Scalo v. Mandanici
Scalo v. Mandanici
Opinion of the Court
On January 23, 1978, the common council of the city of Bridgeport, pursuant to § 29 of the Bridgeport city charter,
On February 14 and 15, 1978,, the case was tried to the court, which found that the ordinance was not duly and legally enacted in that it had not been approved by the budget authority of the city of Bridgeport, which the court determined to be the city’s board of apportionment and taxation. The trial court, in its memorandum of decision filed on March 23, 1978, ordered that an injunction should issue restraining payment of the salary increases and enjoining the retention of the increases already paid to those officials and employees pursuant to that ordinance. Judgment was rendered accordingly.
Thereafter, on March 28,1978, the board of apportionment and taxation approved the ordinance and adopted a resolution transferring the necessary funds to the budget.
The city continued to pay salaries in accordance with the ordinance, and, upon application of the plaintiffs filed on April 7, 1978, the court issued an order to the defendants to show cause why they
The defendants have appealed from the judgment rendered for the plaintiffs on March 23, 1978, and from the court’s finding of contempt made on April 13, 1978. The plaintiffs have filed a cross appeal from the March 23 judgment and from the court’s order of April 27 terminating the injunction and vacating its order of contempt.
I
Dependants’ Appeal
Preliminarily, we address the defendants’ claim that the court erred in granting injunctive relief. The defendants claim that an essential prerequisite to injunctive relief is a finding by the court of irreparable harm and the lack of an adequate remedy at law. The court did find, however, that the ordinance was not legally enacted and, thus, payment of the salary increments was an unauthorized expenditure of city funds.
Where a municipal act or ordinance is declared invalid, legally ineffective or ultra vires, it is clear
There is little dispute that the unauthorized disbursement of public funds by a municipality presents a situation which can best be remedied by an injunctive order. The payments, if continued, would be irretrievably lost, to the detriment of the plaintiffs and other residents and taxpayers of the city of Bridgeport. The trial court did not err in granting injunctive relief to the plaintiffs.
The defendants next assign error to the order of the court holding the defendants in contempt for failure to retrieve the salary increments paid to the thirty-nine employees, and for continuing to pay the salary increases after the court had rendered its judgment enjoining those payments. The defendants, having filed an appeal within eight days of the rendition of judgment, claim that the effect of the court’s order was stayed pending their appeal to this court.
In light, however, of the court’s order of April 27, 1978, vacating the contempt order, we need not reach this issue. It is well established that courts will not decide questions where there is no actual contro
The defendants also challenge the court’s conclusion that the board of apportionment and taxation is the budget authority of the city of Bridgeport. Section 7-460 of the General Statutes provides that “any municipality or subdivision thereof, through its legislative body, may fix the compensation of its officials and employees, subject to the approval of its budget authority. . . .” The defendants claim that the statute was fully complied with upon approval of the ordinance by the city comptroller. We cannot agree.
In Bridgeport, the board of apportionment and taxation is the only authority with the power to levy taxes and set the final budget appropriations for the city. The comptroller does prepare and submit to the board an estimate of the amounts required by each department of the city government for the coming fiscal year,
II
Plaintiffs’ Appeal
We next reach the issues raised by the plaintiffs on their cross appeal. The plaintiffs claim that: (1) the ordinance is in violation of the constitution of Connecticut, article eleventh, § 2; (2) the board of apportionment and taxation, as the budget authority for the city of Bridgeport, could not give retroactive approval for the implementation of the pay raises; and (3) the purported approval by the board of apportionment and taxation, which was given on March 28, 1978, could not validate the ordinance retroactive to January 24,1978.
The Connecticut constitution, article eleventh, § 2, provides: “Neither the general assembly nor any county, city, borough, town or school district shall have power to pay or grant any extra compensation to any public officer, employee, agent or servant, or increase the compensation of any public officer or employee, to take effect during the continuance in office of any person whose salary might be increased thereby, or increase the pay or compensation of any public contractor above the amount specified in the
The scope and purpose of this provision of the constitution
In Sullivan v. Bridgeport, supra, the court was faced with another aspect of the constitutional problem. In that case the question presented was whether an ordinance increasing the compensation for police officers was valid. It was there urged that such increases offended the constitutional provision under present consideration. Because such officers had been appointed for an indefinite period and
The plaintiffs urge us to distinguish this case from McGovern v. Mitchell, claiming that in McGovern it was members of the judiciary whose salaries were increased during their terms of office and members of the judiciary only “technically” serve for a term. This position is untenable as judges do, as constitutionally provided, serve for a term. Conn. Const., art. 5 § 2. The conclusion of the court in McGovern, that the constitution does not
Lastly, we reach the plaintiffs’ claim that the board of apportionment and taxation could not retroactively approve the salary ordinance. We agree that there could be no retroactive approval of the ordinance, that is, that the board’s approval on March 28, 1978, could not retroactively validate payment of the increases from January 24, 1978, to March 28, 1978. The defendants, in any case, have abandoned any claim for payment of the salary increases between January 24, 1978, and March 28, 1978.
There is no error.
In this opinion Cotter, C. J., Loiselle and Longo, Js., concurred.
