject to the right of rebuttal, with the understanding that he would be allowed to offer evidence of damages in a later phase.

The defendants began the direct presentation of their case with further testimony by Walters. He testified briefly concerning several matters. First, he confirmed his prior testimony that he initially decided to conduct a post-test interview prior to the assessment center. However, for the first time, he told the court that he made the announcement about the interview at the staff meeting in May 2003 in order to "quell the rumor mill." This simply does not square with the accounts of others in the department, including Lt. Gustovich, who was at the staff meeting and who had taken the assessment center exam, and who expressed genuine surprise when the announcement was made. He admitted on cross examination that he had been "thinking prior [that] he might go out of rank order," and that he knew that would be "controversial." Despite that fact, he told the court that he had made no public announcement of his intentions.

He then testified about the parking ticket incident. Walters said that at first he was going to send Deputy Chief Chila alone, however, he changed his and told Chila to take the shift commander, who he claimed not to have known. This just doesn't ring true. Even in a relatively small department, he might not be expected to know the names of every patrol officer on a given shift, but as the person in ultimate charge, CT Page 15242 it would seem basic that he would know the name of the sole shift commander that day. Honulik testified that they were directed to go to a very specific location, and the logical inference is that the targets were particular patrol officer's cars. Walters denied that he knew whose cars were to be ticketed.

Finally, he testified briefly regarding the proposed Department reorganization begun in late 2006 and early 2007 at the insistence of First Selectman Lash. Walters told the court that for the two Deputy Chief positions, he "wanted to promote from within." Evidence was introduced detailing the back and forth between Lash, Walters, and Human Resources, as well as draft organizational charts which support a finding that Walters intended to promote Captains Ridberg and Pacewicz. In support of this is the fact on Tuesday, January 2, 2007, according to the testimony of Sgt. James Bonney, Walters met with him and Lt. Kordick as representatives of the Silver Shield, and he told them that he, "was hoping to promote Ridberg and Pacewicz on Thursday or Friday." (Bonney, TR 5-24-07, pp. 12-14; Kordick, TR 5-23-07, pp. 64-65.) At the time of this meeting, the main qualification for the Deputy Chief slot (i.e., that the person must be a Captain) had not yet been changed, and those two were the only persons holding that rank. There was evidence that prior promotions to the position were based upon "100% — Training and Experience Rating," that is, without an actual examination. In fact, in July 1999, both Chila and Walters were promoted to Deputy Chief in this manner. (Exhibits G and H.) Again, to their credit, both officers balked at the proposed procedure, and a different approach was taken.

The defendants offered the expert testimony of Bruce Davey regarding testing and interviews in connection with merit system hiring and promotions. Following argument, the court allowed the witness to testify and offer an opinion for the limited purpose of demonstrating that Walters had a rational basis for using a post-assessment center interview and that there was no bias or favoritism exhibited by him in the process of the promotion process in 2003. The witness was well-qualified, but tended to give long answers to simple questions and to "volunteer" information. On direct examination, Davey testified that the assessment center test should not be the only criteria used for promotion, and based upon his experience, he recommends that such a test be followed by an interview. He drew a distinction between the oral component of an assessment center exam and a post-test interview. While he concluded that Walters had a rational basis for conducting an interview, he told the court that every candidate should know the complete procedure before the exam. In his words, "let everyone know that being first on the list is not a free pass; only part of the process." On cross examination, he conceded that rank order is often an CT Page 15243 important factor, but that judgment, which is subjective, also plays a role. He repeated his testimony that the better process is where every candidate knows the procedure from the beginning, although he said that even in the absence of such knowledge, the interview should take place. He testified that in order to be valid, where used, a post-test oral examination should be structured. The court found that point to be significant.

Next, the court heard from Maureen Kast, the Director of Human Resources for the Town of Greenwich for the past three and one-half years. Early in her testimony the issue of declassification of the positions of the heads of the various departments in the town, including police and fire, and that of their deputies. She told the court that because of their work experience, candidates for these positions are difficult to test. At this point, her testimony was interrupted and a discussion took place on the record, after which all parties stipulated that the Board of Selectmen had the power to declassify these positions. The Captain position is still classified, but it was taken out of the bargaining unit as of 1999. It is referred to as "MC" (i.e., managerial classified). The witness indicated that she was advised by the First Selectman that the Deputy Chief position had been declassified, and that she had participated in the process of revising the job description and minimum qualifications for it and the Captain's slot. She described some of the changes in wording as a clarification. The witness also testified that the changes in the minimum qualifications for the position was an attempt to "open up" the process and to facilitate the succession plan.

Kast testified that in hiring patrol officers, rank order on the eligibility list is not always followed. However, she seemed somewhat confused when she said that all candidates are interviewed, even those for sergeant and lieutenant. The evidence simply does not support the latter assertion. She admitted that all unclassified employees are to be chosen on the basis of "merit and fitness," (EXHIBIT #26 ¶ 218(a)) and indicated that Human Resources was in a position to "intervene" if the hiring authority proposed to select an unqualified candidate. However, she qualified that by saying that intervention simply involved bringing the matter to the attention of the First Selectman and was not a veto.

Of significance, she admitted that all members of the Silver Shield can enforce a past practice (EXHIBIT #35 p. 25). She also confirmed that a Police Captain must come from the ranks of the union. (EXHIBIT #35 p. 24.) However, she testified that as an MC position, Captains should be placed on the list based upon the exam, but chosen based upon the post-exam interview. To her knowledge, she said, that in the past, the top ranked candidate has always been chosen. She told the court that CT Page 15244 after she was hired in October 2003, Human Resource staff told her that the interview for higher-ranking positions was "a formality." As to the implementation of the recent organizational changes in the Police Department, she testified that the First Selectman wanted to "go fast," and she confirmed that the two prime candidates asked for a more deliberate process. (i.e. Ridberg and Pacewicz.)

Lieutenant Michael Pacewicz was recalled to the stand, and he recounted his accomplishments in the Greenwich Police Department and the Silver Shield. The court found him to be a hard working and diligent officer. In addition to his resume, he testified at some length about the selection process for Captain in 2003. He told the court that the Assessment Center was only the first step in the process. In fact, he testified that he saw his test result for the first time just before the interview, but he felt that "the result of the test was not important." He based his assumption regarding the likelihood of an interview on the personnel policy manual, the definitions in the Greenwich Pay Plan, and his past experience (specifically interviews given to MC employees). He did state later, on cross examination that he did not know "for sure" that there would be an interview, but "believed" that there would be one. Since the clear weight of the testimony and evidence demonstrates that such an interview had never taken place before in connection with the promotion to the ranks of sergeant, lieutenant, and captain, the court has placed little stock in this part of his testimony. In fact, he admitted on cross examination that, in the past, such interviews were conducted by the Chief of Police merely to discuss the duties associated with the position.

