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Monday, February 9, 2009

2/9/09 Breaking Greenwich News At The Conneticut Post

The Big Spender Sequence from Sweet Charity
Is Played For Christopher Shays'
Ex-Campgain Manager Michael Sohn
Mike, this is one of the best dance sequences
from one of the greatest choreographers of all time, Bob Fosse



HEY BIG SPENDER: The campaign documents claim that Ex-Christopher Shays Campaign Manager Sohn took about: $83,000 in campaign checks written to himself; $70,000 through more than 100 ATM withdrawals; $16,000 in payroll; $11,000 in Verizon charges; and $11,000 in other unapproved spending, including a ticket to a Red Sox baseball game.

Michael Sohn has been a focus of a criminal investigation into the disappearance of the funds.

Sohn was subpoenaed last month by a grand jury investigating the missing campaign money.

Shays claims ex-campaign manager embezzled $190000
Connecticut Post

By Peter Urban

Posted: 02/09/2009 08:37:01 PM EST

WASHINGTON - In documents expected to be filed Monday night with the Federal Election Commission, former U.S. Rep. Christopher Shays was to detail nearly $190,000 in misappropriated funds that he has accused his former campaign manager of embezzling.

The 11 amended reports cover the 2008 campaign and offer new details into allegations that Michael Sohn of Fairfield took the funds from Shays' campaign over the last two years.....

Sohn has been a focus of a criminal investigation into the disappearance of the funds. He was subpoenaed last month by a grand jury investigating the missing money. ...

....Shays, who raised nearly $3.7 million in the 2008 election cycle, will face a somewhat daunting task of raising an additional $200,000 under the same campaign finance restrictions he faced during the campaign. He cannot raise additional funds from many supporters, who had already contributed the maximum allowed.

Fox estimated that hundreds of man-hours of work have gone into reviewing financial documents so amended reports could be prepared for the FEC. "Our goal is to be totally compliant and responsive to their needs," he said.



UPDATE:

12:41 AM

02/10/09


What The Heck Is Going On At Hearst Newspapers ?????

Peter Urban, who is the Washington Correspondent at Connecticut Post (View full profile), has had is news story about Chris Shay's estranged campaign manager pulled down at the Connecticut Post , the Greenwich Time , NewsTimes.com and the Stamford Advocate.

Was there some inaccuracies or libelous material in the story about former Shays campaign manager Michael Sohn?

Why was the story pulled down soon after it was put up in all the Hearst Newspapers?

At The Greenwich Time The Urban Article Has Been Replaced By An Article From Greenwich Time Reporter Niel Vidgor, but the other Hearst newspapers have nothing on the Chris Shays / Michael Shon story, so far.


Greenwich Time

By Neil Vigdor

Posted: 02/09/2009 10:42:43 PM EST

....Alex V. Hernandez, the Bridgeport lawyer for Sohn, a Fairfield resident, declined to address specific allegations regarding the unauthorized charges.

"It would be inappropriate for me or anyone else to comment at this time regarding this sensitive matter which is presently under investigation," Hernandez said. "The Shays campaign has not shared any information regarding this matter with me or my client. We look forward to receiving and reviewing any available information and responding in the appropriate forum at the appropriate time.".....

...."He's gotten tremendous support and involvement already from the members of his financial committee and close supporters of his campaign who have expressed their willingess to do whatever they can to "¦ honor his 21 years of service in Congress and to help him complete this final election cycle with the same honor and dignity that he conducted the prior campaign," said Michael Fox, a former Shays aide and member of the congressman's finance committee during the most recent campaign..

But Don't Cry For Chris, Because Dick "Mega Bucks" Blumenthal Is Going To Help Save The Day For Shays.....

Attorney General Richard Blumenthal, a Democrat who lives in Greenwich in Shays' old district, said he would consider donating to help the former congressman.

"It's every candidate's worst nightmare to face this very unfortuante situation after such a distinguished and productive congressional career," Blumenthal said.

For More Background Information Please See:


Dec 10, 2008

... The AP is reporting that Michael Sohn, Chris Shays’ campaign manager for the last several elections is the target of suspicions that money ...

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02/9/09 The Raw Greenwich Blog And RSS Feed

Bloggers Who Are From, Work In Or Used To Live In Greenwich ......

Okay, scratch that idea, what’ll we do now? - A reader reports, “Saw Walter at Round Hill tonight. No Alzheimer’s evident. Mrs. is in Palm Beach. Not being very well received I am told. Selling the...

Greenwich Forum
Housing group to protest at executives' homes - 1 Comment, last updated on Monday Feb 9 by mike0023

Tribune Company's Greenwich News Feed
Housing group says it will fight 'financial predators' by protesting at executives' homes - NEW HAVEN, Conn. (AP) — A non-profit housing advocacy group said Monday it will rally at the homes of those it calls "financial predators" — investors and ...


Greenwich Diva
Dr. Michael Kamrava implanted Nadya Suleman with the six embryos - The doctor who was responsible for injecting Nadya Suleman with six embryos was identified as, Dr. Michael Kamrava, from the West Coast IVF Clinic. Suleman...

Jane Genova: Speechwriter - Ghostwriter
Ghostwriters - Take our clients to McDonald's - "I feel we're on the same wavelength." That used to be the ultimate compliment clients could give their ghostwriters. No more. What sells ideas, books, artic...

The Fox Trot By Nick "The Sly" Fox
2009 Pro Bowl Highlights - NFC All-Stars 30 AFC All-Stars 21 Game MVP: Arizona WR Larry Fitzgerald: 5 Catches, 81 Yards, 2 Touchdowns ~F.O.X~

The Daily Spurgeon
Christ is the object our lives - To the true Christian, Christ is the object of his life. As speeds the ship towards the port, so hastes the believer towards the haven of his Savior’s bo...

