F. GARY HONULIK v. TOWN OF GREENWICH ET AL.
(SC 18046)
Norcott, Katz, Vertefeuille, Zarella and Schaller, Js.
Argued April 15, 2008—officially released February 24, 2009
Sheila A. Huddleston, with whom were Fernando F.
de Arango, assistant town attorney, Robin G. Frederick
and, on the brief, John Wayne Fox, town attorney, Jill
M. O’Toole and Laurie A. Sullivan, for the appellants-
appellees (named defendant et al.).
William J. Kupinse, Jr., with whom, on the brief,
was Andrew M. McPherson, for the appellee-appellant
(defendant Michael A. Pacewicz).
Kathryn Emmett, with whom was Christine Caul-
field, for the appellee-appellant (plaintiff).
Page 3Kevin M. Greco filed a brief for the Silver Shield
Association as amicus curiae.
Page 4Opinion
SCHALLER, J. The dispositive issue in this appeal is
whether
the
collective
bargaining
agreement
(agreement) between the named defendant, the town
of Greenwich (town), and the Silver Shield Association,
1
the union representing the town’s police officers
(union), governs the promotion to the position of police
captain, which is a position outside the bargaining unit,
and requires that the candidate with the highest assess-
ment score on a promotional examination be awarded
the promotion. The defendants, the town and certain
city officials,
2
appeal
3
from the judgment of the trial
court in favor of the plaintiff, F. Gary Honulik, conclud-
ing that the town breached its agreement with the union
and deprived the plaintiff of his property interest in the
promotion without due process of law when it passed
over the plaintiff for promotion to police captain despite
the fact that the plaintiff had received the highest
assessment score on the examination. On appeal, the
defendants claim that: (1) because the position of police
captain is outside the bargaining unit, the town had
discretion to promote any candidate from the promo-
tional list irrespective of their ranking according to
examination score; and (2) because the town has discre-
tion to hire out of rank order, it did not deprive the
plaintiff of his property interest without due process
of law. We agree, and therefore reverse the judgment
of the trial court.
4
The following facts and procedural history are rele-
vant to our resolution of the present appeal. On April
4, 2003, the town announced that an examination would
be administered to fill a vacancy for the position of
police captain in the town police department. The
announcement stated that the examination would be
‘‘100 [percent]—Assessment Center.’’ In an assessment
center examination, independent assessors evaluate a
candidate’s qualifications through a variety of testing
procedures including role-playing, written examina-
tions and interviews. The agreement between the town
and the union, in part, limits the potential pool of appli-
cants eligible for promotion to police captain—and
therefore eligible to take the examination—to members
of the bargaining unit protected under the agreement.
5
Five lieutenants from the town police department,
including the plaintiff, took the examination. Pursuant
to the town’s personnel policy and procedures manual
(policy manual) and classification and pay plan (pay
plan),
6
Alfred C. Cava, the town’s director of human
resources, certified a promotional list that ranked the
applicants’ examination scores from highest to lowest.
7
The plaintiff received the highest score and the defen-
dant Michael A. Pacewicz received the second highest
score.
8
Prior to the subject vacancy, James A. Walters,
the town’s police chief, had not been called upon to
make any promotions to the captain’s position. Six days
Page 5after theexamination, Waltersannounced thathe would
conduct a postexamination interview.
9
Walters inter-
viewed only the plaintiff and Pacewicz. Each interview
was brief and consisted of a few questions. Thereafter,
Walters notified each applicant that he had decided to
promote Pacewicz to police captain.
10
Subsequent to Walters’ decision to promote Pacew-
icz, the union brought an action to enjoin the promotion
temporarily. After the trial court denied the ex parte
injunction and scheduled a hearing for July 1, 2003, the
town officially promoted Pacewicz to police captain.
11
The plaintiff and the union filed a grievance alleging
that Pacewicz’ promotion violated a provision of the
agreement entitled the ‘‘Past Practices Clause.’’
12
After
the town denied the grievance, the union sought to
arbitrate the matter before the state board of mediation
and arbitration, but the board found that the grievance
was not arbitrable because the position of police cap-
tain was not within the bargaining unit and the promo-
tional process for that position was therefore outside
the scope of the agreement.
The plaintiff then filed this action against the defen-
dants, bringing claims for breach of contract, promis-
sory estoppel, quo warranto and mandamus, as well as
for violations of the plaintiff’s right to due process and
equal protection under the federal and state constitu-
tions.
13
On September 4, 2007, the trial court concluded
that, by failing to promote the plaintiff, the town had
breached the agreement and that the town, Walters and
Cava had deprived the plaintiff of his property interest
in the promotion without due process. Specifically, the
court concluded that the agreement governed the pro-
motional process. The court relied on paragraph D of
article XXV of the agreement (paragraph D), to con-
clude that because, at the time of the examination, the
plaintiff was still a lieutenant—and, therefore, still a
member of the bargaining unit—he remained protected
by the terms of the agreement. In determining what,
exactly, the agreement required, the trial court relied
on the testimony of numerous witnesses to conclude
that it was the past practice of the town to promote
the candidate with the highest assessment score. In
turn, the trial court concluded that the past practices
clause of the agreement required the town to promote
the plaintiff, and that the town breached the agreement
when it failed to do so. With respect to the plaintiff’s
due process claim, the trial court relied on its conclu-
sion that the agreement governs the promotional pro-
cess to conclude that ‘‘promotion to [police captain]
must be given to the officer who has been certified to
the promotional list and who has the highest numerical
rank . . . . No other factors are involved in the deci-
sion . . . .’’ Accordingly, the trial court ruled that the
plaintiff had a constitutionally protected property inter-
est in the promotion, and that by failing to promote the
plaintiff, the town, Walters and Cava deprived him of
Page 6his property interest in the promotion without due pro-
cess of law.
On the basis of these findings, the trial court granted
quo warranto and mandamus relief, ordering that
Pacewicz be removed from the position of police cap-
tain and that the plaintiff be promoted to that position.
