Attorney General: The Honorable William J. Cibes, Jr., Secretary-State of Connecticut, 1992-018 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 29, 1992

The Honorable William J. Cibes, Jr.
Secretary-State of Connecticut
Office of Policy and Management
80 Washington Street
Hartford, CT 06106

Dear Secretary Cibes:

This is in response to your request for a formal opinion regarding the question whether municipalities of this state may utilize the services of an independent contractor, such as a collection agency, to aid municipal officials in collecting delinquent taxes.

For the reasons stated below, it is our opinion that municipal tax collectors may appoint independent contractors to assist them in collecting delinquent taxes, but only for the limited purpose of making personal or written demand on delinquent taxpayers under Conn. Gen. Stat. 12-155. We emphasize that an independent contractor should remain subject to the direct supervision and control of the municipal officials who are charged with the statutory duty of tax collection.

I.

Our analysis begins with a survey of relevant provisions of the general statutes.1 The general authority for municipal taxation arises from the legislative grant in Conn. Gen. Stat. 7-148(c)(2)(B). Specifically, municipalities are empowered to

"[a]ssess, levy and collect taxes for general or special purposes on all property, subjects or objects which may be lawfully taxed, and regulate the mode of assessment and collection of taxes and assessments not otherwise provided for[.]"

Conn. Gen. Stat. 7-148(c)(2)(B).

Flowing from this enabling provision is the requirement that "[w]hen any community, authorized to raise money by taxation, lays a tax, it shall appoint a collector thereof [.]" Conn. Gen. Stat. 12-130(a). The powers of a municipal tax collector are described in Conn. Gen. Stat. 12-166, which provides, in pertinent part:

Each collector of taxes2 of each municipality may collect any tax at any time by authority of any present or future legislation providing for the collection of any tax and said collector may Photostat the receipted bills of such collected taxes. Each collector of taxes of each municipality shall, within a reasonable period after each unpaid tax, or the first installment thereof in case installment payments have been authorized, has become due and payable ... proceed to collect such tax as it has been increased by interest, penalties, fees and charges and shall, when collection has been made, pay the same, together with all interest, penalties, fees and charges, to the treasurer of the municipality served by him.

Conn. Gen. Stat. 12-166.

Conn. Gen. Stat. 12-146 defines the point in time at which a tax is considered delinquent3 In relevant part, this statute provides:

... If any tax due in a single installment or if any installment of any tax due in two or more installments is not paid in full (1) on or before the first day of the month next succeeding the month in which it became due and payable, or if not due and payable on the first day of the month, (2) on or before the same date of the next succeeding month corresponding to that of the month on which it became due and payable, the whole or such part of such installment as is unpaid shall thereupon be delinquent and shall be subject to interest from the due date of such delinquent installment ....

Conn. Gen. Stat. 12-146.

Once a tax is delinquent, within the meaning of Conn. Gen. Stat. 12-146, the tax collector has a series of remedies available under the general statutes. He may make a demand and levy for the collection of the delinquent taxes under Conn. Gen. Stat. 12-155:

If any person fails to pay any tax, the collector or his duly appointed agent shall make personal demand of him therefore or leave written demand at his usual place of abode or deposit in some post office a written demand for such tax, postage prepaid, addressed to such person at his last-known place of residence. After demand has been made in the manner above provided, the collector may levy for such tax on any goods and chattels of such person and post and sell them in the manner provided in case of executions; but, if no such goods or chattels belonging to such person can be found after reasonable search by the collector, he may enforce by levy and sale any lien upon real estate for such taxes, or he may levy upon and sell such interest of such person in any real estate as exists at the date of the levy.

Conn. Gen. Stat. 12-155 (emphasis added).

Should demand for delinquent taxes prove fruitless, Conn. Gen. Stat. 12-162 authorizes use of an alias tax warrant:

Any collector of taxes, in the execution of his tax warrants, shall have the same authority as sheriffs have in executing the duties of their office, and may depute in writing any sheriff, deputy sheriff, constable or other officer authorized to serve any civil process to serve a warrant for the collection of any tax assessed, and the officer so deputed shall have the same authority as the collector concerning taxes committed to him for collection. Upon the nonpayment of any property tax when due, demand having been made therefore as prescribed by law for the collection of such tax, an alias tax warrant may be issued by the tax collector ...

Conn. Gen. Stat. 12-162 (emphasis added).

The execution by the tax collector of the original tax warrant (and the alias tax warrant) is addressed in Conn. Gen. Stat. 12-135(a):

Any collector of taxes, and any sheriff, deputy sheriff or constable, as he may be authorized by such collector, shall, during his term of office, have authority to collect any taxes due the municipality served by such collector for which a proper warrant and a proper alias tax warrant, in the case of the deputized officer, have been issued. Such alias tax warrant may be executed by any officer above named in any part of the state, and the collector in person may demand and collect taxes in any part of the state on a proper warrant ....

Conn. Gen. Stat. 12-135(a) (emphasis added).

Having set out the relevant statutory authority, our analysis must now consider pertinent case law.