The Blonde Excuse
Best Yahoo Answers Question Ever - As I'm sure many of you know, Yahoo Answers is the best place to get information of any sort. Basically, you type in ANY question, and then Yahoo users can a...

EDDIE "Greenwich Native" ROSS
Before & After - From Bookshelves to Butler's Pantry - After all the wrapping and boxing of breakables, the packing and unpacking of bins (upon bins, upon bins), we're finally settled into this quietly magical sp...

Greenwich Blog :: The Blog of Greenwich, Connecticut :: USA
Greenwich Library Children’s Vacation Programs - Greenwich Library 101 W. Putnam Avenue Children’s Constellation Room Children’s Program Monday, February 9, 2009 1:30pm-2:15pm Stories, songs and craft pr...

Greenwich Library Today's Events
Baby Lapsit Registration - *When:* Monday February 9th, 2009 - All Day Open enrollment begins January 26 for Baby Lapsit for infants up to 12 months with a caregiver. Five-week...

Greenwich Gossip
On the Charts at Aamazon.com!! - Your scribe is pleased to report that his first novel, *Winning the Lottery: A Tale of Greenwich and London*, is now officially "on the charts" at Amazon.c...


Rock Star Diary
Hawaii Day 1 - Aloha! I'm in a land called Hanalei, like Puff the Magic Dragon. For reals! Jocelyn, Victoria, Dina & Lana on the porch of the house we're staying at. Dina &...

Exit 55 By Rob "WGCH" Adams - The Sports Voice Of Greenwich
A-Roid? - Ass. Fool. Dope. Moron. Way to go, A-Rod. There are two reasons I'm not just blowing this off: 1) He's a member of the New York Yankees now. 2) He's my s...

Cos Cob Blogger Iggy Makarevich At High Strangeness
Fortean Societies Have Existed Before, But… - Hey HS fans! My friend Skylaire Alfvegren's new western US Fortean Society... L.O.W.F.I., or, the League of Western Fortean Intermediatists... has launched o...

Saramerica
Prayers for more than one reason - I was saddened to hear that Supreme Court Justice Ruth Bader Ginsburg is fighting a battle with pancreatic cancer. She is in my thoughts and prayers for a ...

The Harvest From Harvest Time Church On King Street
2009 Women's Retreat Afternoon Session - Ladies, use the top right hand button of the embedded document to view it in full screen mode, or click the iPaper button to print your own copy of the not...

Frank Trotta's Page At Our Greenwich
Who’s Watching Out for Our Kids? - Not much could shock me – or so I thought. I certainly was shocked as a student at the FBI Citizens Academy when in one of the optional exercises some of ...

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2/9/09 Greenwich Post Breaking News; SPLIT DECISION: Three Judges Say Michael Pacewicz Was Not Illegaly Appointed Afterall





Covering the news of Greenwich, Connecticut


Breaking News

In a 3-2 decision, the state Supreme Court has ruled in favor of the town and reversed a Superior Court decision claiming Lt. Gary Honulik was wrongly passed over for promotion.

The decision was released this morning and denied Lt. Honulik’s claims that former Chief of Police James Walters unfairly passed him over when he promoted former Capt. Michael Pacewicz in 2004 despite Lt. Honulik scoring higher on the captian’s examination. Lt. Honulik claimed in his suit that because of personal issues between them, Mr. Walters had promoted Mr. Pacewicz over him by not relying entirely on the exam results and instead using an interview evaluation as part of the decision.


Ultimately, the Supreme Court ruled that Lt. Honulik could not demonstrate that he had been “maliciously singled out” with intent to injure by the town



Read more




WHERE IS THE GREENWICH TIME AND THE GREENWICH CITIZEN ?

UPDATE:

State supreme court rules in favor of town in police promotion suit

By Debra Friedman

...The Supreme Court ruled Monday that the town was correct in their appeal, which asserted that they had the right to appoint any candidate from a promotional list "irrespective of their ranking according to examination score," according to an advanced release opinion posted on the court's Web site.


.....The judgment calls for the case to be remanded to the trial court with the direction to render judgment in favor of the town

HOWEVER THE GREENWICH TIME FAILS TO TELL IT'S READERS.....

Greenwich Police Chief David Ridberg just might not be able to start promoting since the attorney in another suit against the town has asked for a temporary restraining order keeping the town from promoting anyone to the rank of lieutenant or higher.


Sgt. Robert Berry is in a group of five former and current Greenwich officers claiming they were discriminated against by the town and denied the chance for promotion because of their military service.


In a Jan. 3 motion on behalf of Sgt. Berry, attorney Richard Gudis asked for the temporary restraining order to stop any promotions, arguing it would hurt his professional standing if promotions were made before this suit was resolved

========================================================
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02/09/09 CT State Supreme Court Opinion In The Honulik Case, As Decided By 60% Of The Judges





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 3
Kevin M. Greco filed a brief for the Silver Shield
Association as amicus curiae.
Page 4
Opinion
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 5
after 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 6
his 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 7
town 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 8
and 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 9
cannot 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 10
tified 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 11
gaining); 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 12
Our 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 13
tion 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 14
town’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 15
tices 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 16
v. 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 17
fronted 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 18
sonssimilarly 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 19
this [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 20
promotional 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