In addition, the trial court awarded the plaintiff
$71,506.66 in back pay and prejudgment interest and
$3450 for the loss of the use of a vehicle, which the
town provides to all captains. Moreover, with respect to
the plaintiff’s due process claim, the trial court awarded
attorney’s fees pursuant to 42 U.S.C. § 1988 (b). The
trial court, however, denied the plaintiff’s promissory
estoppel and equal protection claims. Subsequent to
trial, both the plaintiff and Pacewicz filed motions to
open and modify the judgment. The trial court denied
Pacewicz’ motion to open and the plaintiff’s motion
to open with respect to compensatory and punitive
damages pursuant to 42 U.S.C. § 1983, but granted the
plaintiff’s motion to open in order to increase the award
for loss of the use of a vehicle from $3450 to $19,448.
The court also awarded attorney’s fees of $249,082.50
and costs of $32,066.01. The town, Walters and Cava
appealed from the judgment of the trial court. Both
Pacewicz and the plaintiff filed cross appeals.
14
I
The crux of this appeal is whether any provision
within the agreement or any other applicable town doc-
ument requires the town to promote the candidate with
the highest ranked score to the position of police cap-
tain, or whether the town has discretion to promote
any eligible candidate. The plaintiff claims that the trial
court properly determined the town’s past practices
required the town to promote the candidate with the
highest examination score, whereas the town claims
that the past practices clause of the agreement is inap-
plicable because the captain’s position is outside the
bargaining unit. Instead, the town contends that para-
graph D of the agreement specifically addresses the
promotion of a bargaining unit employee to the position
of captain, and permits the town to promote any bar-
gaining unit member who is certified to the promotional
list irrespective of rank order, which the town refers
to as the rule of the list. We agree.
In order to illuminate the basis of the parties’ argu-
ments, we first briefly review the history of the
agreement and the town’s promotional practices. The
critical moment came on July 1, 1999, when the town
and the union amended the agreement.
15
The present
appeal centers on the effect, if any, that these amend-
ments had on the promotional process for the position
of police captain. Prior to that date, the agreement’s
bargaining unit included all police sergeants, lieuten-
ants and captains. The testimony at trial established
that, with one exception,
16
for nearly thirty years the
Page 7town routinely had promoted the officer with the high-
est examination score—for example, from sergeant to
lieutenant or from lieutenant to captain.
17
After a period
of negotiation, however, the town and the union
amended the agreement to remove the police captain’s
position from the bargaining unit. At that time, the par-
ties also amended the agreement to include paragraph
D; see footnote 5 of this opinion; which requires that
promotion to police captain shall be made from mem-
bers of the bargaining unit certified to the promotional
list. No other amendments were made, and no other
clauses in the agreement specifically address the pro-
motional process to police captain.
Several months after the amended agreement took
effect, the town posted an announcement for two new
police captain vacancies. As with the announcement in
the present appeal, that announcement called for a 100
percent assessment center examination. Lieutenants
Michael DeAngelo and David Ridberg received the two
highest scores, and the police chief at the time, Peter
Robbins, promoted both of them to the respective cap-
tain vacancies. The plaintiff contends that these events
support his claim that, irrespective of the fact that the
captain’s position was removed from the bargaining
unit, the past practices clause in the agreement contin-
ued to require the town to promote the highest scoring
candidate or candidates to police captain. The town
contends that, while Robbins did in fact promote the
two highest scoring candidates, neither the agreement
nor the pay plan and policy manual required him to
do so.
18
Because the resolution of this issue calls for the inter-
pretation of both a collective bargaining agreement and
various municipal rules and regulations, we set forth
our standard of review. Principles of statutory construc-
tiongovernourinterpretation ofthetownpolicymanual
and pay plan. See Kelly v. New Haven, 275 Conn. 580,
607, 881 A.2d 978 (2005) (‘‘[a]s with any issue of statu-
tory construction, the interpretation of a charter or
municipal ordinance presents a question of law, over
which our review is plenary’’ [internal quotation marks
omitted]); Secretary of the Office of Policy & Manage-
ment v. Employees’ Review Board, 267 Conn. 255, 262,
837 A.2d 770 (2004) (applying statutory construction
principles to state statute regulating state employees’
personal leave and holiday time). Principles of contract
law guide our interpretation of collective bargaining
agreements. Poole v. Waterbury, 266 Conn. 68, 87–88,
831 A.2d 211 (2003). ‘‘The intent of the parties as
expressed in a contract is determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the trans-
action. . . . [T]he intent of the parties is to be ascer-
tained by a fair and reasonable construction of the
written words and . . . the language used must be
accorded its common, natural, and ordinary meaning
Page 8and usage where it canbe sensibly applied to the subject
matter of the contract. . . . Where the language of the
contract is clear and unambiguous, the contract is to
be given effect according to its terms. A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly,
any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms.’’ (Internal
quotation marks omitted.) Connecticut Light & Power
Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109–10,
900 A.2d 1242 (2006). ‘‘[T]he mere fact that the parties
advance different interpretations of the language in
question does not necessitate a conclusion that the
language is ambiguous.’’ (Internal quotation marks
omitted.)United IlluminatingCo. v.Wisvest-Connecti-
cut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).
‘‘[I]n construing contracts, we give effect to all the
language included therein, as the law of contract inter-
pretation . . . militates against interpreting a contract
in a way that renders a provision superfluous.’’ (Internal
quotation marks omitted.) Ramirez v. Health Net of the
Northeast, Inc., 285 Conn. 1, 14, 938 A.2d 576 (2008).
‘‘If a contract is unambiguous within its four corners,
intent of the parties is a question of law requiring ple-
nary review.’’ (Internal quotation marks omitted.) Mon-
toya v. Montoya, 280 Conn. 605, 612, 909 A.2d 947
(2006). ‘‘When the language of a contract is ambiguous,
the determination of the parties’ intent is a question of
fact, and the trial court’s interpretation is subject to
reversal on appeal only if it is clearly erroneous.’’ (Inter-
nal quotation marks omitted.) David M. Somers & Asso-
ciates, P.C. v. Busch, 283 Conn. 396, 403, 927 A.2d
832 (2007).