Next, he said that Walters made what he described as the "official" statement at the staff meeting in May 2003 regarding his intention to interview two of the candidates. This implies that there was prior knowledge within the Department. This does not square with the clear weight of the testimony of other officers who were clearly surprised by the announcement. He and Walters are the only officers to testify regarding the "rumor mill." In fact, at that time, the Silver Shield representatives at the meeting raised many questions. He told them that it was not the "proper forum" to discuss union matters. The Staff meeting, he opined, is to be used to make departmental updates regarding "police business." This testimony totally ignores the fact that it was Walters himself who introduced the topic. Again, his testimony on this score is not credible. When confronted by Sergeant Barry, he told him that the Captain's position had been negotiated out of the bargaining unit. This position is correct as far as it goes, however, one point upon which there is universal agreement is the fact that it was also negotiated into the collective bargaining agreement that a Police CT Page 15245 Captain must be appointed from the ranks of the union.

The witness was asked a series of questions regarding the bargaining process involved the agreement in 1999 (Exhibit RR) to take the position of Police Captain out of the bargaining unit and the to insert into the Collective Bargaining Agreement the requirement of Silver Shield membership. He testified that both he and Honulik were actively involved to varying degrees during the different phases of those negotiations. He said that both he and Honulik opposed the removal of the Captains. More important, he testified that Al Cava, on behalf of the town adamantly refused to discuss the promotional process for Captains, stating that it was not a subject for bargaining. Pacewicz did admit that a Police Lieutenant is still part of the bargaining unit until his or her promotion, as well as the fact that new hires are not in the bargaining unit and are treated differently.

Damages Phase (June 8 and 11)

The plaintiff commenced this phase of the hearing with the introduction of Frank Altieri to explain his claim for damages as set forth in certain charts and spreadsheets. The witness testified that he was not a CPA, but that he understood payroll registers, having served as the Deputy Commissioner of Education for ten years, and is currently Acting Budget Director of the City of New Haven and a consultant to the mayor. In preparing the exhibits, he and his staff analyzed the payroll registers as to Ridberg, Pacewicz, and Honulik from June 17, 2003 and April 13, 2007. He was examined and cross examined with regard to numerous exhibits. The court found him to be a forthright and credible witness.

The last payroll.

The plaintiff testified next briefly as to damages. Honulik told the court that he had no present plans to retire, even though he will have reached his maximum percentage (78.5%) in approximately a year and one-half, and in that event, his salary would continue to increase. More important, he said that he loves what he does and has given no thought to retirement other than on his normal retirement date ten years from now. The fact that he was not promoted, he believes, would negatively impact him if he were to look for a job since rank would play a role. He testified briefly regarding his automobile expenses (Exhibit #86). He confirmed that as a Captain he would not receive overtime, and that he would not be eligible for extra work within the Department. He could take on extra work in the private sector ("red book").

The final witness was the defendant Alfred Cava, who was called by the defendants primarily to address the issue of damages, but he touched on CT Page 15246 some other issues. In brief, he reiterated the Town's position that, subject to the terms of any collective bargaining agreement, it has the right to apply the "Rule of the List" and appoint anyone from that list. He told the court that when the Captains came out of the bargaining unit in 1999, they became subject to the promotional process regarding MC positions. To that end, he said that he had no problem with Walters conducting a post-test interview. Cava confirmed that he spoke with Walters twice before the interview, and he had "no misgivings" with him asking the questions. He testified that Walters had asked if he needed to indicate that there would be a post-assessment center interview in the announcement for the opening for Police Captain in 2003, to which he replied, "no." The court found this to be significant, in that by all accounts the proposed interview was clearly a departure from past practice and was anticipated to be controversial. The witness then spent considerable time explaining the Town's position regarding damages. In brief, he told the court that the basis should be a comparison of total compensation of all three men during the period in question.

This case should be a cautionary tale for all of us who, to varying degrees, hold the public trust, whether by election or appointment, which should remind us that we owe a duty (a) to those whom we serve, to do so faithfully, honestly, and humbly, and at all times keeping in mind the common good; and (b) toward those whom we supervise, to act fairly, courteously, with concern for their dignity and welfare, and to honor our agreements, written and unwritten, recognizing that, among other things, an employee's loyalty and service to an organization raises, in turn, his or her reasonable expectations for recognition and advancement. Sadly, this lesson was lost upon the Town of Greenwich and the individual defendants, Walters and Cava, as well as the First Selectman, James Lash, who, with arrogance and the misguided notion that their actions have all been for the good of the Town of Greenwich and the Greenwich Police Department, and have thereby created a situation where two dedicated, loyal, and long-serving public servants now find themselves on opposite sides of this litigation, and many rank and file members of the Department find themselves at odds with higher authority. Certainly this situation neither is what the people of Greenwich bargained for in the selection of their public officials, nor do they deserve, especially with regard to such a vital public service.

As this court pointed out on several occasions during the course of the trial, the better, more equitable solution has always rested exclusively within the hands of the Town of Greenwich and its agents, and not with the court, since, within the framework of the present action, it is not in the court's power to grant such relief as would fully satisfy both Honulik and Pacewicz. Apropos this point, in his CT Page 15247 Supplemental Findings of Fact and Conclusions of Law, the defendant Pacewicz asks the court not to remove him from his position, but rather appoint Honulik to another, currently vacant Captain's position. For reasons which should be apparent, this court believes that such a course is beyond the scope of its power, given the nature of the relief sought, the pleadings and evidence. On the other hand, the testimony supports a finding that the Town has the power to appoint officers to a higher rank on an emergency basis and also to fill positions by lateral transfers. Sadly, however, although it has the power to do so, the Town of Greenwich, through its agents and servants, has not only failed to resolve this matter equitably, but, during the course of this litigation, it has also made the situation worse, with its thinly-disguised efforts to assure the results desired by Walters and Lash, regardless of the outcome of these legal proceedings, in particular, with the implementation of the procedural and structural changes to the upper ranks of the Greenwich Police Department and the application process which had been adopted earlier this year. As a result, there is no easy way for the court to untie this legal "Gordian Knot" but to slice cleanly through it.

FINDINGS

The court having considered the testimony and evidence makes the following findings of fact:

1. That the Town of Greenwich operates under a merit system in connection with the hiring and promotion of municipal employees; that "all appointments and promotions to offices and employment in the administrative service of the Town under the supervision and control of the First Selectman . . . shall be on the basis of merit and fitness"; that said employees are categorized as Classified and Non-classified; that the ranks of the Classified employees are further divided into represented (i.e., covered by a collective bargaining agreement) and non-represented employees; that in April 2003, the office of Police Captain was within the Classified Service; and that within the Greenwich Police Department, the hiring authority is the Chief of Police, subject to the approval of the Board of Selectman.