02/09/09 Here Is What 40% Of The Judges Said In The Honulik Case




HONULIK v. GREENWICH—DISSENT
KATZ, J., with whom, VERTEFEUILLE, J., joins, dis-
senting. The principal issue in this appeal is whether
the trial court properly concluded that the 1999–2004
collective bargaining agreement (agreement) between
the named defendant, the town of Greenwich (town),
1
and the Silver Shield Association, the union represent-
ing the town’s police officers (union), required the can-
didate ranked first on the promotional list to be
promoted to the position of police captain, a position
outside the bargaining unit. The majority concludes that
the provision in the agreement that expressly addresses
such promotions only prescribes the class of persons
eligible for promotions (members of the bargaining
unit), not substantive conditions for making such pro-
motions. It further concludes that the past practices
clause of the agreement has no bearing on the issue
presented because promotions from a position within
the bargaining unit to a position outside the bargaining
unit is a nonmandatory subject of bargaining. As such,
according to the majority, the town was not bound
to adhere to long-standing and well understood past
practices relating to the procedure for promotions to
police captain prior to the removal of that position from
the bargaining unit. In my view, the majority fails to give
full effect to the provision in the agreement addressing
promotions to the position of captain. The terms therein
have a meaning that is informed by past practices, under
which it is clear that the town contractually was obli-
gated to promote the plaintiff, F. Gary Honulik, to the
position of police captain because he was the highest
ranked candidate on the promotional list. Moreover,
the question of whether promotions from a position
within the bargaining unit to one outside the bargaining
unit is a nonmandatory subject of bargaining is irrele-
vant in light of the fact that the agreement expressly
addresses this subject. Accordingly, I would affirm the
trial court’s judgment.
The trial court and the parties have relied, for varying
propositions, on the town’s generally applicable rules,
policies and procedures for employment decisions,
which are set forth in the town’s classification and pay
plan (pay plan) and personnel policy and procedures
manual (policy manual). The parties agree, however,
that the effect of the 1999 amendment to the collective
bargaining agreement is central to this appeal. Indeed,
both the pay plan and policy manual expressly mandate
that the terms of a bargaining agreement will supersede
contrary terms in those town documents. Greenwich
Classification and Pay Plan § 3.2 (‘‘[a]ny inconsistencies
between these rules and procedures and collective bar-
gaining agreements shall be read in favor of the collec-
tive bargaining agreements’’); Greenwich Personnel
Policy and Procedures Manual § 100 (‘‘[t]he policy man-
Page 3
ual 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[r]ules, [f]ed-
eral and [s]tate laws and is not intended to supersede
or overrule such agreements or statutes’’). Therefore,
it is clear that the bargaining agreement has primacy
and must be the starting point of our analysis.
‘‘Itis axiomaticthatacollective bargainingagreement
is a contract.’’ D’Agostino v. Housing Authority, 95
Conn. App. 834, 838, 898 A.2d 228, cert. denied, 280
Conn. 905, 907 A.2d 88 (2006); accord W.R. Grace &
Co. v. Local Union 759, International Union of United
Rubber, Cork, Linoleum & Plastic Workers of America,
461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298
(1983); Poole v. Waterbury, 266 Conn. 68, 87, 831 A.2d
211 (2003). ‘‘A contract must be construed to effectuate
the intent of the parties, which is determined from the
language used interpreted in the light of the situation
of the parties and the circumstances connected with
the transaction.’’ (Emphasis added; internal quotation
marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Part-
nership, 287 Conn. 307, 313, 948 A.2d 318 (2008). ‘‘In
ascertaining intent, we consider not only the language
used in the contract but also the circumstances sur-
rounding the making of the contract, the motives of
the parties and the purposes which they sought to
accomplish.’’ (Emphasis added; internal quotation
marks omitted.) Barnard v. Barnard, 214 Conn. 99,
109–10, 570 A.2d 690 (1990). Thus, a contract’s meaning
is contextual. Cf. Levine v. Advest, Inc., 244 Conn. 732,
753, 714 A.2d 649 (1998) (‘‘[t]he individual clauses of a
contract . . . cannot be construed by taking them out
of context and giving them an interpretation apart from
the contract of which they are a part’’).
To put the provisions of the agreement at issue in
their proper context, it is useful at the outset to state
what is not in dispute. Prior to 1999, the positions of
captain, lieutenant and sergeant were in the bargaining
unit controlled by the agreement between the town and
the union. At that time, the bargaining agreement did
not address promotions expressly but did include a
provision entitled ‘‘Past Practices Clause,’’ which
remained in the agreement after 1999. The past prac-
tices 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 [town police] manual or [pay] plan and which are
nowenjoyedby orrequiredoftheemployees arespecifi-
cally included in this [a]greement by reference just as
though each such benefit or obligation was specifically
set forth.’’ Thus, if promotion on the basis of one’s
rank on the promotional list was a benefit enjoyed by
members of the bargaining unit, that past practice
would be protected under the agreement, even though
the agreement does not expressly address promo-
tional practices.
Page 4
The trial court concluded that promotional practices
within the bargaining unit were a benefit that fell within
the past practices clause; the town does not dispute
this interpretation of the agreement.
2
Thus, prior to
1999, the past practices provision controlled promo-
tions to the positions of sergeant, lieutenant and cap-
tain. The trial court also made the unchallenged factual
finding, overwhelmingly supported by the evidence,
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.’’
3
Indeed, the town’s principal witness, Alfred C. Cava,
director of human resources for the town, conceded in
his testimony before the trial court that, throughout the
extended period in which the town engaged in this
practice, it had acquiesced to the union’s position that
promotion within the bargaining unit of the top ranked