We now turn to the merits of the fundamental ques-
tion in this appeal, namely, whether the agreement
applies and requires the town to promote the candidate
with the highest assessment score to the position of
police captain.
19
We conclude that paragraph D of the
agreement does govern the promotional process, but
does not require the promotion of the highest scoring
candidate.
To better understand the question before us, we first
frame the issue with reference to the five primary posi-
tions within the town police department, namely, the
positions of sergeant, lieutenant, captain, deputy police
chief and chief of police.
20
Inherent in our inquiry is the
question of whether the agreement or town rules and
regulationsgovernthepromotional processfortheposi-
tion of police captain. To that end, we recognize three
distinct categories. First, it cannot be disputed that the
agreement governs the hiring processes for the posi-
tions of sergeant and lieutenant.
21
In that posture, all
the potential candidates and the positions themselves
lie squarely inside the bargaining unit. Second, it also
Page 9cannot be disputed that town rules and regulations,
rather than the agreement, govern the hiring processes
for the positions of deputy chief and chief of police.
22
In that posture, all the potential candidates and the
positions themselves lie outside the bargaining unit.
The question of what rules govern the third category,
however, is presented in this appeal. In this posture,
all of the potential candidates—town police lieuten-
ants—lie inside the bargaining unit, but the position—
police captain—lies outside the unit. As we shall see,
these distinctions are critical in the context of labor
law and, accordingly, to our resolution of the present
appeal.
We must first determine the manner in which the
agreement, the policy manual and the pay plan relate
to one another. After reviewing these documents,
23
we
conclude that § 3.2 of the pay plan sets forth the applica-
ble paradigm. It provides that ‘‘[a]ny inconsistencies
between [the town’s] rules and procedures and collec-
tive bargaining agreements shall be read in favor of the
collective
bargaining
agreements.’’
Accordingly,
because any inconsistency, if it exists, must be resolved
in favor of the agreement, we turn first to examine
whether the agreement is applicable to the promotion
at issue and, if so, what requirements it places on that
process. We begin with paragraph D, the only express
clause incorporated into the agreement after the cap-
tain’s position was removed from the unit in 1999.
Although the position of captain, itself, is outside of
the bargaining agreement, paragraph D describes the
promotional process for that position as follows: ‘‘Pro-
motion to the classification of [p]olice [c]aptain shall
be made from bargaining unit employees who are candi-
dates certified to the promotional list.’’ We conclude
that this provision clearly applies and is dispositive of
the issue on appeal. The text of that clause unambigu-
ously sets forth two criteria for promotion to police
captain: (1) the candidate must be a bargaining unit
member; and (2) the candidate must be certified to the
promotional list. No other requirements may be inferred
from that text. Although ‘‘[p]romotional list’’ is not
defined in the agreement, it is defined in § 4.1.19 of the
pay plan, which requires that eligible candidates must
have passed the promotional exam and must have been
approved by the director of human resources. In short,
the town must promote a bargaining unit member who
has passed the promotional exam and has been
approved by the human resources director.
24
Nothing
within the text of paragraph D, which speaks specifi-
cally to promotion to police captain, nor within the text
of § 4.1.19 of the pay plan, which speaks to promotions
in the town generally, mandates that the town promote
the candidate with the highest score. Accordingly, we
conclude that the trial court improperly interpreted the
agreement, and that the town acted within its discretion
in promoting Pacewicz, a bargaining unit employee cer-
Page 10tified to the promotional list, to the position of police
captain.
On appeal, the plaintiff contends that the inclusion
of paragraph D, which, in part, requires the promotion
of a bargaining unit member, keeps the protections of
the past practices clause in place during the promo-
tional process for the captain’s position. As a result,
the plaintiff claims that the past practices clause
requires the town to promote the highest scoring candi-
date. In order to prevail on this claim, the plaintiff must
demonstrate that the past practices clause protects the
practice at issue. At the outset, however, we observe
that, because paragraph D deals specifically with the
subject matter at issue, namely, promotion to police
captain, reliance on past practices is inappropriate. See
F. Elkouri & E. Elkouri, How Arbitration Works (A.
Ruben ed., 6th Ed. 2003) c. 12, pp. 622, 627 (past prac-
tices clause invalid if it nullifies or broadens express
provision; labor law arbitrators refuse to consider evi-
dence of past practices inconsistent with provision that
is clear and unambiguous on its face, citing to numerous
arbitration and federal court cases that express similar
views). To the extent, however, that the dissent is based
on past practices, we address the merits of that
argument.
We begin by setting forth well established principles
of labor law in relation to promotions to positions out-
side the bargaining unit and to the effect of past prac-
tices clauses. Pursuant to these principles, the question
of whether the past practices clause applies turns on
whether the promotional process to a position outside
the bargaining unit constitutes a mandatory or nonman-
datory subject of bargaining.
The question of whether the promotional process
for a position outside the bargaining unit constitutes a
mandatory subject of bargaining is well settled under
federal labor law. West Hartford Education Assn., Inc.
v. DeCourcy, 162 Conn. 566, 578–79, 582–84, 295 A.2d
526 (1972) (relying on interpretations by National Labor
Relations Board because Connecticut statutes dealing
with labor relations closely patterned after National
Labor Relations Act). As one leading treatise observes,
the ‘‘[p]romotion of employees to positions outside the
bargaining unit is not a mandatory subject’’ of bar-
gaining. 1 A.B.A., The Developing Labor Law (J. Higgins
ed., 5th Ed. 2006) c. 16, p. 1301 (citing decisions of
National Labor Relations Board). Moreover, our state
labor relations board also consistently has concluded
that conditions for promotion to nonbargaining unit
supervisory or managerial positions do not constitute
mandatory subjects of bargaining. See In re Bristol,
Conn. Board of Labor Relations Decision No. 1650 (May
24, 1978) (construing General Statutes § 7-474 [g] to
conclude that promotion to position outside bargaining
unit did not constitute mandatory subject of bar-
Page 11gaining); In re New London, Conn. Board of Labor Rela-
tions Decision No. 2479 (April 15, 1986) (same).
