Attorney General: Representative Edward C. Krawiecki, Jr., House of Representatives, 1991-033 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 4, 1991

Representative Edward C. Krawiecki, Jr.
House of Representatives
State Capitol
Hartford, CT 06106

Dear Representative Krawiecki:

This is in reply to your September 17, 1991 letter, renewing your earlier request for an opinion on August 9, 1991. In that letter, you asked "whether the Governor may act, through executive order, to appropriate and expend state monies by authorizing the continuation of government operations."

This question arises in the context of the 1991 State budget crisis, when the State went for over 50 days (from July 1 to August 22, 1991) without a permanent appropriations law. Temporary appropriations measures ( e.g. 1991 Conn. Sp. Acts No.91-5) were passed instead, until a permanent budget was enacted on August 22, 1991 (1991 Conn. Pub. Acts 91-3). See Conn. Senate Journal, August 29, 1991.

In Executive Order No. Five, dated August 4, 1991, the Governor stated that the General Assembly that day had adopted an appropriations and revenue bill for the state fiscal year ending June 30, 1992. Emergency Certified Senate Bill 2005, June 1991 Special Session. He further noted that the legislature had failed to authorize state expenditures for the period between August 5, 1991 and the period in which part or all of the legislation would become effective (in the event that he approved it). The order referred to the five calendar days he had to act on the legislation under Art. Fourth, Sec. 15 of the Connecticut Constitution, as well as his power of disapproval under Art. Fourth, Se, 16.

If the Governor took the time he was allowed under the Constitution to act on the bill and then exercised his right to disapprove it, the bill itself would not have authorized state spending in the interim.

The Governor in the executive order found that an emergency existed because of this (Executive Order No. 5, p.2, no. 1). He further found: "That the emergency poses a direct and imminent risk of harm to the preservation of order, the administration of justice and the protection of the public health and property, these being the fundamental purpose of government." Id. no.2. The Governor directed that the Executive branch limit expenditures to minimum and essential levels. Id., no.3.

He also declared: "That the sound and orderly management of the people's business dictates that any disruption of services due to the failure of the General Assembly to appropriate for expenditures during the budget lapse period be minimized and that state services be provided on a predictable, regular and established schedule." Id., 4. He therefore ordered that state personnel who would normally work during this period report for service at their usual duty station at their normal hours. Id., pp. 2-3, no.5.

Finally, the Governor "authorized to be expended from the treasury such sums as may be necessary to carry out this order, not to exceed totals appropriated by Public Act 91-4 of the June 5 Special Session of the General Assembly, less amounts there from expended or obligated to date." Id. , p.3, no.6. The Governor returned Emergency Certified Senate Bill 2005 without his approval to the General Assembly on August 7, 1991. Conn. House and Senate Journals, August 8, 1991. The bill thus did not become law.

The legislature them passed a temporary appropriations measure for the August 5- August 18, 1991 period on August 8, 1991. Spec. Act 91-5, June 1991 Spec. Sess. (Sen. Bill 2006). The Governor approved it the next day. That apparently is the act referred to in your letter, p.1, 2d .

The basic question you ask, whether the Governor may, without a specific appropriations act, "appropriate and expend" State funds by authorizing government operations to continue is answered by our June 7, 1991 opinion to the Ho. John B. Larson, President Pro Tempore of the Senate, and the Hon. Cornelius O'Leary, Senate Majority Leader (copy enclosed).

In our June 7, 1991 opinion, based largely on the Connecticut Supreme Court's decision in State v. Staub, 61 Conn. 553 (1982), we stated that, notwithstanding the absence of a specific budget law: (1) Essential services of the state must continue and; (2) costs associated with statutory duties imposed o State officials or costs required to be incurred by statute should also be paid. 91 Conn. Op. Atty. Gen. (6/7/91), p.7.

In Staub, the court stated:

It must be remembered that under our system, unlike that of many states, no special appropriations are required; the authorizing and expenditure is in itself an appropriation of money for that purpose; for the mere purpose of authorizing the application of state funds to the payment of authorized expenditures, a special appropriation is a work of supererogation. I n the absence of a special appropriation the existence of a law requiring an expenditure to be incurred is an appropriation of money for that purpose, and the law imposes on the comptroller the duty of settling and adjusting demands against the state for such expenses.