candidate on the promotional list is a past practice
mandated under the agreement.
In 1999, the town and the union agreed to remove
the position of police captain from the bargaining unit.
This change undoubtedly altered the legal rights of per-
sons who already had attained the position of captain.
Once removed from the bargaining unit, the agreement
no longer controlled the wages, hours and conditions
of employment of captains except to the extent that
the parties voluntarily had agreed and provided other-
wise. See Assn. of Civilian Technicians v. Federal
Labor Relations Authority, 353 F.3d 46, 50 (D.C. Cir.
2004); Connecticut Education Assn. v. State Board of
Labor Relations, 5 Conn. App. 253, 271, 498 A.2d 102,
cert. denied, 197 Conn. 814, 499 A.2d 804 (1985). This
appeal turns, however, on whether the agreement, as
amended in 1999, altered the rights of those persons
whose positions are still included within the bar-
gaining unit. Specifically, we must consider whether
the trial court properly construed the agreement as
‘‘call[ing] for the implementation of the procedure of
promoting in rank order from the promotional list’’ for
persons within the bargaining unit, like the plaintiff.
As a result of the parties’ agreement to remove the
position of captain from the bargaining unit, the parties
amended article XXV of the 1999–2004 agreement, enti-
tled ‘‘Conditions of Employment,’’ by adding paragraph
D, which provides: ‘‘Promotion to the classification of
[p]olice [c]aptain shall be made from bargaining unit
employees who are candidates certified to the promo-
tional list.’’
4
(Emphasis added.) It is this provision that
is at the crux of this appeal. The critical question is
whether it evidences an intent to continue the past
practice of promoting the top ranked candidate on the
promotional list or to alter that practice.
5
Specifically,
the question arises as to the meaning of the term ‘‘pro-
motional list.’’ Neither the parties, the trial court nor
Page 5
the majority have concluded that the meaning of this
term is self-evident. The term is not defined in the
agreement, and the agreement does not incorporate by
express reference any documents other than the police
manual. Two sources, however, clarify the meaning of
this term as it affects the resolution of the issue before
us: past practice specific to the police department and
town documents generally applicable to all town
employees.
It is well settled that, even in the absence of an
express past practice clause, past practices properly
may be relied on to illuminate the meaning of a term
or provision of a bargaining agreement. See F. Elkouri &
E. Elkouri, How Arbitration Works (A. Ruben ed., 6th
Ed. 2003) c. 12.1, p. 605 (‘‘[p]roof of custom and past
practice may be introduced . . . to indicate the proper
interpretation of contract language’’); see, e.g., Black v.
Surface Transportation Board, 476 F.3d 409, 414 (6th
Cir. 2007); cf. Anheuser-Busch, Inc. v. International
BrotherhoodofTeamsters,LocalNo.744,280F.3d1133,
1139 (7th Cir.), cert. denied, 537 U.S. 885, 123 S. Ct.
119,154L.Ed.2d144(2002).‘‘Indeed,theparties’course
of performance may be the best evidence of their intent
in using a particular term.’’ Martinsville Nylon Employ-
ees Council Corp. v. National Labor Relations Board,
969 F.2d 1263, 1269 (D.C. Cir. 1992); see also id. (criticiz-
ing cramped interpretation of bargaining agreement by
labor board and administrative law judge that failed to
consider meaning of terms in light of past practice,
especially in light of fact that past practice predated
agreement). As the trial court properly recognized,
although it would be improper to read the agreement
to incorporate past practice if such a reading contra-
dicted the express terms of paragraph D of article XXV
of the agreement; F. Elkouri & E. Elkouri, supra, c.
12.9, pp. 627–28; neither the majority nor the town has
demonstrated that any such conflict arises under the
trial court’s construction.
It is an undisputed fact, both here and before the
trial court, that the long-standing past practice in the
police department was to compile and use promotional
lists in a specific, consistent manner. Promotional lists
were compiled on the basis of a competitive examina-
tion, listing candidates in rank order of their score.
Candidates were selected from the promotional lists
strictly in rank order. Therefore, the term ‘‘promotional
list’’ undoubtedly had a particular meaning ‘‘in the light
of the situation of the parties and the circumstances
connected with the transaction.’’ (Internal quotation
marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Part-
nership, supra, 287 Conn. 313.
Indeed, because promotional lists for sergeant and
lieutenant positions, which are positions within the bar-
gaining unit, undoubtedly continued after 1999 to be
compiled and used in accordance with the past practice
Page 6
of rank order, the use of the term promotional list in
paragraph D of article XXV of the agreement should be
presumed to embody a similar meaning. In other words,
had the parties intended to depart from past practice
of rank order promotion, they presumably would have
usedadifferent termthan‘‘promotionallist’’ orqualified
that term with language indicating that rank order
would not be the sole basis for appointment. For exam-
ple, paragraph D could have provided ‘‘the appointing
authority may select any candidate on the promotional
list, regardless of rank,’’ or ‘‘the appointing authority
may select from the top three ranked candidates on the
promotional list.’’ Compare General Statutes § 5-215a
(‘‘The candidate list certified by the commissioner [of
administrative services] shall contain the final earned
rating of each candidate [for the classified state ser-
vice]. The appointing authority shall fill the vacant posi-
tion by selecting any candidate on the candidate list.’’)
and General Statutes § 7-414 (‘‘Such persons [on the
eligibility list for classified civil service] shall take rank
as candidates upon such register or list in the order of
their relative excellence as determined by test, without
reference to priority of time of test. . . . The board
shall submit to the appointing power for each promo-
tion the names of not more than three applicants having
the highest rating.’’).
6
Turning next to the town’s rules and policies, the
term ‘‘promotional list’’ is defined in the town’s pay
plan and policy manual.
7
A ‘‘promotional list’’ is defined
therein as ‘‘[a] list of qualified employees who have