25
Although the interpretations of neither our state labor
relations board nor the federal labor relations board is
binding on this court, it is well established that courts
accord great deference to the time-tested construction
given a statute by the agency charged with its enforce-
ment. See, e.g., Office of Consumer Counsel v. Dept. of
Public UtilityControl, 252 Conn.115, 121, 742A.2d 1257
(2000) (government agency’s reasonable, time-tested
interpretation should be accorded great weight by
courts).
The general rule that promotion to a position outside
the bargaining unit is not a mandatory subject of bar-
gaining specifically was applied to the present case. In
denying the grievance filed by the union on the plain-
tiff’s behalf, the state board of mediation and arbitration
(board) concluded that ‘‘[s]ince the promotional pro-
cess for this nonbargaining unit position ([c]aptain)
is outside the mandatory bargaining scope, the subject
matter of the [u]nion’s complaint cannot be reviewed
through the [c]ontractual grievance and arbitration pro-
cess.’’
26
(Emphasis added.) Pursuant to the terms of the
agreement ‘‘[t]he decision of the arbitrator(s) shall be
final and binding on all parties.’’ Because the board was
authorized to resolve this dispute, its decision is beyond
judicial review unless the plaintiff satisfies provisions
set forth pursuant to General Statutes § 52-418. See
O & G/O’Connell Joint Venture v. Chase Family Ltd.
Partnership No. 3, 203 Conn. 133, 153–54, 523 A.2d
1271 (1987). Since the plaintiff has not raised any such
challenges, and the agreement includes a final and bind-
ing arbitration provision, the determination of the board
is binding on the parties. See Stratford v. International
Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn.
108, 131, 728 A.2d 1063 (1999).
The significance of the distinction between manda-
tory versus nonmandatory
27
subjects of bargaining as
it relates to past practices was aptly captured by one
Pennsylvania court: ‘‘To conclude that an employer
must bargain collectively with a bargaining unit over
something that may constitute a past practice but is
not a mandatory subject of collective bargaining would
bind an employer to virtually all practices including
matters of managerial prerogative extant at the time
of negotiating a collective bargaining agreement . . . .
Therefore, we agree with the [state labor relations
board] that it is necessary that a practice, in order
to be preserved, must also be a subject of mandatory
bargaining.’’ South Park v. Labor Relations Board, 789
A.2d 874, 879–80 (Pa. Commw.), appeal denied, 569 Pa.
727,806A.2d864(2002);seealsoStateSystemofHigher
Education v. Assn. of Pennsylvania State College &
University Faculties, 834 A.2d 1235, 1242 n.6 (Pa.
Commw. 2003).
Page 12Our state labor relations board also has addressed
the issue of whether a past practices clause protects
nonmandatory subjects of bargaining. It has concluded
that past practices clauses that protect employees’
‘‘benefits,’’ such as the clause at issue, protect only
mandatory subjects of bargaining. In re Connecticut,
Conn. Board of Labor Relations Decision No. 2662
(August 26, 1988) (‘‘[t]he term ‘benefits’ clearly falls
within the purview of wages, hours and conditions of
employment’’); see also 1 A.B.A., supra, c. 16, p. 1291
(decisions of National Labor Relations Board stating
‘‘benefits’’ relating to wages, hours or conditions of
employment may become mandatory subject of bar-
gaining based on past practice). It is a well settled
proposition of labor law that mandatory subjects of
bargaining are those that relate to wages, hours and
other conditions of employment. See, e.g., West Hart-
ford Education Assn., Inc. v. DeCourcy, supra, 162
Conn. 578–79; Danbury v. International Assn. of Fire-
fighters, Local 801, 221 Conn. 244, 249, 603 A.2d 393
(1992). With these principles in mind, we conclude that
the past practices clause at issue, which preserves only
‘‘benefits’’ enjoyed by the employees, protects only mat-
ters that are related to mandatory subjects of bar-
gaining.
28
In makingthis conclusion, we payparticular attention
to two other provisions within the agreement. First,
article XXIII of the agreement, entitled ‘‘Arbitration and
Grievance Procedure,’’ limits grievances to those con-
cerning ‘‘wages, hours, or conditions of employment,
which wages, hours, or conditions are controlled by
this agreement . . . .’’ It is significant that the
agreement expressly limits grievances to mandatory
subjects of bargaining, as evinced by the reference to
‘‘wages, hours, or conditions of employment,’’ and does
not offer arbitrability of nonmandatory subjects of bar-
gaining.
29
Second, article XXIX of the agreement, enti-
tled ‘‘Management Rights,’’ provides in relevant part
that ‘‘[n]othing contained in this [a]greement shall
reduce by implication any management right . . .
except as abridged or modified by an express provision
of this [a]greement.’’ (Emphasis added.) In order to give
effect to that provision, we must draw a line as to the
scope of the past practices clause. Otherwise, such
clause, unrestricted, could by implication reduce any
and all management rights. We therefore conclude that,
because both of these provisions belie the notion that
the past practices clause governs the nonmandatory
bargaining subject of promotion to police captain, that
clause is unambiguously inapplicable to the promotion
at issue. To conclude otherwise would improperly
enlarge the scope of the agreement. See Hotel & Restau-
rant Employees Alliance, Local No. 237 v. Allegheny
Hotel Co., 374 F. Sup. 1259, 1264–65 (W.D. Pa. 1974)
(court refused to enlarge scope of agreement via past
practices clause for matter that was not term or condi-
Page 13tion of employment).
We also observe that our conclusion leaves intact the
current status of labor law in our state. To conclude
that past practices clauses protect nonmandatory sub-
jects of bargaining, in the absence of express language
to the contrary, would set forth a rule of law that might
have the perverse effect of encouraging municipalities
and other employers to behave erratically with respect
to permissive subjects of bargaining so as not to create
a past practice precedent. That we will not do.
