Officer Who Resigned Job To Work In Iraq Has No Right To Former Job

Peter Barton was a detective sergeant with the City of Bristol, Connecticut. On July 28, 2004, Barton requested a military leave of absence from the Department so that he could work for DynCorp, a private company that contracts with the United States Department of State to recruit, select, equip and deploy police officers for overseas service. While Barton was waiting for the City’s response to his request for a leave of absence, the president of his labor organization, Local 754 of the American Federation of State, County and Municipal Employees (AFSCME), suggested that Barton resign his position. The president opined that under a Connecticut statute, Barton might be entitled to his former job back upon his return from Iraq. Local 754’s lawyer later reiterated the same advice to Barton.

Barton resigned from his job, believing that Local 754 would likely represent him upon his return from Iraq. Barton also later testified that he would have gone to Iraq even had the Union not given the same assurances.

After Barton’s departure, the City provided retirement benefits to him consisting of a pension, an unused sick leave payout in the amount of $22,386, and health insurance.

Eight months later, at an executive board meeting of Local 754, the Board voted that it would not represent former AFSCME members who were attempting to be reinstated under the Connecticut state law. Barton returned from Iraq in September 2005, and requested that he be reinstated as a detective sergeant. The City refused the request, taking the position that Barton had retired the previous fall.

Barton then sued both the City and Local 754. Barton’s claim against the City was that the state statute obliged the City to reinstate him; his claim against the Union was that he had relied on the Union’s negligent misrepresentations concerning his reinstatement rights.

The Connecticut Supreme Court dismissed both lawsuits. The Court keyed in on the law’s statement that “any sworn police officer employed by the State or a municipality who resigns to volunteer for participation in international peace keeping operations shall be entitled, upon return to the United States, to be reinstated by such officer’s employer to the position of employment held by the officer when a leave commenced.” In the eyes of the Court, the word “resigns” did not include individuals who retired. The Court observed that “the legislative history of the statute indicates that the Legislature was aware that the retirement of municipal police officers is governed by contract and that it had no intention to override those contractual provisions by enacting the statute. Although both ‘resignation’ and ‘retirement’ connote separation from employment, retirement had the additional connotation of concluding or ending employment. If the Legislature had intended to include both meanings in the statute, it easily could have done so.”

As to Barton’s claim against Local 754, the Court focused on the conditional nature of the statements made by Local 754’s lawyer. The Court ruled that “the testimony of both Barton and the lawyer shows that the lawyer merely offered an opinion that the statute applied to Barton’s situation, and the lawyer told Barton that he thought he had a good argument for getting his job back, but it was likely he would have a fight on his hands. This was a statement of opinion and did not constitute negligent misrepresentation.”

Barton v. City of Bristol, 967 A.2d 482 (Conn. 2009).

This article appears in the June 2009 issue