2. That the merit system of the Town of Greenwich is governed by the provisions of the Town Charter (Exhibit #26), the Personnel Policy Manual (Exhibits #27, #28, #29, #30, #31, and #32), the Greenwich Classification and Pay Plan, in particular, Article 4.0, Rule I, ¶ 1.8 thereof which requires that positions in the Classified Service " shall be filled based upon the results of a competitive examination process." (Exhibit #24, emphasis added), an Agreement between the Town CT Page 15248 of Greenwich and the Silver Shield Association, Inc., dated May 11, 1999, in particular ¶ 1 thereof which requires that the position of Police Captain be filled by a member of the Silver Shield (Exhibit RR), and the Collective Bargaining Agreement between the Town of Greenwich and the Silver Shield Association, Inc. in effect in April and May of 2003 (Exhibit #35), in particular, ARTICLE XXVIII, which makes specific provision for honoring past practices.

3. That in April 2003, the office of Police Captain was considered a classified and non-represented position; that the hiring authority was the Chief of Police subject to the approval of the Board of Selectmen; and that the standard to be applied was the selection of the candidate for the position with the highest score, from among the other candidates who had been certified to the promotion list in "rank order" from highest to lowest.

4. That the Personal Policy Manual (Exhibit #31) provides in relevant part that: "All vacancies in a classified position that are not included in an employee bargaining unit shall be filled from eligibles certified by the Director of Personnel from an appropriate employment list; that the position of Police Captain is a Classified position and was not part of the bargaining unit in April 2003; that the selection of a person to fill such a position was subject to the terms of the Collective Bargaining Agreement (Exhibit #35), in particular ARTICLE XXV, ¶ D thereof which requires that the position of Police Captain be filled from the ranks of members of the collective bargaining unit; that under the circumstances, the "appropriate employment list" was the list prepared following the assessment center examination in May 2003 (Exhibit #25); and that at all relevant times, the plaintiff was a member of the bargaining unit and was ranked number one on said list by virtue of his having scored highest on the assessment center examination.

5. That the Personal Policy Manual (Exhibit #29, § 402.1, p. 2) provides in relevant part: " Establishment of Employment Lists — Employment lists shall be of three kinds: eligible list, promotional list, and re-employment list (in rank order). The Director of Personnel shall establish and maintain such promotional lists and eligible lists for the various positions in the competitive service as deemed necessary or desirable to meet the needs of the service. The names of eligibles shall be placed on promotional lists and eligibility lists in the order of their grades . . ."; and that said Manual specifies that: "All vacancies in a classified position that are not included in an employee bargaining unit shall be filled from eligibles certified by the Director of Personnel from an appropriate employment list." (Exhibit #31, § CT Page 15249 402.6, p. 1); and that in April 2003, the position of Police Captain was in the Classified Service but not in the bargaining unit.

6. That on or about March or April 2003, a vacancy occurred in the office of Police Captain; that the promotion to that position would be internal, that is, made from within the existing ranks of the Greenwich Police Department; that on April 4, 2003, the announcement for the promotional exam for said position indicated that it would be held on May 8, 2003, and that it would be "100%-Assessment Center," and that no mention was made in said notice of any other requirement, including a post-examination interview.

7. That the Personnel Policy Manual for the Town of Greenwich (Exhibit #29, § 402.1, p. 2) states in relevant part, that: "Each applicant shall be given official notice of the final grade and relative standing on the employment list . . . immediately after the certification of the employment list to the appointing authority" (emphasis added); that the Assessment Center results were sent to the Human Resources Department by letter dated May 21, 2003 (Exhibit T); that Human Resources notified Honulik of his score only and not his rank by letter dated May 23, 2003 (Exhibit #9); that Honulik was not notified of his rank on the promotional list until minutes prior to the interview on May 29, 2003; and that the defendants failed to comply with provisions of the Personal Policy Manual, in particular, the section entitled "Notification of Exam Results" (Exhibit #29, § 402.1, p. 2).

8. That prior to June 17, 2003, the evidence supports a further finding that the well-established past or prevailing practice within the Greenwich Police Department of the hiring authority was to fill a vacancy with the top scoring candidate listed in rank order on the promotional list; and that applicants for the position of Police Captain had a reasonable expectation that said past or prevailing practice would be followed.

9. That in April 2003, the Notice of Examination (Exhibit #1), which included a job description, set forth three broad areas of responsibility, any or all which a Police Captain could be expected to perform, to wit: (1) Criminal Investigations, (2) Professional Standards and Strategic Planning, and (3) Uniformed Services; that the areas of Criminal Investigations and Uniformed Services were being filled by the two Police Captains respectively then occupying those positions, and that the vacancy in the office of Police Captain for which the examination was being conducted called for the appointment of a "Professional Standards Captain"; that the Assessment Center report (Exhibit T) indicated that Honulik was the candidate best suited for CT Page 15250 such a position based upon the results of the testing; and that Honulik achieved the highest score on the Assessment Center Examination (Exhibits #6 and # 25).

10. That the Town Charter, Personnel Policy Manual, and the Greenwich Classification and Pay Plan neither specifically mandate nor prohibit the use of a post-exam interview as part of the promotion process; that prior to the interviews conducted on May 29, 2003, the Greenwich Police Department had not relied upon a post-examination interview of candidates on the promotional list as a substantive part of the process in making such a promotion; that promotion to the next higher position solely on the basis of one's rank on the promotion list is found to be an established past or prevailing practice; and that where such an post-examination interview has taken place, it was in the context of either an "open application process" or an inquiry of the successful candidates would accept given the likely reduction in pay.

11. That Walters was never the immediate supervisor of Honulik; that Walters was the immediate supervisor of Pacewicz for significant periods of time; that Walters was aware of the past practice of promoting the highest ranked (by score) candidate on the promotional list; that he intended to deviate from the established practice prior to the notice of the assessment center examination; that his failure to appoint Honulik was motivated by bias against Honulik and favoritism toward Pacewicz; and that in approving the selection of Pacewicz, the Town of Greenwich, through its agents Cava and Walters, was complicit therein.

12. That on or about December 2006 and January 2007, the reorganization of the upper ranks of the Greenwich Police Department and the amendments to the qualifications for the position of Deputy Chief, while ostensibly instituted as part of a "succession plan" for the Department, were, in fact, part of a pattern to advance the career of the defendant Pacewicz and to hinder the advancement of Honulik, and in addition were intended by the defendants to, so to speak, "hedge their bet" as it related to the ongoing litigation and to assure that their plan would succeed in the event of an adverse ruling therein, and as evidence thereof.

A. The position of Deputy Chief was removed from the Classified Service on January 4, 2007;

B. the position of Deputy Chief was deemed open to all candidates with supervisory experience and not just those holding the rank of Police Captain;

CT Page 15251 C. the requirement of a bachelor's degree was eliminated, as contrasted with the current qualifications for the lower-ranking position of Police Captain, which are more stringent, and with the knowledge that the defendant Pacewicz did not have such a degree;

D. the preparation of organizational charts in November/December 2006 prior to the implementation of such changes, and in particular Exhibit #68, listing, among other things, the proposal to promote Captains Ridberg and Pacewicz to Deputy Chief;

E. the conference of Captains Pacewicz and Ridberg with Lash in early January at which time Lash strong suggestion of his intention to immediately promote both to the position of Deputy Chief.