passed a promotional examination for a position in the
classified service
8
and ranked on the list in the order
of the score received . . . .’’ (Emphasis added.) Green-
wich Classification and Pay Plan § 4.1.19; Greenwich
Personnel Policy and Procedures Manual § 102.
Applying that definition to paragraph D of article XXV
of the agreement, nothing therein would alter, or be
inconsistent with, the meaning of that term as under-
stood in the light of their past practice. Indeed, it
appears to make express the past practice.
9
Prior to
the 1999 amendment of the agreement, the position of
captain had been filled exclusively by persons within
the bargaining unit. Similarly, under that past practice,
bargaining unit members eligible for promotion had
been certified to a promotional list, meaning they had
been ranked high enough, on the basis of a competitive
examination, to be deemed eligible for promotion.
In light of the history of the past practices clause of
the agreement and the language in paragraph D of arti-
cle XXV of the agreement that is entirely consistent with
past practices, I would conclude that the agreement
unambiguously requires the town to continue its past
practices for promotions to captain. Quite simply, the
agreement controls until a bargaining unit member is
promoted to the rank of captain; once appointed to that
position outside the bargaining unit, the agreement no
Page 7
longer controls.
The majority reaches a contrary conclusion on the
basis of two fundamentally flawed propositions relating
to paragraph D of article XXV of the agreement and
the past practices clause. First, it determines that a
noncontextual and selective reading of paragraph D
must apply. The majority reads this provision as if there
was no history between the parties that would have
given particular meaning to the terms they used. It pre-
sumes that the parties were writing on a blank slate
when drafting that provision, unencumbered by and
unaware of the fact that the police department had
used ‘‘promotional lists’’ in a specific manner for many
years—promoting candidates in the order of their rank
onthepromotionallist, withoutexception.Althoughthe
majority faults the dissent for looking to past practice to
illuminate the meaning of paragraph D, it implicitly
acknowledges the ambiguity therein by its resort to the
definitional section of the pay plan. The majority then
determines that this definition renders paragraph D
unambiguous, however, by conveniently omitting from
its analysis the portion of that definition that is consis-
tent with the past practice—’’ranked on the list in order
of the score received . . . .’’ Greenwich Classification
and Pay Plan § 4.1.19; Greenwich Personnel Policy and
Procedures Manual § 102. The majority thereby implic-
itly concludes that this phrase has no meaning, or at
least no intended effect, contrary to the rule that we
do not read contracts to render terms superfluous.
10
See Connecticut Medical Ins. Co. v. Kulikowski, 286
Conn. 1, 12–13, 942 A.2d 334 (2008); American Promo-
tional Events, Inc. v. Blumenthal, 285 Conn. 192, 203,
937 A.2d 1184 (2008).
It defies logic that the parties would have incorpo-
rated a term that had a particular meaning under well
established past practice, which previously was an
implied term of the agreement under the past practice
clause and was defined in the town’s policies in a man-
ner consistent with that practice, if their intent was to
change past practice. If that had been their intention,
it is reasonable to assume that they either would have
provided for a different promotional procedure for cap-
tains than the one previously adhered to (discretion
rather than rank order)
11
or would have expressly disa-
vowed past practice. See, e.g., Truck Drivers Local No.
164 v. Allied Waste Systems, Inc., 512 F.3d 211, 214
(6th Cir. 2008) (citing clause in bargaining agreement
‘‘which [provides] that the terms of the enacted
agreement ‘shall supersede and render ineffective any
past practices, addendum, letters of understanding, oral
or written agreement as may now exist or as may have
existed’ ’’); Michigan Family Resources, Inc. v. Service
Employees International Union Local 517M, 475 F.3d
746,749(6th Cir.)(citingclausein bargainingagreement
providing that ‘‘ ‘[t]here are no past practices which are
binding upon the parties’ ’’), cert. denied,
U.S.
,
Page 8
127S. Ct.2996,168L. Ed.2d704 (2007);GannettRoches-
ter Newspapers v. National Labor Relations Board, 988
F.2d 198, 199 (D.C. Cir. 1993) (citing clause of collective
bargaining agreement providing that contract ‘‘super-
sedes all prior agreements, commitments, and prac-
tices, whether oral or written between the [c]ompany
and the [u]nion, or the [c]ompany and any covered
employee or employees’’ [internal quotation marks
omitted]). The town’s failure to add terms to negate
the past practices clause while expressly reaffirming
procedures consistent with past practice was, in effect,
an agreement to retain the status quo regarding promo-
tions to the rank of captain.
12
To the extent that the town
may have harbored a subjective view of the meaning of
paragraph D of article XXV of the agreement that was
contrary to past practice, I would agree with the trial
court that the town was obligated to make that intention
clear.
13
See Garrison v. Garrison, 190 Conn. 173, 175,
460 A.2d 945 (1983) (‘‘[t]he making of a contract does
not depend upon the secret intention of a party . . .
but upon the intention manifested by his [or her] words
or acts, and on these the other party has a right to
proceed’’ [internal quotation marks omitted]).
Second, the majority concludes that a distinction in
labor law between mandatory and nonmandatory sub-
jects of bargaining is dispostive, when that distinction
has no bearing on the question before this court. The
majority cites cases holding that the subject of promo-
tions within the bargaining unit are mandatory subjects
of bargaining, whereas the subject of promotions from
a position within the bargaining unit to one outside
the bargaining unit is a nonmandatory, or permissive,
subject of bargaining. Accordingly, because promotions
to police captain would have become a nonmandatory
subject of bargaining once that position was removed
from the bargaining unit, the majority posits that the
town could not be compelled to adhere to its past prac-
tices for promotions to police captain. Although I would
agree that the weight of authority, albeit quite limited,