Rather than demonstrate how the past practices
clause incorporates the practice at issue, the dissent
makes a subtle but significant departure from the plain-
tiff’s argument. The dissent pivots away from reliance
on the past practices clause
30
and instead resurrects
the past practice at issue by treating it as a course of
dealing, a tool of construction for ambiguous contract
language, which it then uses to interpret paragraph D.
31
In essence, whereas our contract law requires us to
determine whether an agreement is ambiguous or
unambiguous, the dissent attempts to create a third
category of construction—one in which the agreement
is unambiguous, but only after reference to tools of
construction appropriate only to interpret ambiguous
language.
32
This method of construction, if adopted,
arbitrarily would permit evidence of the parties’ intent,
so long as that evidence was characterized as a past
practice or course of dealing, while prohibiting other
evidence of the parties’ intent which would be permissi-
ble under a more traditional analysis of ambiguous con-
tract language. Not surprisingly, the authority cited by
the dissent does not support this method of construc-
tion and clearly demonstrates that reliance on past prac-
tice is appropriate only in interpreting ambiguous
language.
33
See F. Elkouri & E. Elkouri, supra, c. 12, p.
623 (discussing role of custom and practice in interpre-
tation of ambiguous language); see also Black v. Surface
Transportation Board, 476 F.3d 409, 414 (6th Cir. 2007)
(‘‘[f]aced with an ambiguous provision . . . arbitration
panel properly referred to the past practice of the par-
ties’’); Anheuser-Busch, Inc. v. International Brother-
hood of Teamsters, Local No. 744, 280 F.3d 1133, 1139
(7th Cir. 2002) (‘‘reliance on the law of the shop is
appropriate to interpret ambiguous contract terms’’
[internal quotation marks omitted]). Because the dis-
sent’s interpretation of the agreement is incorrectly
based entirely on this tool of construction, the dissent’s
conclusions are inherently flawed.
Proceeding with this tool of construction, the dissent
bases its ultimate conclusion on an interpretation of
the term ‘‘promotional list’’ independent of that term’s
definition in the pay plan. Contrary to the dissent, both
parties rely on the pay plan’s definition of that term.
Moreover, to supplement the dissent’s independent
interpretation of ‘‘promotional list,’’ it asserts that the
Page 14town’s definition also is consistent with the past prac-
tice of promoting the highest ranked candidate.
34
Because the term ‘‘promotional list’’ applies to all
municipal employees, however, to give that term an
interpretation in light of a past practice within the police
department would improperly extend the reach of
that conclusion.
35
Even assuming that some other language in the
agreement could be construed to govern promotion to
police captain, a careful review of the record reveals
no evidence to support that the town ever engaged in
a past practice where it promoted the highest scoring
candidate who was a member inside the bargaining
unit to a position outside the bargaining unit. Although
the trial court found that for thirty years, the town
routinely had promoted the highest scoring candidate,
that evidence was overwhelmingly limited to circum-
stanceswhereallthe candidatesandthepositionsthem-
selves were inside the bargaining unit.
36
Notably absent
were findings that prior to the 1999 amendments, the
town engaged in a practice of promoting the highest
ranked candidates who were inside the bargaining unit
to a position outside the bargaining unit.
37
Absent such
evidence, there is no support in the record for a past
practice of promoting the highest ranking candidate,
who isstill amember ofthe bargainingunit, toa position
outside the bargaining unit. In effect, the plaintiff and
the dissent ask us to take a proposition that applies to
one scenario, a situation in which both the candidates
and the vacancies are inside the unit, and apply it to a
different scenario, one in which the candidates are
inside the unit, but the vacancy is not. See F. Elkouri &
E. Elkouri, supra, c. 12, p. 610 (‘‘the underlying circum-
stances must be considered to give a [past] practice
its true dimensions’’). We decline to gloss
38
over this
discrepancy given that labor law makes a distinction
between those two postures and that other evidence
thatspokedirectlyto promotionsoutsidethebargaining
unit existed, but was not found by the trial court to be
part of the alleged past practice.
Finally, to the extent that the dissent predicates its
argument on the notion that the town did not expressly
disavow its past practice, such an argument is mis-
placed. In promoting Pacewicz over the plaintiff, the
town has not altered its past practice. As noted, the
evidence at trial established that the town has engaged
in a past practice ofpromoting the highest ranked candi-
date to positions inside the bargaining unit. It is well
established that promotions within the bargaining unit
do constitute mandatory subjects of bargaining. 1
A.B.A., supra, c. 16, pp. 1300–1301. The town has not
sought to disavow itself of that particular practice.
Rather, the town contends that no such practice exists
for promotions to positions outside the bargaining unit.
In sum, absent a demonstration of how the past prac-
Page 15tices clause can preserve a nonmandatory subject of
bargaining or how another agreement provision unam-
biguously supports the contention that the town did in
fact agree to bargain over promoting the highest ranking
candidate to police captain, the plaintiff’s argument
must fail.
II
We next address the town’s claim that the trial court
improperly concluded that the town deprived the plain-
tiff of his property interest without due process of law
in violation of 42 U.S.C. § 1983, by promoting Pacewicz
to police captain even though the plaintiff had received
the highest examination score. The trial court con-
cluded, on the basis of its conclusion that the past
practices clause required the town to promote the high-
est scoring candidate, that the plaintiff had a property
interest in the promotion to the position of police cap-
tain. The trial court determined that the plaintiff’s
‘‘expectation of promotion based upon his rank on the
promotion list rises to the level of a constitutionally
protected property interest.’’ On appeal, the defendants
argue that, because the agreement provides the town
with discretion to hire any candidate certified to the
promotional list, the plaintiff cannot, as a matter of
law, have a constitutionally protected property interest.
We agree.
‘‘Our due process inquiry takes the form of a two
part analysis. [W]e must determine whether [the plain-
tiff] was deprived of a protected interest, and, if so,
what process was . . . due.’’ (Internal quotation marks
omitted.) Giaimo v. New Haven, 257 Conn. 481, 499,
778 A.2d 33 (2001). 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. Hunt
v. Prior, 236 Conn. 421, 442, 673 A.2d 514 (1996).