F. the conference of Walters with Bonney and Kordick on January 2, 2007, where he indicated that it was his intention to immediately promote Ridberg and Pacewicz to Deputy Chief; and

G. The announcement of January 4, 2007 (Exhibit FF), outlining changes in the Department, including the intention to recommend two persons to fill the position of Deputy Chief.

The court having heard the testimony and evidence, hereby makes the following findings of law:

1. That in the absence a provision of a statute or collective bargaining agreement to the contrary, the court may also take into consideration past or prevailing practices.

2. That the defendant Pacewicz has failed to establish that, as the current holder of the office of Police Captain in the Greenwich Police Department, he has a right to occupy same; and that the plaintiff Honulik has established that he has a right to occupy said office.

3. That under all the facts and circumstances, the plaintiff does not have an adequate remedy at law in his underlying action for a writ of quo warranto and a writ of mandamus, in that, in addition damages in the form of lost wages and benefits, the case involves the status of the office of Police Captain, the issues involve not only an arbitrary change in an established past practice, but also organizational changes within the Greenwich Police Department which impact future promotions for the plaintiff and others similarly situated, and accordingly injunctive relief should also be appropriate.

4. That the Collective Bargaining Agreement (Exhibit #35) is a CT Page 15252 contract; that in looking at the Collective Bargaining Agreement as a whole and taking into account the language contained therein, said agreement clearly and unequivocally provides that members of the Greenwich Police Department, including those holding the rank of Lieutenant, are members of the bargaining unit and are covered by the provisions of the agreement; that promotions to the rank of Police Captain must come from the membership of said union; that in the absence of specific provisions to the contrary, members of the union and the Town of Greenwich must honor past practices; that, other than as aforesaid, the Town of Greenwich specifically and unequivocally declined to negotiate a specific provision regarding the manner of testing and selecting a person promoted to the rank of Police Captain; and that therefore, the Collective Bargaining Agreement calls for the implementation of the procedure of promoting in rank order from the promotion list and not according to the "Rule of the List," so called.

5. That the plaintiff has a protected property interest in his promotion to Police Captain, as the highest scoring candidate certified to the promotion list and meeting all of the underlying criteria for said office, pursuant to established rules of the Town of Greenwich, including past practices; and that as a result of their actions, the defendant Town of Greenwich, and the individual defendants Cava and Walters, failed to accord Honulik his due process rights as guaranteed by the United States Constitution, and in derogation of 42 U.S.C. § 1983.

DISCUSSION TEMPORARY INJUNCTION

The purpose for utilizing a merit system in the hiring and promotion of state and municipal government employees is to fill such positions with qualified individuals, and to do so, to the extent possible, by eliminating bias and favoritism. In order to do so, the discretion of the hiring authority should be kept to a minimum. Writing for a unanimous court over a century ago, Justice Baldwin observed that, "one main object of these [civil service rules] was to limit the exercise of authority so liable to abuse . . ." Thompson v. Troup, 74 Conn. 121, 124 (1901). Where the rules are applied fairly, the governmental body is assured of a qualified employee, and the reasonable expectations and ambitions of the individual employees are protected. The Charter of the Town of Greenwich has established a merit system for employment, in that § 218(a) of the Greenwich Municipal Code provides in relevant part that, "all measures for the control and regulation of employment therein shall be on the basis of merit and fitness." (Exhibit #26) (emphasis added). CT Page 15253

The merit system is otherwise known as civil service. "Proper competitive examinations are the cornerstone upon which an effective civil service system is built." Mattera v. Civil Service Commission, 49 Conn.Sup. 224, 231-32 (2004). The object of such examinations is, "to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect employees from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination . . ." Kelly v. New Haven, 275 Conn. 580, 618 (2005). (Emphasis added.) After surveying the state of the law, the Connecticut Supreme Court observed that the survey, "serves to demonstrate the consistency of the limited discretion afforded in promotional decisions under the civil service system." Id., 623.

The plaintiff herein initially sought preliminary injunctive relief, in brief, the prevention of a promotional exam to fill another captain's position which had become vacant since the date of the last one from which he claims he was wrongfully deprived. The Superior Court has the statutory authority to grant relief by way of a writ of injunction. General Statutes § 52-471. The purpose of a preliminary or temporary injunction is to maintain the status quo until the underlying case can be heard on the merits. "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . ." Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807 (2006); Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598 (2002). In such situations, the Connecticut Supreme Court has approved what has come to be known as the "balancing of the equities test," which involves, "the application of familiar equitable principles in the context of adjusting the rights of the parties during the pendency of litigation until a final determination on the merits. Griffin Hospital v. Commission on Hospitals, 196 Conn. 451, 458-60 (1985). It is essentially a four-part test. In a case involving the plaintiff's motion for a stay pending appeal, the trial court analogized the relief sought to the granting or denying of a temporary injunction, and the Supreme Court agreed. The four-step test was set forth therein as follows: "(1) the plaintiff had no adequate legal remedy; (2) the plaintiff would suffer irreparable injury; (3) the plaintiff was likely to prevail on appeal; and (4) the balance of the equities favored a stay." Waterbury Teachers Association v. Freedom of Information Commission, 230 Conn. 441, 446 and 451 (1994).

"Whether damages are to be viewed by a court of equity as `irreparable' or not depends more upon the nature of the right which is CT Page 15254 injuriously affected than upon the pecuniary measure of the loss suffered." Robertson v. Lewie, 77 Conn. 345, 346 (1904). Were underlying basis of the legal action a, "single, discrete dispute" between two persons for the same office, quo warranto is a proper vehicle to redress the alleged wrong. New Haven Firebird Society v. Board of Fire Commissioners, supra, 438. Accordingly, where there is an adequate remedy at law such as mandamus or quo warranto, or, for that matter, an action to recover lost pay, injunctive relief will not lie. Bartlett v. Rockville, 150 Conn., supra, 432 (1963) (action for declaratory judgment). However, where, as here, the issue is broader, such as an arbitrary change in a work rule or established past practice, quo warranto or mandamus are not totally effective since they only address the status of the particular office. Moreover, such issues are best addressed where all interested parties, such as a labor union, have an opportunity to be heard. New Haven Firebird Society v. Board of Fire Commissioners, supra, 438. Whether or not the conduct of the parties constitutes a past or prevailing practice, and if one or both of the parties relied upon same, are questions of fact for the court. Ruzicka v. General Motors Corporation, 707 F.2d 259, 260-61 (6th Cir. 1983).