61 Conn. at 563 (emphasis added). Thus, as a matter of law, it is not the Governor who appropriates State monies. It is the legislature which has already done this by authorizing expenditures through various statutes.

For example, there are statutes requiring State personnel to be paid (Conn. Gen. Stat. 3-119) and authorizing State aid in specific amounts or formulas (see, e.g., Conn. Gen. Stat. 12-24e, State grants for municipalities; Conn. Gen. Stat. 10-262h and 10-262i, equalization aid for education and grants for school purposes only; Conn. Gen. Stat. 31-228, 31-229, and 31-231a, unemployment compensation, which in turn may be based at least in part on federal funds).

There are also laws authorizing or mandating the State to perform various duties (e.g., Art. Fifth, Conn. Const., concerning the judicial power of the State; 29-2 and 29-7, setting forth the responsibilities of the Commissioner of Public Safety and the Division of State Police; 19-5 prescribing the powers and duties of the Commissioner of Health Services; Conn. Gen. Stat. 10a-127, relating to the operation of hospital facilities, clinics and programs; in this respect, see also Conn. Gen. Stat. 10a-102 104 et seq. and 10a-126 et seq.; Conn. Gen. Stat. 17a-3 and 6, providing for the powers and duties of the Department of Children and Youth Services and its Commissioner; Art.. Eighth, Conn. Const., requiring free public elementary and secondary schools and a State system of higher education, including the University of Connecticut. These are but a few examples of the comprehensive responsibilities of the State imposed by law.

Because such State laws in effect require expenditures, they are deemed to be appropriations in the absence of a duly enacted budget under State v. Staub, supra. This principle was recently reaffirmed by the State Supreme Court in Pellegrino v. O'Neill, 193 Conn. 670, 676 (1984), appeal dismissed, cert. den., 469 U.S. 875 (1984), as stated in our June 7, 1991 opinion. The Governor thus had authority to expend monies to fulfill the requirements imposed by such statutes.

As the chief executive officer of the State, the Governor has the authority to ensure that the Executive Branch carries out its lawful duties. That is what he did in Executive Order No. Five. The Constitution vests the supreme executive power of the State in the Governor. Art. Fourth, 5, Conn. Const., see also id., 9. The General Assembly has recognized this and has also recognized that he may "take any proper action concerning, any matter involving the enforcement of the laws of the state and the protection of its citizens," Conn. Gen. Stat. 3-1. Of course, the proper action which the Governor may take cannot violate the law. The Executive Order, however, only authorized department heads "to perform all otherwise lawful acts . . . ." Order, p.3, 7 (emphasis added).

There is also some constitutional basis for continuing the operations of the state government during the absence of a budget. The Constitution of Connecticut divides the powers of government into three distinct departments, legislative, executive, and judicial. Art. Second. It contemplates that these governmental branches will carry on and endure. The Court in Staub recognized: "Many of these duties [imposed on the State by law] are not imposed by statute, but their performance is demanded by the constitution and is of necessity involved in t he existence of a government." 61 Conn. at 565.

The Court further stated:

If the latter of these provisions, (that is, the special appropriation act,) is binding under existing circumstances, then the law is the equivalent of a law providing that for an indefinite period the officers charged with the maintenance of the state government shall not perform the duties imposed on them by law; courts shall not be held; persons charged with crime shall be refused a trial prisoners in the state prison shall be released or starved; the property of the state shall be abandoned, uncared for and unprotected. Such a law is obnoxious to certain plain provisions of the constitution, as well as to a fundamental principle underlying all government. It would seem to be beyond the power of the legislature to pass.

Id. at 562-63. Accord, Pellegrino v. O'Neill , 193 Conn. 670, 676 (1984). Of course, when the legislature does exercise its appropriations power by passing a budget, it has broad discretion in setting funding levels for particular programs, subject only to constitutional limitations including those of the separation of powers. See Eilson v. Parker, 179 Conn. 552, 560-62 (1980). In the question before us, however, there was no effective budget.

We therefore conclude that the Governor acted lawfully in ordering the continuation of governmental operations in this case.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Daniel R. Schafer
Assistant Attorney General

RB/DRS/va


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