‘‘To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire
for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitle-
ment to it. It is a purpose of the ancient institution of
property to protect those claims upon which people rely
in their daily lives, reliance that must not be arbitrarily
undermined. It is a purpose of the constitutional right
to a hearing to provide an opportunity for a person to
vindicate those claims.
‘‘Property interests, of course, are not created by
the [c]onstitution. Rather, they are created and their
dimensions are defined by existing rules or understand-
ings that stem from an independent source such as
state law—rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.’’ (Internal quotation marks omitted.) Giaimo
Page 16v. New Haven, supra, 257 Conn. 499, quoting Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L.
Ed. 2d 548 (1972).
In light of our conclusion in part I of this opinion, it
followsthatthe plaintiffdoesnothave aconstitutionally
protected property interest because the town retains
discretion to promote any candidate certified to the
promotional list to the position of police captain. In
order to prevail, the plaintiff was required to establish
that provisions of the town charter, pay plan, policy
manual or the agreement created an entitlement that the
highest ranked candidate automatically be promoted to
police captain. As we have discussed in part I of this
opinion, the plaintiff has failed to do so. Absent a legiti-
mate claim of entitlement to the promotion, the plaintiff
does not have a constitutionally protected property
interest.
Because we conclude that the plaintiff does not have
a constitutionally protected property interest, the trial
court’s award of attorney’s fees to the plaintiff can-
not stand.
III
As an alternate ground for affirmance, the plaintiff
contendsthatthe trialcourtimproperlydenied hisclaim
that the town, Walters and Cava, violated his constitu-
tional right to equal protection of the laws pursuant to
42 U.S.C. § 1983. The plaintiff advances two theories in
support of his claim: (1) that the decision to pass him
over for promotion was driven by a malicious intent to
injure in violation of the test announced in LeClair v.
Saunders, 627 F.2d 606, 609–10 (2d Cir. 1980), cert.
denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383
(1981); and (2) the town did not have a rational basis
to promote Pacewicz over the plaintiff in violation of
the test articulated in Willowbrook v. Olech, 528 U.S.
562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000). We
are not persuaded.
The following additional facts are relevant to our
resolution of this claim. In short, the plaintiff argues
that Walters’ decision to promote Pacewicz to captain
was motivated by bias toward the plaintiff and favorit-
ism toward Pacewicz. To that end, the plaintiff princi-
pally cites two incidents involving Walters and himself,
on which the trial court relied in finding that Walters
harbored some bias against the plaintiff.
39
The first inci-
dent occurred in 1999. On that occasion, the plaintiff
and two other officers successfully grieved low service
ratings given to them by Walters. The second incident
occurred one year later. In that episode, Walters, as
shift commander, denied the plaintiff’s request to swap
shifts with another officer for the following day. The
plaintiff had requested the change in schedule so that
he could accompany his wife to a serious medical
appointment. Subsequent to the denial, the plaintiff con-
Page 17fronted Waltersand twice,in the presenceof thechief of
police, called Walters a ‘‘liar.’’ The trial court ultimately
denied the plaintiff’s claim. In its memorandum of deci-
sion, the trial court concluded that, although Walters
had exhibited some bias against the plaintiff, such con-
duct did not rise to the level of a malicious intent to
injure;rather,the courtfoundthatWalters’ decisionwas
intended primarily to promote Pacewicz as opposed to
injuring the plaintiff.
We turn to the merits of the plaintiff’s claim. As we
have stated, ‘‘[t]he decisions of the federal circuit in
whicha statecourtislocated areentitledto greatweight
in the interpretation of a federal statute. This is particu-
larly true in 42 U.S.C. § 1983 cases, where the federal
statute confers concurrent jurisdiction on the federal
and state courts.’’ (Internal quotation marks omitted.)
Red Maple Properties v. Zoning Commission, 222
Conn. 730, 739 n.7, 610 A.2d 1238 (1992). We, therefore,
look to recent decisions of the United States Court of
Appeals for the Second Circuit for guidance on the
issues presented in the present case. Thomas v. West
Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert.
denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d
99 (2000).
‘‘The [e]qual [p]rotection [c]lause of the [f]ourteenth
[a]mendment to the United States [c]onstitution is
essentially a direction that all persons similarly situated
should be treated alike.’’ (Internal quotation marks
omitted.) Zahra v. Southold, 48 F.3d 674, 683 (2d Cir.
1995). In LeClair, the Second Circuit stated that a viola-
tion of equal protection by selective treatment arises
if: ‘‘(1) the person, compared with others similarly situ-
ated, was selectively treated; and (2) . . . such selec-
tive
treatment
was
based
on
impermissible
considerations such as race, religion, intent to inhibit
or punish the exercise of constitutional rights, or mali-
cious or bad faith intent to injure a person.’’ LeClair
v. Saunders, supra, 627 F.2d 609–10. ‘‘[When a plaintiff]
does not allege selective treatment based upon his race,
religion, or any intentional effort by [the] defendants
to punish him for exercising his constitutional rights,
[the plaintiff] must demonstrate that [the] defendants
maliciously singled [him] out . . . with the intent to
injure him.’’ Crowley v. Courville, 76 F.3d 47, 52–53 (2d
Cir. 1996); see also Thomas v. West Haven, supra, 249
Conn. 393.
40
Pursuant to the foregoing principles, the plaintiff’s
claim must fail. The plaintiff cannot demonstrate that
the defendants maliciously singled him out with an
intent to injure. The trial court found that, at most, the
incidents involving the plaintiff and Walters established
a bias on the part of Walters that did not rise to the
level of malice. Moreover, the mere fact that Walters
promoted Pacewicz instead of the plaintiff is insignifi-
cant. A demonstration of different treatment from per-
Page 18sonssimilarly situated,withoutmore,does notestablish
malice or bad faith. See Zahra v. Southold, supra, 48
F.3d 684 (‘‘evidence suggesting that [plaintiff] was
‘treated differently’ from others does not, in itself, show
malice’’), citing LeClair v. Saunders, supra, 627 F.2d
610–11. Accordingly, we reject the plaintiff’s alternate
ground of affirmance.