holds that promotions to a position outside the bar-
gaining unit is a nonmandatory subject of bargaining,
14
this distinction is a red herring under the facts of
this case.
It is well established that parties may agree to include
a nonmandatory subject in a bargaining agreement, and,
if they do so, a breach of contract action will lie for a
violation of such a term. See Danbury v. International
Assn. of Firefighters, Local 801, 221 Conn. 244, 253,
603 A.2d 393 (1992) (‘‘The duty to negotiate is limited to
mandatory subjects of bargaining. As to other matters,
however, each party is free to bargain or not to bargain.
. . . To the extent that such permissive bargaining
results in an accord between the parties, their
agreement may be incorporated into a binding contract
. . . .’’ [Internal quotation marks omitted.]); First
National Maintenance Corp. v. National Labor Rela-
Page 9
tions Board, 452 U.S. 666, 675 n.13, 101 S. Ct. 2573, 69
L. Ed. 2d 318 (1981) (parties are free to negotiate in
good faith nonmandatory subject of bargaining but may
not insist on it to point of impasse); Allied Chemical &
Alkali Workers of America v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 187–88, 92 S. Ct. 383, 30 L. Ed. 2d
341 (1971) (‘‘By once bargaining and agreeing on a per-
missive subject, the parties, naturally, do not make the
subject a mandatory topic of future bargaining. . . .
The remedy for a unilateral mid-term modification to
a permissive term lies in an action for breach of contract
. . . not in an unfair-labor-practice proceeding.’’ [Cita-
tion omitted.]); see also Lid Electric, Inc. v. Interna-
tional Brotherhood of Electrical Workers, Local 134,
362 F.3d 940, 943 (7th Cir. 2004) (‘‘Labor law permits
collective bargaining agreements to reach beyond the
certified unit of workers. How employers treat non-unit
workers is a permissive subject of bargaining. Neither
union nor employer is required to negotiate about per-
missive subjects [that is what it means to call them
‘permissive’ rather than ‘mandatory’] . . . but they can
do so when they find it mutually beneficial.’’ [Cita-
tion omitted.]).
Paragraph D of article XXV of the agreement is clear
evidence that the town did bargain on the subject of
promotions to police captain and agreed to included
terms consistent with past practice. Thus, the distinc-
tion that the majority and the town draw between man-
datory and nonmandatory subjects of bargaining as it
bears on whether the town could be compelled to bar-
gain on this matter or could unilaterally alter a past
practice that was not protected expressly in the
agreement is irrelevant. Moreover, neither the majority
nor the town has pointed to any case law that requires
us to eschew basic principles of contract interpretation,
under which we determine the parties’ intent in light of
their situation and the circumstances of the transaction,
when a nonmandatory subject of bargaining has been
included in an agreement.
15
In sum, the parties previously had agreed to include
a past practices clause in the bargaining agreement.
Promotions made strictly on the basis of rank order
on the promotional list had been the established past
practice. The parties thereafter agreed to remove the
position of captain from the bargaining unit, but to add
paragraph D to article XXV of the agreement to address
the procedure for promotions to captain. That para-
graph simply restates the past practice. Indeed, in light
of the numerous ways that the agreement could have
reflected a clear intention to break from past practice,
I question how the majority can fail, at the very least,
to conclude that the agreement is ambiguous as to the
question before us.
16
Therefore, I would determine that
the trial court properly concluded that the town had
breached the contract by failing to promote the plaintiff,
who was ranked first on the promotional list.
Page 10
Accordingly, I respectfully dissent.
17
1
Although the plaintiff, F. Gary Honulik, also named certain town employ-
ees as defendants; see footnote 2 of the majority opinion; all of the defendants
assert the same claims with respect to this appeal, and I refer to them
collectively as the town for purposes of convenience.
2
In its brief to this court, the town relies on labor board decisions that
have held that promotions within the bargaining unit constitute a mandatory
subject of bargaining, whereas promotions from a position within the bar-
gaining unit to one outside the bargaining unit constitute a nonmandatory
subject of bargaining. It then contends that ‘‘[t]he [state labor relations
board], construing ‘benefits’ in a past practices clause, has concluded that
‘benefits’ are mandatory subjects of bargaining. . . . Thus . . . the past
practices clause must be read to apply only to ‘benefits’ that are mandatory
subjects of bargaining. Because promotion to a supervisory position outside
the bargaining unit is a nonmandatory subject of bargaining, it is not a
‘benefit’ preserved by the past practices clause.’’ (Citations omitted.) There-
fore, the town implicitly concedes that the subject of promotions within
the bargaining unit falls within the past practices clause by virtue of its
status as a mandatory subject of bargaining. Despite this uncontested point,
the majority faults the trial court and this dissent for failing to analyze the
contours of the past practices clause and contends that the trial court did
not make an explicit finding that rank order promotion was a ‘‘benefit’’
within the meaning of the past practices clause. Unlike the majority, I think
this connection is implicit in the trial court’s numerous citations to the past
practices clause in its analysis and its repeated findings as to the past
practice of rank order promotion.
3
The lone exception to this practice was a situation in which a top ranked
candidate for a promotion to captain apparently had agreed to be passed
over as part of negotiations to resolve pending disciplinary issues.
4
There was no evidence admitted to explain the textual differences
between the 1999 preliminary agreement and article XXV, paragraph D, of
the 1999–2004 bargaining agreement, but the bargaining agreement controls
the issue in the present case.
5
Because the parties expressly included promotions to captain as a ‘‘condi-
tion of employment’’ in the agreement, there is no need to determine whether,
in the absence of any such express manifestation, the past practices clause
alone would require the town to promote in the rank order of the promo-
tional list.
6