II

The power to levy taxes in Connecticut is vested in the General Assembly. Kellems v. Brown, 163 Conn. 478, 487, 313 A.2d 53 (1972), appeal dismissed 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1973); Beach v. Bradstreet, 85 Conn. 344, 348, 82 A. 1030 (1912). Subject to constitutional limitations, the legislature can "'choose the subject matter of taxation and ... fix the method and extent of a tax.'" Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 36, 238 A.2d 410 (1968)(quoting First Federal Savings & Loan Ass'n v. Connelly, 142 Conn. 483, 490, 115 A.2d 455 (1955)); see also Lublin v. Brown, 168 Conn. 212, 220, 362 A.2d 769 (1975). A municipality, as a creature of the state, has no inherent power of its own. Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976)(citing State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 198-99, 132 A. 561 (1926)). Similarly, a municipality has no powers of taxation except those expressly granted to it by the legislature. Pepin , 171 Conn. at 83; Consolidated Diesel Electric Corp., 156 Conn. at 37. "For these reasons, a municipality's 'powers of taxation can be lawfully exercised only in strict conformity to the terms by which they were given.'" Pepin, 171 Conn. at 83 (quoting Low Stamford Corp. v. Stamford, 164 Conn. 178, 182, 319 A.2d 369 (1972); Levin-Townsend Computer Corp. v. Hartford, 166 Conn. 405, 408-9, 349 A.2d 853 (1974); Hartford v. Poindexter, 84 Conn. 121, 132, 79 A. 79 (1911).

In the construction of statutes, it is an accepted principle that "[w]hen a statute provides that a thing shall be done in a certain way, it carries with it an implied prohibition against doing that thing a different way." State v. White, 204 Conn. 410, 423-4, 528 A.2d 811 (1987)(citing State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); New Haven v. Whitney, 36 Conn. 373, 375 (1870)); see also Conn. Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (194 ). Further, "[a]n enumeration of powers in a statute is uniformly held to forbid things not enumerated." State ex rel. Morris v. Buckeley, 61 Conn. 287, 367, 23 A. 186 (1892), cited in White, 204 Conn. at 424 and in Kaminsky, 144 Conn. at 620; see also 30 Conn. Op. Atty. Gen. 99, 100 (1957). Municipal officers whose authority is defined by statute or charter have no implied powers except such as are necessary to carry into effect the powers expressly conferred on them. Bridgeport Brass Co. v. Drew, 102 Conn. 206, 214, 128 A. 413 (1925)(citing Turney v. Bridgeport, 55 Conn. 412, 418, 12 A. 520 (1887); Thomas Motor Car Co. v. Seymour, 92 Conn. 412, 414, 103 A. 122 (1918)). Such implied authority may be limited by "express restrictions on such power." Hartford v. American Arbitration Ass'n, 174 Conn. 472, 480, 391 A.2d 137 (1978)(citing Union v. Crawford, 19 Conn. 331, 336 (1848)). Nevertheless, an "administrative practice, particularly that of public officers charged with the enforcement of a statute, may be cogent evidence of the intent manifested in it when its terms are ambiguous or its meaning uncertain." Institute of Living v. Hartford, 133 Conn. 258, 267, 50 A.2d 822 (1946). Yet, "'where the intent clearly appears from the terms of the law, a failure of public officials to carry out its provisions must be attributed, at the least, to a misunderstanding on their part.'" Downer v. Liquor Control Commission , 134 Conn. 555, 561, 59 A.2d 290 (1948)(citing Institute of Living, 133 Conn. at 267; Conzelman v. Bristol, 122 Conn. 218, 223, 188 A. 659 (1936)).

III

In applying the legal principles discussed above to the pertinent statutes, it is our opinion that the municipal tax collector may delegate authority to an independent contractor only with respect to that portion of Conn. Gen. Stat. 12-155 which allows the tax collector "or his duly appointed agent" to make personal or written demand on delinquent taxpayers. Conn. Gen. Stat. 12-155.

Conn. Gen. Stat. 12-135(a) and 12-162 expressly enumerate the persons who may assist the tax collector in the collection of delinquent taxes by use of a warrant and alias tax warrant. Moreover, Conn. Gen. Stat. 12-155 clearly provides that only the tax collector may levy on the goods, chattels and real estate of delinquent taxpayers. The statutes do not authorize the use of a "duly appointed agent" for these aspects of the tax collection process. Consequently, if the demand is unsuccessful and the tax collector must resort to levy under the remainder of Conn. Gen. Stat. 12-155, or an alias tax warrant under Conn. Gen. Stat. 12-162, only those officers expressly named in Conn. Gen. Stat. 12-135(a) and 12-162 may perform these functions.4 See Wilcox v. Madison, 106 Conn. 223, 230, 137 A. 742 (1927). There is no basis to imply that persons other than those expressly named in these statutes may perform these functions. White, 204 Conn. at 424; American Arbitration Ass'n, 174 Conn. at 480; Kaminsky, 144 Conn. at 620; see also Empire Estates, Inc. v. Stamford, 147 Conn. 262, 264, 159 A.2d 812 (1960). This is especially so given that the manner in which delinquent taxes are collected must be exercised in strict conformity with the enabling legislation. See Pepin, 171 Conn. at 83; Low Stamford Corp. , 164 Conn. at 182; Levin-Townsend, 166 Conn. at 409; Poindexter , 84 Conn. at 132; Thames Mfg. Co. v. Lathrop, 7 Conn. 550, 556 (1829). Moreover, the terms of Conn. Gen. Stat. 12-155 and l-162 in this regard are explicit and unambiguous. See Downer, 134 Conn. at 561. Consequently, municipal tax collectors are allowed to utilize independent contractors as duly appointed agents only for the purposes of making personal or written demand on delinquent taxpayers under Conn. Gen. Stat. 12-155.