Section 29 of the charter of the city of Bridgeport reads as follows: “The Common Council of the City of Bridgeport, by ordinance, shall have the power and authority to determine and change the salaries or other compensation of all officials elective or appointed under the charter of the City of Bridgeport.” 17 Spec. Aets 838, No. 140, § 3.
The increases provided for by the ordinance over the previously existing salary ordinance, enacted December 18, 1975, are itemized as follows:
Mayor $ 14,000
Administrative Aides to Mayor (2) 10,000
Secretary to Mayor 4,168
City Clerk 4,000
Town Clerk 4,000
Assistant to Town Clerk I 965
Assistant to Town Clerk II 1,335
City Treasurer 4,000
Assistant City Treasurer 3,965
*143 Building Official 1,555
City Attorney 3,742
Deputy City Attorney 4,400
Assistant City Attorney 4,503
City Engineer 4.000
Assistant City Engineer 3,355
City Librarian 6,500
Comptroller 7.000
Administrator-Office of Humane Affairs 2,013
Director of Parks 2.142
Director of Welfare 7,253
Director of Public Works 6,540
Deputy Director of Public Works 8.000
Harbormaster 965
Registrar of Voters 753
Deputy Registrar of Voters (2) 460
Assistant Deputy Registrar of Voters (2) 460
Sealer of Weights and Measures 460
Tax Assessor 1.142
Tax Attorney 855
Tax Collector 2.142
Medical Director 1,000
Director of Acute and Chronic Geriatric Care (new position) No information furnished as to previous salary
The defendants were: John C. Norko, comptroller; Raymond C. Lyddy, city clerk; Prank E. Babyeos, treasurer; Michael Mehai, town clerk; and John Moranski, Stephen E. Soraceo, Bernard Katz, Armando P. Goncalves, Anthony R. Innacell, Gregory M. Conte, Richard L. DeJulio, Gilberto Hernandez, Gabriel J. Biafore, Edward E. Lesko, Stanley Arrington, William P. Tyer, Thomas A. Mulligan, Jr., Edmund R. Palumbo, Richard T. Meehan, Jr., Willie Phillips, Thomas V. Caco, Kenneth J. Kelley, Prederiek J. McKenna and Robert A. Swift, Jr., aldermen of the city of Bridgeport.
“[General Statutes] See. 7-460. compensation of officials and employees. Unless otherwise specifically provided in the general statutes, any municipality or subdivision thereof, through its legis* lative body, may fix the compensation of its ofiicials and employees, subject to the approval of its budget authority. Any proposed increase in the compensation of the members of the legislative body of any municipality shall be subject to confirmation by referendum at the next regular election of such municipality. The provisions of this section shall be applicable to any municipality, any provision of any special act to the contrary notwithstanding.”
This is in accordance with § 69 of the Bridgeport city charter, entitled “Powers and duties of the comptroller.” 20 Spec. Acts 247, No. 221, § 3.
The powers of the board of apportionment and taxation are set forth in § 95 of the Bridgeport city charter. 17 Spec. Acts 838, No. 140, § 11.
This provision was amendment twenty-four of the 1818 constitution, whieh was in effect at the time of the McGovern decision.
The conclusion reached by the McGovern court is corroborated by the inclusion in the constitution of a specific prohibition against increasing the salary of the governor and lieutenant governor during their terms in office. Conn. Const., art. á § 7. Substantially similar provisions were contained in the 1818 constitution in article fourth, §4.
This claim was abandoned contingent on our sustaining the trial court’s conclusion that the budget authority of the city is the board of apportionment and taxation. As previously set forth, we have sustained that conclusion.
Dissenting Opinion
(dissenting). For this court to uphold the ordinance granting the instant pay raises is in direct violation of article eleventh, § 2 of our state constitution and contrary to public policy.
It is undisputed that the various defendants are either elected or politically appointed officials of the city of Bridgeport. Article eleventh, § 2 of the constitution of the state of Connecticut provides in clear and unequivocal language that “[n] either the general assembly nor any county, city, borough, town or school district shall have power to . . . increase the compensation of any public officer or employee, to take effect during the continuance in office of any person whose salary might be increased thereby . . . .” (Emphasis added.)
It should be emphasized, however, that article eleventh, § 2 does not prohibit any or all increases in the compensation of public officials and employees but only such increases as are intended to take effect during the current term of office of the officials receiving such increases. To my mind, the requirement of a delay in the effectiveness of a pay increase was clearly intended by the drafters of this constitutional provision to ensure that increases in salary enacted at the taxpayer’s expense would be for the benefit of the office and not for the immediate benefit of the particular individual then holding that office. In this way the drafters sought to ensure that all such salary increases would be made in a properly disinterested manner.
I must therefore dissent.
“Continuance in office” has been held to mean current term of office under one appointment or election. Smith v. Waterbury, 54 Conn. 174, 7 A. 17.
The delegates to the 1965 constitutional convention explicitly retained and incorporated this same provision in the constitution adopted by the convention.
It is conceded that a pay increase such as those at issue here would have been valid if they were limited to an effective date beginning upon the next succeeding term of' office or appointment.
Reference
- Full Case Name
- Richard S. Scalo Et Al. v. John C. Mandanici Et Al.
- Cited By
- 13 cases
- Status
- Published