Section 7-414 embodies what is commonly known as the ‘‘rule of three,’’
a practice adopted by many municipalities. See Kelly v. New Haven, 275
Conn. 580, 587 and nn.9 and 10, 881 A.2d 978 (2005) (citing New Haven
city charter and civil service rules); Hartford v. Board of Mediation &
Arbitration, 211 Conn. 7, 10–11, 557 A.2d 1236 (1989) (citing Hartford city
charter and personnel rules and regulations); State ex rel. Barnard v.
Ambrogio, 162 Conn. 491, 495 n.2, 294 A.2d 529 (1972) (citing Haddam
town charter).
7
The term ‘‘promotional list’’ is not actually used in the section of either
the policy manual or the pay plan that encompasses the subject of promo-
tions. The definitions, of course, could not, in and of themselves, prescribe
substantive rights. Cf. 1A J. Sutherland, Statutory Construction (6th Ed.
Singer 2002) § 27.1; Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 70, 689 A.2d
1097 (1997); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn.
341, 342–43, 170 A.2d 883 (1961).
8
A classified position is one filled by way of a competitive examination
process; Greenwich Classification and Pay Plan § 4.1.8; whereas an unclassi-
fied position is excluded from the merit testing policies because of the
nature of the authority and responsibilities exercised. Id., § 4.1.14. Although
the town recently changed the position of police chief to unclassified, during
the period relevant to this appeal, all positions in the police department
were classified.
9
The significance of rank order is underscored in other provisions in the
policy manual, suggesting that rank order may in fact be intended to operate
as a constraint on filling promotions. The policy manual sets forth a proce-
dure for breaking tie scores, and that procedure relates to the merits of the
examination rather than nonmerit based criteria. See Greenwich Personnel
Policy and Procedures Manual § 402.1 (‘‘[w]henever identical grades are
received, such names shall be arranged in order of relative rating given in
the most heavily weighed part of the examination’’). It also requires notifica-
tion to employees of their ‘‘final grade and relative standing on the employ-
ment list . . . immediately after the certification of the employment list to
Page 11
the appointing authority.’’ (Emphasis added.) Id. We need not, in the present
case, however, determine whether the town generally has committed to fill
promotions in rank order. The question before us is the intent of the parties
to the bargaining agreement at issue, specifically, what meaning they
attached to the term ‘‘promotional list.’’
10
The majority gives substantive effect to the part of paragraph D of
article XXV of the agreement that requires candidates to be ‘‘certified’’ to
the promotional list and the counterpart in § 4.1.19 of the pay plan and § 102
of the policy manual that requires a qualified employee to have ‘‘passed a
promotional examination . . . .’’ The majority fails, however, to ascribe any
substantive meaning to, or even acknowledge, the portion of the definition
that requires candidates to be ‘‘ranked on the list in the order of the score
received . . . .’’ Greenwich Classification and Pay Plan § 4.1.19; Greenwich
Personnel Policy and Procedures Manual § 102. Under the majority’s view,
despite the clear meaning that rank order had with respect to promotional
lists in the police department, it would not be a substantive violation of the
agreement for the town to compile a promotional list in alphabetical order
of those candidates who passed the promotional examination.
11
Indeed, testimony suggested that, at some point, the town had amended
paragraph F of article XXV of the agreement to alter past practice with
respect to the timing for certain promotional examinations not pertinent to
this appeal.
12
In its brief to this court, the town contends that, applying the maxim
‘‘inclusio unius est exclusio alterius,’’ we must read the express inclusion
in paragraph D of article XXV of the agreement of who is eligible for promo-
tion as excluding how promotions shall be made. I disagree that this maxim
is applicable. Although that maxim might have some force if this provision
set forth a list of similar or related terms that appeared exclusive, that is
not the case here. See F. Elkouri & E. Elkouri, supra, c. 9.3.A.xi, pp. 467–68
(explaining limitations on application of this doctrine); id., p. 622 (general
clause preserving past practice would not require employer to continue past
practice of designating day before Christmas as paid holiday when contract
specifically listed paid holidays and did not include day before Christmas);
see also Cahill v. Board of Education, 187 Conn. 94, 107, 444 A.2d 907
(1982) (Shea, J., concurring) (‘‘the maxim inclusio unius, exclusio alterius
is merely an aid to construction and not a rule of law having universal appli-
cation’’).
13
In its memorandum of decision, the trial court repeatedly emphasized
that ‘‘the [town] specifically and unequivocally declined to negotiate a spe-
cific provision regarding the manner of testing and selecting a person pro-
moted to the rank of [p]olice [c]aptain; and that therefore, the [agreement]
calls for the implementation of the procedure of promoting in rank order
from the promotional list and not according to the ‘[r]ule of the [l]ist,’ so
called.’’ I note that Cava, director of human resources for the town, offered
the following testimony on the express representations made by the town
during negotiations relating to the change in the status of captains:
‘‘[The Plaintiff’s Counsel]: You did discuss with the union during the time
the captain’s position went out of the bargaining unit, the fact that it was
on the table and discussed, that the impact of that would be that the bar-
gaining unit could no longer negotiate for the wages or the benefits, or
those type of things for the captains, correct?
‘‘[Cava]: Correct. . . .
‘‘[The Town’s Counsel]: You said that you chose not to address the issue
of a promotional process with the union, correct?
‘‘[Cava]: Correct.
‘‘[The Town’s Counsel]: Did the union indicate to you that it wanted to
discuss the promotional process for captains?
‘‘[Cava]: Well, they initially raised a number of those issues. And I chose
not to discuss it with them. That was my initial position. They were outside
the bargaining unit and I wouldn’t have any discussion with them over it.
Subsequently, I learned that their real interest was they were concerned
that the town may go outside of the department and hire outside people