The judgment is reversed with respect to the claims
of breach of contract, due process, quo warranto and
mandamus and the case is remanded to the trial court
with direction to render judgment in favor of the defen-
dants on those claims; the judgment is affirmed in all
other respects.
In this opinion NORCOTT and ZARELLA, Js., con-
curred.
1
The Silver Shield Association is the authorized union representing the
uniformed and investigatory personnel in the town police department. It
filed an amicus brief on behalf of the plaintiff.
2
The defendants named in the complaint consisted of the town; its police
chief, James A. Walters; its deputy chief, Pasquale Chila; its human resources
director, Alfred C. Cava; and its candidate promoted to police captain,
Lieutenant Michael A. Pacewicz. At the close of the plaintiff’s case, all counts
against Chila were dropped. We refer to Walters, Cava, Pacewicz and the
town collectively as the defendants and individually by name when appro-
priate.
3
The defendants petitioned this court for certification to appeal pursuant
to General Statutes § 52-265a (a), which permits a direct appeal in an action
that ‘‘involves a matter of substantial public interest and in which delay
may work a substantial injustice . . . .’’ During the pendency of the present
appeal, pursuant to a trial court order, the town has been enjoined from
filling any vacancies for the position of captain or deputy chief and from
reorganizing the police department. Justice Norcott, acting in the absence
of Chief Justice Rogers, granted the defendants’ petition for certification
to appeal.
4
Our resolution of the defendants’ first two claims make it unnecessary
to reach their third claim that the trial court improperly measured damages.
5
Paragraph D of article XXV of the agreement provides: ‘‘Promotion to
the classification of [p]olice [c]aptain shall be made from bargaining unit
employees who are candidates certified to the promotional list.’’
6
The pay plan sets forth rules regarding personnel, salary and administra-
tion and is approved by the town’s board of estimate and taxation and by
the town’s legislative body. The policy manual is approved by the town’s
board of estimate and taxation and by the first selectman and is a guide
for day-to-day administration of the town’s personnel programs to be used
in conjunction with the charter, pay plan and applicable collective bar-
gaining agreements.
7
Section 4.1.19 of the pay plan defines ‘‘[p]romotional [l]ist’’ as: ‘‘A list
of qualified employees who have passed a promotional examination for a
position in the classified service and ranked on the list in the order of the
score received, signed and approved by the Director of Human Resources.’’
8
Honulik and Pacewicz received overall scores of 86.06 percent and 84.85
percent, respectively. The town divided the applicants, on the basis of their
examination scores, into categories ranging from ‘‘Band I-Exceptional’’ to
‘‘Band VI-Very Marginal.’’ Both the plaintiff and Pacewicz were categorized
as ‘‘Band III-Qualified.’’ The three other applicants were categorized as either
‘‘Band IV-Moderately Qualified’’ or ‘‘Band VI-Very Marginal.’’
9
Walters testified that he consulted with Cava to confirm that he could
interview the candidates after the examination.
10
Walters also testified that he confirmed with Cava that he could promote
a candidate out of rank order.
11
The union did not pursue the injunction action after Pacewicz was
promoted, and the action was dismissed for dormancy on June 1, 2007.
12
The past practices clause, set forth in article XXVIII of the agreement
provides in relevant part: ‘‘All benefits and obligations which are not
described in this [a]greement or in either the manual or plan and which are
now enjoyed by or required of the employees are specifically included in
Page 19this [a]greement by reference just as though each such benefit or obligation
was specifically set forth.’’
13
At the close of the plaintiff’s case, the parties stipulated to dismiss all
counts against Pasquale Chila, the town’s deputy chief of police. The trial
court dismissed all counts against Pacewicz except the claim for quo war-
ranto and mandamus, and dismissed the breach of contract and promissory
estoppel claims against Walters and Cava.
14
The plaintiff’s cross appeal claimed that the trial court improperly failed
to increase further the award for the loss of the use of the town vehicle
and to award compensatory and punitive damages pursuant to 42 U.S.C.
§ 1983. Because we conclude that the plaintiff is not entitled to relief in this
case, the plaintiff’s cross appeal must also fail. In addition, Pacewicz cross
appealed with respect to the trial court’s quo warranto and mandamus order.
On January 5, 2009, the plaintiff filed a motion requesting that we dismiss
Pacewicz’ cross appeal on the ground that Pacewicz’ retirement from the
town police department moots his appeal. Pacewicz filed an opposition to
the motion. Because our resolution of this case makes it unnecessary to
decide the cross appeal, we need not reach the issue presented by the
motion to dismiss. Accordingly, we reverse the trial court’s quo warranto
and mandamus relief.
15
The operative dates for the new agreement ran from July 1, 1999, through
June 30, 2004.
16
The sole exception occurred when an officer with the highest examina-
tion score was not promoted because of a pending disciplinary matter.
17
With respect to testimony regarding promotions from lieutenant to cap-
tain, every promotion, except the two simultaneous promotions described
in this opinion, occurred prior to the 1999 amendments.
18
Robbins testified that he did not consult the human resources depart-
ment or the pay plan and policy manual to determine whether he was
required to promote the candidate with the highest assessment score. In
support of its position, the town cites the postassessment letters to DeAngelo
and Ridberg, which state that ‘‘[y]our result places you on the list of candi-
dates eligible for appointment to [police captain]. Under the [r]ules and
[r]egulations of the . . . [p]ay [p]lan, a [d]epartment [h]ead may hire any
candidate certified as eligible by the [h]uman [r]esources [d]epartment.
Your name has been forwarded to the hiring authority for consideration for
appointment to this position.’’ (Emphasis added.)
19
The question of who is eligible for promotion is not in dispute. The
parties concur that paragraph D of the agreement requires that only members
of the bargaining unit certified to the promotional list are eligible.
20
Though perhaps obvious, we ultimately base our assertion on the docu-
ments provided by both parties.