The plaintiff seeks relief, both legal and equitable, through multiple avenues. Under the facts of this case, it is clear to the court, that each avenue, in and of itself will not provide an adequate remedy. The defendants have by their actions demonstrated that absent some stay or other injunctive relief, that they are likely to continue to cause harm to the plaintiff and others in the Department similarly situated. The court finds that such harm would be irreparable, and that the plaintiff is likely to prevail on appeal. Accordingly, the court finds that it is equitable and appropriate to enter injunctive relief, in addition to the other remedies provided herein.

Under ordinary circumstances, where a temporary injunction is granted, the party in whose favor it is granted is required to post a satisfactory bond with surety. General Statutes § 52-472. Like a recognizance, the purpose of such a bond is to hold a party responsible for any damages which might ensue from its failure to "prosecute the action in which the injunction is applied for to effect." This phrase has been interpreted to mean that the plaintiff should ultimately obtain the relief that he seeks. Lawlor v. Merritt, 81 Conn. 715, 719 (1909). However, where for good cause shown, a judge believes that no bond should issue, it is within his or her discretion to waive the requirement. General Statutes § 52-472. Here, the plaintiff has pursued the matter to a conclusion with due diligence. The purpose of the injunction is to enjoin the defendant Town of Greenwich, its agents, CT Page 15255 servants, and employees, from taking any action during the time in which an appeal from this decision could be taken, and in that event, during the course of the appeal, which action or actions would undermine this order. In addition, the court believes that the defendants will continue to thwart the advancement of Honulik within the Department, and thus would result in irreparable harm to him.

As set forth elsewhere in this decision, the Town of Greenwich, through its agents, servants, employees, and/or public servants, Cava, Lash, and Walters, has not acted in good faith during the course of this litigation, as it, among other things, initiated changes in the structure of the Police Department and certain job qualifications in late 2006 and early 2007, in particular with regard to the positions of Police Captain and Deputy Chief, which were designed to advance its own agenda, regardless of the outcome of the present litigation. Accordingly, under the circumstances of this case, the court finds that it is appropriate to waive the need to file a bond by the plaintiff.

BREACH OF CONTRACT (As to the Town of Greenwich)

"It is axiomatic that a collective bargaining agreement is a contract." D'Agostino v. Housing Authority, 95 Conn.App. 834, 838 (2006). As such, it should, "be considered as a whole and all relevant provisions will be considered together." Barnard v. Barnard, 214 Conn. 99, 109 (1990). In addition, in construing a contract, the court must do so in such a manner so as, "to effectuate the intent of the contracting parties," by considering, "not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish." Id., 109-10. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . The court's determination as to whether a contract is ambiguous is a question of law." Kline v. Kline, 101 Conn.App. 402, 407-08 (2007); Trugreen Landcare v. Elm City Devlp. Constr. Serv., 101 Conn.App. 11, 14, (2007).

Applying the foregoing principles to the testimony and evidence in the present case, it is uncontroverted that in the Greenwich Police Department the ranks of Police Officer through and including Police Lieutenant are covered by the Collective Bargaining Agreement (Exhibit #35, Appendix I) and that the Silver Shield is the exclusive bargaining representative. It is further established that at all times relevant to this lawsuit, including the present, Honulik holds the rank CT Page 15256 of Police Lieutenant, and is therefore covered by the terms of said agreement. Furthermore, in addition to the normal labor-management issues, such as the terms and conditions of employment, the Collective Bargaining Agreement also provides that, "promotion to the classification of Police Captain shall be made from bargaining unit employees who are candidates certified to the promotional list." (Exhibit #35, ARTICLE XXV, ¶ D.) This provision was included in the Collective Bargaining Agreement as a result of negotiation at or about the time that the rank of Police Captain was taken out of the bargaining unit. At the same time, according to the testimony of Cava, the Town adamantly refused a union request to discuss the method to be used for the selection of individual police officers to fill the rank of Police Captain, as it was, in his words, "not a subject of bargaining." During the course of this litigation, the Town of Greenwich argued that because it has consistently adopted this stance, that it is, therefore, free to unilaterally set the terms and conditions of promotion to Police Captain, and cites as support for its argument, the refusal of an arbitration panel to consider the grievance filed by the Silver Shield and Honulik following the latter's being passed over for the promotion. (Exhibit #79.)

The Town has by its actions conceded the fact that, throughout the entire examination and selection process, up until acceptance of the position of Police Captain, Pacewicz was, and, for that matter, any other candidate, is a represented employee and, by virtue of that fact, subject to the terms of the Collective Bargaining Agreement during that period. The Court has taken note of the fact that in its offer of the position of Police Captain to Pacewicz it states quite clearly that, "In accepting this promotion you are transferring from a represented position to a non-represented position." (Exhibit #46.)

In the first place, this court is not bound by the declination of the arbitration panel to act, especially since that body did not make any substantive findings regarding the underlying issues, such as breach of contract, quo warranto, etc. This court is, in fact, bound to apply the law to the facts as found in the testimony and evidence presented to it during this very lengthy trial. More important, it was by its choice, that the defendant Town of Greenwich, through its agent Cava, during negotiations with the union, purposely refused to include in the Collective Bargaining Agreement the method of selecting persons for promotion to the rank of Police Captain, despite the uncontroverted fact that candidates to fill that position must come from within the ranks of police officers covered by the terms of said Agreement. In addition, Cava conceded on cross examination, that the failure to promote from the ranks of the union would subject the Town to a grievance. In addition, the Greenwich Classification and Pay Plan itself provides that: "Any inconsistencies between these rules and procedures and collective bargaining agreements shall be read in favor of the collective bargaining agreements." (Exhibit 24, Article 3.0, ¶ 3.2.)

Under the circumstances, said Collective Bargaining Agreement clearly and unequivocally provides that past practices shall govern. in addition, the clear weight of the evidence supports a finding that prior to June 17, 2003, the well-established past or prevailing practice within the Greenwich Police Department was to fill a vacancy with the CT Page 15257 top scoring candidate listed in rank order on the promotional list; and that therefore, applicants for the position of Police Captain, including Honulik, had a reasonable expectation that said past or prevailing practice would be followed. As evidence of this past practice, the court finds significant the sequence of events during 1999, starting with the Agreement reached between the Town of Greenwich and the Silver Shield dated May 11, 1999 (Exhibit RR) in which the position of Police Captain was taken out of the bargaining unit in return for an agreement that the position would be filled by a union member. It is significant to note, that subsequent to that date, on July 12, 1999, the Town posted a promotional exam for two Police Captains positions, indicating that the examination would be "100% Assessment Center." (Exhibit #14.) Thereafter, on November 22, 1999, the officers with the two highest scores (Lieutenants DeAngelo and Ridberg) were appointed to the vacancies. (Exhibit #19.) In the interim, each was requested to appear for an interview (Exhibits #16 and #17), which, according to the uncontroverted testimony of then Chief of Police Robbins, was a formality, and not part of the selection process, at which time each was asked if they actually wanted the position, since it would likely result in a reduction in pay due to the loss of overtime. (TR Robbins, 9/18/06, pp. 100-03.) After some time for consideration, the officers accepted, and Robbins asked Human Resources to raise the salaries of both (Exhibit #18), which request was approved. (TR Robbins, 9/18/06, pp. 104-05.)