into the position of captain, so we acquiesced and that was never our intent.
And we acquiesced to the language that’s now in the [agreement] that the
promotions would continue to come from within the department.
‘‘[The Town’s Counsel]: So you never specifically discussed the promo-
tional process even though the union had indicated that it wished to do that?
‘‘[Cava]: Never discussed it.’’
14
There is not, however, universal consensus on this question. See Local
1383 of the International Assn. of Fire Fighters v. Warren, 411 Mich. 642,
Page 12
653 n.2, 311 N.W.2d 702 (1981) (‘‘[p]romotions are such an important topic
of employment relations that even promotions out of a bargaining unit are
mandatory subjects [of bargaining]’’); Detroit Police Officers Assn. v.
Detroit, 61 Mich. App. 487, 492–94, 233 N.W.2d 49 (1975) (explaining and
applying principle subsequently cited by Michigan Supreme Court in Local
1383 of the International Assn. of Fire Fighters); see also Manistee v.
Manistee Fire Fighters Assn., Local 645, IAFF, 174 Mich. App. 118, 121–22,
435 N.W.2d 778 (1989) (‘‘What constitutes a mandatory subject is determined
on a case-by-case basis. [Detroit Police Officers Assn. v. Detroit, supra,
490–91]. The test generally applied is whether the matter has a significant
impact upon wages, hours, or other conditions of employment, or settles
an aspect of the employer-employee relationship.’’ [Internal quotation marks
omitted.]). I would not conclude, as it appears the majority has, that promo-
tions from a position within the bargaining unit to one outside the bargaining
unit would be a nonmandatory subject of bargaining in every case. Indeed,
the majority’s deference to two state board decisions reaching such a conclu-
sion on the basis of the rule that we afford deference to ‘‘time tested’’
agency interpretations is puzzling given that: (1) this rule applies to formal
interpretations of statutory terms; see Curry v. Allan S. Goodman, Inc.,
286 Conn. 390, 404, 944 A.2d 925 (2008) (‘‘[w]e traditionally have accorded
deference to the time-tested interpretation of an agency charged with enforc-
ing the provisions of a statute, provided that the agency’s interpretation has
been formally articulated and applied for an extended period of time, and
that interpretation is reasonable’’ [internal quotation marks omitted]); and
(2) this court expressly has rejected two agency decisions as being suffi-
ciently numerous to satisfy that standard. See Vincent v. New Haven, 285
Conn. 778, 784 n.8, 941 A.2d 932 (2008); Christopher R. v. Commissioner
of Mental Retardation, 277 Conn. 594, 603 n.9, 893 A.2d 431 (2006). To the
extent necessary to resolve the issue in the present case, I would assume,
without deciding, that such promotions are a nonmandatory subject of
bargaining because of the posture of this case, in that the plaintiff concedes
in his brief to this court that paragraph D of article XXV of the agreement
addresses a nonmandatory subject of bargaining in order to pursue his
independent breach of contract action.
15
Although a past practice may no longer be binding if the underlying
conditions on which the practice was based have changed; F. Elkouri & E.
Elkouri, supra, c. 12.6, p. 618; that rule would not apply in this case for two
reasons: (1) the past practice has been made an express term of the contract;
id.; and (2) there is no evidence that the status of the position at issue in
the promotion as within or outside of the bargaining unit was a ‘‘condition’’
on which the practice of rank order promotion was instituted and main-
tained.
16
To the extent that one still could view the agreement as ambiguous
after considering the undisputed past practice, the evidence before the
trial court did not reflect that the parties’ conduct subsequent to the 1999
amendment manifested a clear intent to alter the existing practice. Signifi-
cantly, within months after agreeing to remove the position of captain from
the bargaining unit, promotions were made to fill two police captain open-
ings. Peter Robbins, the police chief who filled those promotions, testified
that he believed that he was required to promote in rank order of the
promotional list, as the police department always had done in the past, and
that no one had told him anything to the contrary. As a result, Robbins
promoted the top two ranked persons on the promotional list. It seems
extraordinary that the appropriate town officials never communicated to
Robbins, the appointing authority, that there had been a change in the
promotional process such that he now had complete discretion to hire
anyone on the promotional list. See Jaasma v. Shell Oil Co., 412 F.3d 501,
508 (3d Cir. 2005) (subsequent conduct relevant to construe ambiguity in
agreement); Sure-Trip, Inc. v. Westinghouse Engineering & Instrumenta-
tion Services Division, 47 F.3d 526, 534 (2d Cir. 1995) (same); Federal Ins.
Co. v. Scarsella Bros., Inc., 931 F.2d 599, 603 (9th Cir. 1991) (same). More-
over, the announcement for those positions contained nothing that would
have indicated to eligible officers that the practice regarding the promotional
procedure had changed. The only manifestation to the contrary was in a
letter from the town’s deputy director of human resources, which apparently
was sent to only those two top ranked candidates who thereafter were
promoted. That letter provided in relevant part: ‘‘Under the [r]ules and
[r]egulations of the Greenwich [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
Page 13
appointment to this position.’’ Honulik received a similar, generically
phrased letter in 2003. Under such circumstances, if resort to subsequent
conduct was necessary because the agreement was ambiguous after con-
sulting past practice and applicable town documents, a finding by the trial
court that the ambiguity in the agreement should be read as retaining the
status quo would not be clearly erroneous. See Bristol v. Ocean State Job
Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007) (noting
that, if contract is determined to be ambiguous, finding of intent is factual
question reversed only if clearly erroneous).
17
In light of the urgency to resolve this expedited public interest appeal
as expeditiously as possible, I do not address the remaining arguments
of the parties. See General Statutes § 52-265a (direct appeal on questions
involving public interest authorized in case ‘‘in which delay may work a
substantial injustice’’).

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