21
In such a case, if town rules and regulations were inconsistent with the
agreement, the agreement would prevail pursuant to § 3.2 of the pay plan,
which provides that ‘‘[a]ny inconsistencies between these rules and proce-
dures and collective bargaining agreements shall be read in favor of the
collective bargaining agreements.’’
22
In such a case, any inconsistency between the town rules and regulations
and the agreement would be irrelevant because neither the candidates nor
the positions are within the bargaining unit. Accordingly, the town rules
govern, unchallenged by provisions of the agreement.
23
Both parties rely on provisions of the town charter, pay plan and policy
manual, and the agreement to support their positions and those documents
refer to one another. See, e.g., Greenwich Personnel Policy and Procedures
Manual § 100 (‘‘[t]he policy manual is intended to supplement and should
be used in conjunction with the [t]own [c]harter, union agreements, [p]olicy
[m]anual, [p]ay [p]lan rules’’); article XXVIII of the agreement (‘‘[a]ll benefits
and obligations which are not described in this [a]greement or in either the
manual or plan . . . are specifically included in this [a]greement’’). We,
therefore, analyze each document.
24
The town’s discretion to select any candidate who has qualified to be
placed on the applicable list makes the process for promotions to police
captain identical to the hiring procedures for the other two positions in the
police department that are outside the bargaining unit.
25
The dissent relies on a decision of the Supreme Court of Michigan to
support its assertion that ‘‘[t]here is not . . . universal consensus’’ as to
whether promotions to positions outside a bargaining unit are nonmandatory
subjects of bargaining. See Local 1383 of International Assn. of Firefighters,
AFL-CIO v. Warren, 411 Mich. 642, 653 n.2, 311 N.W.2d 702 (1981). In that
case, however, the court did not have before it the issue of whether the
Page 20promotional process for a position outside the bargaining unit was a manda-
tory subject of bargaining. The promotional process at issue in Warren was
with regard to positions within the bargaining unit. Id., 649–50. The footnote
to which the dissent cites is dicta, citing with approval a decision of the
Court of Appeals of Michigan, Detroit Police Officers Assn. v. Detroit, 61
Mich. App. 487, 492–94, 233 N.W.2d 49 (1975). Moreover, as the court in
Orlando v. Florida Public Employees Relations Commission, 435 So. 2d
275, 280 (Fla. App. 1983), noted, the Detroit decision, although it does
conclude that the promotional process for positions outside the bargaining
unit is a mandatory subject of bargaining, ‘‘contains little analysis and does
not attempt to distinguish between promotional criteria within the unit and
promotional criteria to positions outside the unit.’’ (Emphasis in original.)
A single, intermediate level appellate decision from another jurisdiction,
from thirty years ago, with little analysis, is not sufficient to call into question
the strong weight of authority supporting the opposite conclusion, namely,
that the promotional process for positions outside a bargaining unit is not
a mandatory subject of bargaining.
26
Prior to this action, the union filed a grievance on behalf of the plaintiff
with the board pursuant to article XXIII (A) (3) of the agreement.
27
For clarity, we recognize that in addition to mandatory and nonmanda-
tory subjects of bargaining, there is a third category: illegal subjects of
bargaining. No authority contends, however, that promotion to a position
outside of a bargaining unit constitutes an illegal subject of bargaining. See,
e.g., 1 A.B.A., supra, c. 16, p. 1393.
28
Neither the trial court nor the dissent analyze the language or contours
of the past practices clause. Both simply take as a given that this particular
past practices clause protects the practice at issue, namely, promotion to
positions outside the bargaining unit. As we have detailed at length in part
I of this opinion, the weight of labor law suggests that such a practice,
which relates to a nonmandatory subject of bargaining, cannot be protected
by the clause as set forth in the agreement. If the clause does not protect
the practice at issue, then, as we argue, the past practices clause has no
relevance, in which case, the plaintiff’s claim cannot stand.
29
In addition to matters concerning wages, hours, or conditions of employ-
ment, unit members may also grieve matters affecting ‘‘health and safety.’’
Accordingly, we conclude that if the agreement intended to expand grievance
protection beyond wages, hours, or conditions of employment—i.e., manda-
tory subjects of bargaining—it could have done so.
30
By pivoting away from the past practices clause, the dissent relieves
itself of the task of demonstrating how that clause protects the practice
at issue.
31
As the agreement makes clear, the purpose of the past practices clause
is to incorporate into the agreement any applicable practice ‘‘just as though
each such benefit or obligation was specifically set forth.’’ Therefore, it is
a wholly different matter to treat a practice not covered by the clause as a
course of dealing to interpret another provision within the agreement.
32
The dissent asserts that after resort to past practice the ‘‘agreement
unambiguously requires the town to continue its past practices for promo-
tions to captain.’’ Indeed, it is difficult to discern whether the dissent con-
strues the agreement to be ambiguous or unambiguous. Although it asserts
that the agreement is unambiguous, the dissent, in addition to its reliance
on tools of construction for ambiguous language, concludes by arguing that
the agreement could also be viewed as ambiguous, and then goes on to
make selective arguments regarding the parties’ intent.
33
The significance of this point was persuasively stated by the United
States Court of Appeals for the Seventh Circuit: ‘‘To place past practice on
a par with the parties’ written agreement would create the anomaly that,
while the parties expend great energy and time in negotiating the details
of the [a]greement, they unknowingly and unintentionally commit them-
selves to unstated and perhaps more important matters which in the future
may be found to have been past practice.’’ (Internal quotation marks omit-
ted.) Anheuser-Busch, Inc. v. International Brotherhood of Teamsters,
Local No. 744, 280 F.3d 1133, 1138–39 (7th Cir. 2002).
34
The dissent places great emphasis on the portion of § 4.1.19 of the pay
plan that provides that candidates will be ‘‘ranked on the list in the order
of the score received’’; see footnote 7 of this opinion; to support its con-
tention that the town must promote the highest ranked candidate. The
dissent, however, is unable to explain why the testimony at trial established
that for the positions of deputy chief and chief of police, the town was free
to promote any candidate certified to the eligibility list, despite the fact
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