ARTICLE XXVIII. PAST PRACTICES CLAUSE: The Police Manual of the Town of Greenwich and the Retirement System and the Police Pension Fund of the Town of Greenwich shall govern for all matters not contained in this Agreement. All benefits and obligations which are not described in this Agreement or in either manual or plan and which are now enjoyed by or are required of the employees are specifically included in this Agreement by reference just as though each such benefit or obligation was specifically set forth.

"The elements of an action for breach of contract are, the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Rosato v. Mascardo, 82 Conn.App. 396, 411 (2004). A contract may be express or implied in fact. "A contract implied in fact, like an express contract, depends on actual agreement," and the plaintiff has the burden of demonstrating the existence of same "by a fair preponderance of the evidence." Coelho v. Post-Seal International, Inc., 208 Conn. 106, 111-12 (1988). The clear weight of the evidence, including the testimony of witnesses for both the plaintiff and defendant, supports a finding that in failing to promote Honulik, who was ranked number one on the promotion list, the defendant failed to follow the established past practice, and as a result breached the contract.

"The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as he would have been in had the contract been performed . . . Damages for breach of contract are to be determined as of the time of the occurrence of the breach." [Internal quotes omitted.] Thames River Recycling v. Gallo, 50 Conn.App. 767, 790 (1998). As a consequence of the breach, Honulik seeks damages, including lost CT Page 15258 wages and benefits. The evidence supports a finding that the plaintiff is entitled to back pay from June 17, 2003, through and including April 13, 2007, in the amount of $62,533.86. [Exhibit #81.]

Plaintiff herein also claims prejudgment interest. General Statutes § 37-3a provides in part:

a) Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.

Prejudgment interest is awarded by the court, "to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him . . . The detention of the money must be determined to have beenwrongful . . . Its detention can only be wrongful, however, from and after the date on which the court, in its discretion, determines that the money was due and payable." [Internal citations omitted.] Northrop v. Allstate Insurance Company, 247 Conn. 242, 254-55 (1998). "Basically, the question is whether the interests of justice require the allowance of interest as damages for the loss of use of money." Southern New England Contracting, supra, 654. The award of such interest is within the discretion of the court. Nor'easter Group, Inc. v. Colossale, 207 Conn. 468, 482 (1988). Under the facts and circumstances of this case, the court finds that it is equitable and appropriate to award to the plaintiff prejudgment interest at the rate of 10% per annum on the award of back pay from and including June 17, 2003, to and CT Page 15259 including April 13, 2007, per his claim. [Exhibit #81.]

In addition, the plaintiff seeks to be reimbursed for the automobile expenses he has incurred as a result of the defendants' failure to promote him, and the evidence supports a finding that he is entitled thereto. [Exhibit #86.]

PROMISSORY ESTOPPEL (As to the Town of Greenwich)

Unlike basic contract principles where "a promise is generally not enforceable unless it is supported by consideration," a "fundamental element of promissory estoppel . . . is the existence of a clear and definite promise which the promisor could reasonably have expected to induce reliance." D'Ulisse-Cupo v. Board of Directors of N.D.H.S., 202 Conn. 206, 213 (1987). Promissory estoppel is an equitable remedy, and it "serves as an alternative basis to enforce a contract in the absence of competing common-law considerations." [Emphasis added.] Glazer v. Dress Barn, Inc., 274 Conn. 33, 88 (2005). Accordingly, since the court has found in favor of the plaintiff on the breach of contract count and he is entitled to relief thereon, it would be appropriate to decline to address the issue of promissory estoppel raised in the Second Count. However, since the court finds that there is an additional ground to deny relief thereunder, the court will briefly outline its reasoning on this issue.

Municipal estoppel, "may not generally be invoked against a public agency in the exercise of its governmental functions." Dornfield v. October Twenty-Four, Inc., 230 Conn. 622, 635 (1994). Moreover, the Connecticut Supreme Court has further held that in zoning cases, municipal "estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations." Bauer v. Waste Management of Connecticut, 234 Conn. 221, 247 (1995). "In order to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." Cortese v. Planning Zoning Board, 274 Conn. 411, 418 (2005). CT Page 15260

In applying the facts of this case to the foregoing elements, it is clear that the first element is satisfied, in that the Town of Greenwich, through its agents Walters and Cava, knowing that a post-test interview would be required, issued a notice of the examination as "100% Assessment Center" without any mention of the post-test interview, and that the plaintiff reasonably relied upon that notice, in line with the past practice of the Town regarding promotions within the Greenwich Police Department. As to the second element, the plaintiff had no reason to act otherwise or make inquiry, in that the first mention of the post-test interview was subsequent to the assessment center test. It is, however, the third element that proves problematic for the plaintiff. There is no evidence that the plaintiff changed his position, and in fact, it is unlikely that he would have in any event. In point of fact, the plaintiff testified that it was not the fact that an interview was scheduled post-assessment center, it was the fact that the original notice did not contain a mention of it. Saye v. Howe, 92 Conn.App. 638, 649 (2005). For that reason, the count must fail. Accordingly, the court makes no finding as to the fourth element. West Hartford v. Gelinas, 18 Conn.App. 688, 693 (1989) [municipal estoppel].

QUO WARRANTO AND MANDAMUS (As to the Town of Greenwich, James A. Walters, Alfred C. Cava, and Michael A. Pacewicz)

The law is well settled in Connecticut that a police officer is a public official. McKeithen v. Stamford, 149 Conn. 619, 622 (1962); Bartlett v. Rockville, 150 Conn. 428, 430 (1963). Where, as here, a party claims that the current holder of the office of police captain is occupying that position unlawfully, the proper course of action is to proceed on a complaint in the nature of quo warranto. General Statutes § 52-491; Hinkley v. Breen, 55 Conn. 119, 121 (1887). "Writs of mandamus and quo warranto . . . can properly be considered as special statutory proceedings triable only to a court without a jury . . ." Demarest v. Fire Department of Norwalk, 76 Conn.App. 24, 32 (2003). In addition, the Superior Court has the statutory authority, where appropriate, to enter either a final or interlocutory order of quo warranto or mandamus. General Statutes § 52-493. "It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute . . . [and] . . . A successful action in quo warranto ousts the wrongful office holder and declares the position vacant." [Internal quotation marks omitted.] Demarest v. Fire Department of Norwalk, supra, 29. In fact, the Connecticut Supreme Court has held that where, "a court has found the defendant's title to be defective . . . we have consistently held that CT Page 15261 the defendant must be ousted." (Emphasis added.) State ex rel Gaski v. Basile, 174 Conn. 36, 42 (1977).