Analogous cases dealing with the use of independent contractors by municipal tax assessors support the conclusion that the authority exercised by "duly appointed agents" of the tax collector under Conn. Gen. Stat. 12-155 should be carefully defined. Of particular concern is the extent to which the activities of the independent contractor impinge on the decision-making process vested in the statutory officer. See, e.g., Connecticut Coke Co. v. New Haven, 169 Conn. 663, 671, 364 A.2d 178 (1975)(assessors must "review all property and exercise their own independent judgment"); State ex rel. The Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 447, 190 A.2d 591 (1963)(failure of assessor to complete viewing of all properties decennially, as required by Conn. Gen. Stat. 12-62, "constituted a disregard of the mandate of the statute"); Conzelman v. Bristol, 122 Conn. 218, 225, 188 A. 659 (1936)("In using the data and information collected and tabulated by the [independent service] company and following the rules suggested by the company, the assessors did so only in so far as their own judgment dictated that they should"); Cheney v. Essex, 83 Conn. 493, 499, 76 A. 1098 (1910)(decision of the assessors in the case of every piece of property was their own decision ... the assessors, acting independently, valued each piece of property"); Wilson v. Kelly, 7 CSCR 36 (January 6, 1992)(defendant assessor "permitted [independent appraisal firm] to substantially exercise the assessment judgments that ought to have been exercised by her as the statutory assessor"). While an independent contractor may be appointed by a municipal tax collector as his agent to assist with the demand stage of the delinquent tax collection process, these authorities suggest that the contractor must remain subject to the direct supervision and control of the tax collector. Otherwise, the tax collector may be challenged for having abrogated his statutory duties if his independent judgment is supplanted by that of the independent contractor.

IV

Based on the foregoing, it is our opinion that municipalities may utilize independent contractors to assist municipal tax collectors in collecting delinquent taxes, but only for the limited purpose of making personal or written demand on delinquent taxpayers under Conn. Gen. Stat. 12-155.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

John A. Brunjes
Assistant Attorney General

RB/JAB/db


1 Our analysis assumes a valid tax in all respects.

2 "Unless the context otherwise requires," the statute defines "tax" to include

each property tax and each installment and part thereof due to a municipality, as such tax may have been increased by interest, penalties, fees and charges and attorneys, fees, provided such attorneys' fees shall be limited to those ordered by the court in any court action or proceeding brought to recover such tax.

Conn. Gen. Stat. 12-166 (emphasis added).

Other provisions of the general statutes authorize municipal tax collectors to collect other types of delinquent taxes in accordance with any mandatory provision of the general statutes for the collection of property taxes. See eg., Conn. Gen. Stat. 7-254 (municipal sewerage benefit assessments). To the extent other municipal taxation statutes invoke the same delinquent tax collection procedures discussed herein, the analysis and conclusions of this opinion may apply to those statutes with equal force and effect. See Conn. Op. Atty. Gen. No. 84-32 (1984) (opining that alias tax warrant may be employed to collect delinquent sewerage benefit assessments and connection charges).

3 Conn. Gen. Stat. 12-146 employs substantially the same definition of "tax" as does Conn. Gen. Stat. 12-166. Accordingly, see discussion supra at note 2.

4 Conn. Gen. Stat. 12-162 allows the tax collector to depute in writing, in addition to sheriffs, deputy sheriffs and constables, any "other officer authorized to serve any civil process." Conn. Gen. Stat. 12-162. The persons who may serve civil process in this state are enumerated in Conn. Gen. Stat. 52-50. In relevant portion, Conn. Gen. Stat. 52-50 provides:

Persons to whom process shall be directed.

(a) All process shall be directed to a sheriff, his deputy, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person. A direction on the process "to any proper officer" Shall be sufficient to direct the process to a sheriff, deputy sheriff, constable or other proper officer.

(b) Process shall not be directed to an indifferent person unless more defendants than one are named in the process and are described to reside in different counties in the state ...

It is our opinion that an independent contractor, employed by a municipal tax collector to assist him or her in the collection of delinquent taxes, would not be considered "indifferent" within the meaning of Conn. Gen. Stat. 52-50. See 1981 Conn. Op. Atty. Gen. (January 6, 1981).


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