Opinion
No. CV900109026
December 15, 1994
MEMORANDUM OF DECISION
The issue in this case, which was tried to the court, is whether the plaintiff, David A. J. Kohn, who was acting local Fire Marshal in the defendant Town of Wilton, is entitled to certain statutory rights regarding his employment in such position. The plaintiff brought a three count complaint against the town, and the two other defendants, Stephen Lucas, the chairman of the Wilton Fire Commission, and William Von Zehle, Jr., chief of the Wilton fire department. The plaintiff alleges in each count that he was discharged from his position as local fire marshal without the notice and hearing mandated by General Statutes §§ 29-297, 29-299, and 29-300.
General Statutes § 29-297 provides in pertinent part that " [e]ach local fire marshal shall be sworn to the faithful performance of his duties by the clerk of the town . . . and shall continue to serve in that office until removed for cause. . . ." General Statutes § 29-299 provides in pertinent part that "[i]f a local fire marshal fails to faithfully perform the duties of his office, the appointing authority of the municipality in which he is serving shall, after proper inquiry, dismiss him and appoint another in his place. . . ." General Statutes § 29-300 provides in pertinent part that "[n]o local fire marshal shall be dismissed unless he has been given notice in writing of the specific grounds for such dismissal and an opportunity to be heard in his own defense, personally or by counsel, at a public hearing before the authority having the power of dismissal . . ."
The plaintiff and the defendants signed a Joint Stipulation of Facts dated August 5, 1994, and agreed that the only issue for the court is the applicability of the above three statutes to a person who is an acting local fire marshal. This joint stipulation provides in pertinent part that due to the absence of the local fire marshal because of illness, the plaintiff was appointed acting fire marshal on July 7, 1987; that in December, 1987, defendant Von Zehle was appointed as the new fire chief for the town of Wilton; that in the spring of 1988 the fire commission and Von Zehle decided to reorganize the fire department by establishing two new positions, Deputy Chief/Operations and Deputy Chief/Fire Marshal; that these new positions were published and the plaintiff, among others, applied for the position of Deputy Chief/Fire Marshal; that in April, 1989, Richard Gough was appointed to this position, and the plaintiff resumed his position as deputy fire marshal, which he held before he was appointed acting fire marshal.
The plaintiff advances three reasons for his contention that a declaratory judgment should be issued "declaring him to be the Fire Marshal of Wilton, Connecticut" and also that he was entitled to monetary damages. The first claim is that he was never told by the fire commission, or anyone else, that his position as acting fire marshal was only temporary and that he served in that position from July, 1987 to April, 1989. The second reason advanced by plaintiff revolves around General Statutes § 7-302, which affords notice and hearing rights to an active fire chief prior to the termination of his employment. Finally, the plaintiff cites Bartlett v. Krause, 209 Conn. 352, 551 A.2d 710 (1988), as authority for his claim of entitlement to notice and hearing prior to the loss of his position as acting fire marshal.
This statute provides in pertinent part that "[n]o active head of any fire department . . . shall be dismissed unless he has been given notice in writing of the specific grounds for such dismissal and an opportunity to be heard in his own defense, personally or by counsel, at a public hearing before the authority having the power of dismissal. . . ."
It is this court's opinion that none of the three reasons advanced by the plaintiff in support of his claim for a declaratory judgment is persuasive. With respect to the plaintiff's contention that he was not advised of the temporary nature of his employment as acting fire marshal, there was direct evidence to the contrary by defendant Lucas, the chairman of the town's fire commission, which testimony the court finds to be more credible. In addition, the stipulation of facts contains several indications that the plaintiff knew he was only the acting fire marshal, and that it was not a permanent position.
According to the Joint Stipulation of Facts: (1) when the plaintiff accepted the position of acting fire marshal, he signed a written document to that effect which clearly labeled his status as "acting"; (2) when the plaintiff applied for the position of Deputy Chief/Fire Marshal, he indicated on his application that he was the "acting" fire marshal; and (3) that in connection with his job interview for the fire marshal's position, he was referred to as the "acting" fire marshal.
General Statutes § 7-302 applies to fire chiefs, and not to fire marshals. In addition, the statute refers to "active" fire chiefs, not "acting" and the court believes the word active refers to a full-time, working fire chief, and not to someone who is inactive, for example, due to health reasons, or is retired, or who, for whatever reason, is not on full-time active duty. "Acting," on the other hand, appears to connote someone who is a temporary or interim appointee. The defendants make a good point by arguing that if an "acting" appointee must be afforded the same rights as a permanent employee, a municipality would be reluctant to ever appoint an "acting" employee, for such a person's employment, under plaintiff's theory, could not be terminated except upon notice, a hearing, and a finding of probable cause.
In Bedinghaus v. Village of Moscow, 41 Ohio Misc.2d 1, 536 N.E.2d 58 (1987), the plaintiff had been appointed "acting" police chief during the pendency of disciplinary proceedings against the chief of police. "When the new council dropped all charges against Skeen, plaintiff's concurrent employment as police chief was terminated." Id., 62. When plaintiff was serving in an "acting" capacity, it was "with the implicit understanding that it was to continue only during the pendency of the disciplinary charges against former Chief Skeen, and if Skeen was reinstated that plaintiff's role as acting police chief would terminate. Thus, the protections afforded by [Ohio statutes relating to termination of employment for cause] were not due plaintiff in his temporary capacity." Id.
Lastly, the case of Bartlett v. Krause, supra, 209 Conn. 352, is not authority that the plaintiff is entitled to the full panoply of rights due a permanent local fire marshal. That case involves a person who was appointed to the position of fire marshal, but first had to undergo a probationary period of six months. Id., 353 n. 1. The court held that the plaintiff in that case had a "property interest" in her employment as fire marshal which was protected by due process. Id., 366-67. The court further held that the plaintiff was entitled to the statutory protections of notice hearing, and due cause for dismissal, because the appointment was permanent, although subject to a probationary period. Id., 380-81. In the present case, the plaintiff was appointed only to an acting position, and hence does not possess a property interest entitled to due process as in Bartlett.
For the above reasons, the plaintiff's request for a judgment declaring that he is the local fire marshal in Wilton is denied, as is his claim for monetary damages, and judgment is entered in favor of the defendants. Costs are to be taxed by the Clerk of this court.