While the issue was not raised by either party during the course of the hearing on the injunction, the court notes that, unless the State of Connecticut has voluntarily waived the right to be named as party to the action, some cases hold that the state must be named a party. The record in this case does not contain a waiver by the State of Connecticut, and, to date it has not been named as a party. State ex rel Andrew v. Lewis, 51 Conn. 113, 127 (1883). During the proceedings, the court raised the issue sua sponte, however, both parties indicated that was not an issue in this case. The court suggested that perhaps the fact that the office in question was not an elective one distinguished it from that line of older cases.

Once the office is vacant and title to the office is settled by quo warranto, a writ of mandamus may be sought to restore the ousted claimant to that office. State ex rel. Comstock v. Hempstead, 83 Conn. 554, 557-61 (1910). Mandamus is generally considered a remedy at law, and will not normally lie where the party has an adequate remedy at either law or equity. However, where, as here, the plaintiff is entitled to relief and the individual remedies sought are each only partially sufficient, the courts have recognized that, "it is not of great importance whether we grant the relief by way of the legal writ of mandamus or the equitable remedy of injunction or by a combination of both." [Emphasis added.] Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480-81 (1982).

The preponderance of the evidence supports a finding that the defendant Michael A. Pacewicz has failed to meet his burden of proof and has unlawfully occupied, and is continuing to unlawfully occupy, the office of Police Captain in the Greenwich Police Department since June 17, 2003; that a Writ of Quo Warranto should enter ousting him therefrom forthwith; and that the office be declared vacant as of June 17, 2003. The evidence further supports the finding that it is appropriate that a Writ of Mandamus issue, directing the defendant Town of Greenwich to fill said vacancy forthwith by appointing the plaintiff, F. Gary Honulik to said office, effective June 17, 2004, together with all back pay and benefits retroactive thereto.

DUE PROCESS PER 42 U.S.C. § 1983 (As to the Town of Greenwich, James A. Walters, and Alfred C. Cava)

In a civil action for deprivation of rights, 42 U.S.C. § 1983 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 the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ." A "person" for purposes of the enforcement of this act includes municipalities, as well as their officers and employees. The United States Supreme Court has found that:

Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, CT Page 15262 or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decision making channels.

Monell v. New York City Dept of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018 (1978).

The initial step for the court in a "due process" inquiry is to, "determine whether the plaintiff was deprived of a protected interest, and if so, what process was . . . due . . . If a claimant does not sufficiently establish the existence of a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude." Santana v. Hartford, 94 Conn.App. 445, 468-69 (2006). Phrased another way: "In any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated." ATC Partnership v. Windham, 251 Conn. 597, 605 (1999).

The United States Supreme Court has held that "the significance of the private interest in retaining employment cannot be gainsaid." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 543 (1985). First and foremost, the court finds that at all times during the events in question, as a Lieutenant in the Greenwich Police Department, Honulik was a member of the police union known as the Silver Shield Association ("Silver Shield") and subject to the terms of Collective Bargaining Agreement (Exhibit #35) with the town. Accordingly, in light of the rights guaranteed thereunder and under the state and federal constitutions, the court finds further that he has a constitutionally protected property interest in his continued employment as a police officer in the Greenwich Police Department. Tedesco v. Stamford, 222 Conn. 233, 242 (1992).

The court notes that the Town of Greenwich has, in effect, conceded this point when it specifically agreed to a provision in the Collective Bargaining Agreement to the effect that: "The officer who is the subject of disciplinary action shall be given an opportunity to have a Loudermill hearing with the Chief of Police or his designee, prior to any disciplinary action being imposed." [Emphasis in the original] (Exhibit #35, ARTICLE XXIV B.1.).

Moreover, as a police officer he is also entitled to certain benefits, CT Page 15263 in particular, the right to pursue promotional opportunities in order to achieve higher rank. "A person's interest in a benefit is a `property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing . . . To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it . . . He must, instead, have a legitimate claim of entitlement to it." Ezekwo v. NYC Health Hospitals Corp., 940 F.2d 775, 782 (2nd Cir. 1991). "An implied contract or mutually explicit understanding is sufficient to create a property interest in public employment." Paskvan v. City of Cleveland Civil Service Commission, 946 F.2d 1233, 1236 (6th Cir. 1991).

In a well-reasoned analysis of the issue of whether or not a municipal employee has a property interest in a promotion, the United States Court of Appeals for the 8th Circuit, upheld the lower court ruling finding no such interest under the facts of that particular case. However, the case is helpful, in that it provides the court with some of the factors to be considered in its analysis. At issue was the promotion of a candidate from sergeant to lieutenant in the police department, where the Charter in Joplin, Missouri called for promotions to be made on the basis of "merit and fitness" and where the hiring authority was accorded the discretion to hire from among the three highest candidates (otherwise known as the "Rule of Three"). This case, however, is important because it sets forth the test to be applied by a court in order to make that determination. There, the court held that in order, "to determine whether Meyer [the candidate] has a property interest in a promotion to lieutenant, the court looks to the City of Joplin Charter and personnel Rules to see how promotions within the police department are handled." (Emphasis added.) Meyer v. City of Joplin, 281 F.3d 759, 761 (8th Cir. 2002). The present case is distinguishable on the facts, in that, among other things, the Town of Greenwich does not apply the Rule of Three, but more important, there is an established past practice to promote on the basis of the highest ranked individual on the promotion list.

In a similar vein, a case involving the Boston Police Department, the United States Circuit Court for the 1st Circuit was also helpful. There, the court held that, "where an appointing authority may consider factors in addition to the applicant's ranking on an eligibility list, a police officer's expectation of promotion based on that list will not rise to the level of a `property interest' entitled to constitutional protection." Stuart v. Roache, 951 F.2d 446, 455 (1st Cir. 1991). The same court had similarly so held in an earlier case, when it found that a candidate's expectations for promotion, were substantially diminished CT Page 15264 by the ability . . . of [the hiring authority] to consider subjective factors in addition to the written examination score." Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir. 1980). Once again, the established procedures for promotion in the Greenwich Police Department, distinguish these cases from the present case on the facts, since it is an established practice to promote on the basis of the highest ranking candidate based upon his or her examination score, and no other subjective factors.

The court notes that, other than Honulik, the exception was Sergeant Ryan, who had contemporaneous disciplinary problems, which the court would consider an objective and not a subjective consideration. No such impediment was present in the case of Honulik.

In looking at how promotions are awarded within in the Greenwich Police Department, the great weight of the evidence supports a finding that the Collective Bargaining Agreement clearly provides that promotions to the rank of Police Captain in the Greenwich Police Department must come from the membership of the Silver Shield, and that the promotion to that rank must be given to the officer who has been certified to the promotional list and who has the highest numerical rank on said list, it having become a well-established past practice. No other factors are involved in the decision, and, therefore, under the circumstances, Honulik's expectation of promotion based upon his rank on the promotion list rises to the level of a constitutionally protected property interest. (See Exhibit #35, specifically ARTICLE XXVIII entitled "Past Practices Clause.") "A property interest in promotion need not arise out of a contract or statute, but may be based on a de facto promotion program." Hermes v. Hein, 742 F.2d 350, 354-55 (7th Cir. 1984). The evidence clearly supports a finding that the Town of Greenwich had a merit-based promotion program which was in part based upon the Charter, written rules, policies and procedures, a written collective bargaining agreement, and in part upon a well-established past practice of promoting persons within the Classified Service by rank order on the promotion list. Accordingly, the defendants' failure to promote the plaintiff in accordance therewith constitutes an unwarranted deprivation of Honulik's fundamental property rights without due process.

In addition to damages and other relief, 42 U.S.C. § 1988(b) provides in relevant part: "In any action or proceeding to enforce a provision of sections . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs . . ." The court finds that under all the facts and circumstances of this case that the plaintiff is entitled to reasonable attorneys fees and costs incurred herewith.

EQUAL PROTECTION PER 42 U.S.C. § 1983 (As to the Town of Greenwich, James A. Walters, and Alfred C. Cava) CT Page 15265

"In order to state a claim for violation of his right to equal protection under the law, the plaintiff must allege that:

(1) he, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Silberberg v. Lynberg, 186 F.Sup.2d 157, 169 (Conn. 2002).

The weight of the evidence supports a clear finding that Honulik was treated selectively when compared with all similarly situated persons seeking promotion in the Greenwich Police Department. However, as to the second prong of the test, it is equally clear that the selective treatment was not based upon his race, gender, or religion, nor was it intended to inhibit or punish his exercise of any constitutional right. Accordingly, the question before the court is whether the actions of the defendants herein amount to malicious or bad faith intent to injure him. A recent decision of the Connecticut Appellate Court provides guidance on this issue in Arnone v. Connecticut Light Power Co., 90 Conn.App. 188, 195-96 (2005), where it held that:

A wilful or malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional . . . A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent . . . [Its] characteristic element is the desire to injure either actually entertained or to be implied from the conduct and circumstances . . . The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.

In applying this standard to the facts of this case, the court finds CT Page 15266 that the primary intent of the Town of Greenwich, acting through its agents Cava and Walters, was the promotion of the defendant Pacewicz to the position of Police Captain, although the attendant harm to Honulik was clearly foreseeable, as it was a natural consequence of its decision to ignore a well-established employment practice. In addition, the evidence supports a finding that Walters acted with animus toward Honulik on several previous occasions. While under the circumstances, this behavior on the part of all the defendants could be termed arrogant and biased, and, as such, deserving of vociferous public obloquy, it is not malicious under the above standard. Walters' argument as to the efficacy of a post-examination interview is self-serving at best, and an attempt to seek shelter behind a "rational basis" for his actions. Although he has failed to convince this court of his bona fides, this also does not amount to malice. Therefore, this count must fail.

ORDER

The court having heard the testimony of the parties and their witnesses, and having considered the evidence, JUDGMENT MAY ENTER in favor of the plaintiff on Counts One, Three, and Four of the Amended Complaint, and for the defendants on Counts Two and Five of the Amended Complaint, and it is HEREBY ORDERED that:

1. Since June 17, 2003, the defendant, Michael A. Pacewicz, has been illegally occupying the office of Police Captain in the Greenwich Police Department, and he is HEREBY ORDERED to cease occupying same forthwith;

2. Effective as of June 17, 2003, the plaintiff, F. Gary Honulik, is HEREBY promoted to occupy the office of Police Captain thereby vacated by the defendant Pacewicz, with seniority dating therefrom, together with all back pay, benefits, as well as prejudgment interest thereon, all as set forth herein;

3. The existing temporary injunction is hereby continued in full force and effect, as modified below, pending either the outcome of an appeal of this decision or upon the expiration of the period within which to take an appeal from this decision, provided there is full compliance with this order by the defendants herein, whichever shall sooner occur, and the Town of Greenwich, its agents, servants, and employees are HEREBY ENJOINED FROM AND SHALL CEASE ANY AND ALL OF THE FOLLOWING ACTIVITIES, including (a) filling the vacant office of Police Captain on either a temporary or permanent basis, except by placing Honulik therein, in accordance with this decree; (b) filling the vacant office of Deputy Chief with the defendant Pacewicz, or any other person, on either a temporary or permanent basis; (c) posting or otherwise CT Page 15267 publishing any further notices of vacancies in said positions, as well as conducting or hiring an outside party to conduct examinations and interviews to fill either or both positions, either temporarily or permanently; and (d) further amending the organizational structure of the Greenwich Police Department so as to eliminate the currently vacant office of Police Captain which is the subject of this lawsuit and/or creating an additional office of Deputy Chief for the purpose of promoting Pacewicz thereto. The purpose of such injunction being to maintain the status quo pending the ultimate resolution of the issues herein.

The foregoing notwithstanding, in the event of a genuine emergency, seriously and immediately affecting the safety of the Town of Greenwich, the defendant, may apply to the Superior Court, and upon good cause shown, seek temporary relief from the provisions of this injunction reasonably necessary to meet said emergency, only for such time as said emergency exists.

Under all the circumstances, good cause exists for waiving the requirement that a bond be obtained by the plaintiff herein;

4. The defendant Town of Greenwich is hereby ordered to pay to the plaintiff the following sums, as and for damages incurred as a result of its breach of contract: (a) lost wages through April 13, 2007, in the amount of $62,533.86; (b) prejudgment interest during that period in the amount of $8,972.80; and (c) a recoupment of automobile-related costs in the amount of $3,450.00, for a total of $74,956.66. Said payment shall be made in full within thirty (30) days from the date of this order.

5. Pursuant to 42 U.S.C. § 1988(b), the defendant, Town of Greenwich, as well as the defendants Cava and Walters, shall pay to the plaintiff a sum equal to the reasonable attorneys fees and expenses of suit incurred by the plaintiff in this litigation, and a determination of the amount of said attorneys fees shall be reserved by the court until such time as the plaintiff's counsel has submitted an Affidavit of Fees and Costs. The plaintiff is directed to file with the court an affidavit of fees and costs, itemized as to date, time expended, and the nature of the legal service provided, within thirty (30) days from the date hereof, with a copy to all counsel of record, and the court reserves jurisdiction to schedule a hearing in order to give the defendants the opportunity, if they so choose, SOLELY to challenge any specific charge or charges as to reasonableness, and for no other purpose. If, after examining the affidavit of fees and costs, any defendant wishes such a hearing, they must request same within fourteen (14) days from the date that the affidavit was filed with the court. In the absence of such a CT Page 15268 request, the court will review the affidavit as filed and issue a supplemental order for reasonable attorneys fees and expenses.

6. Costs of suit shall be taxed to the defendants.

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