Attorney General: Honorable John B. Larson, Senate President Pro Tempore, 1992-030 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 5, 1992

Honorable John B. Larson
Senate President Pro Tempore
Legislative Office Bldg., Room 3300
Hartford, CT 06106

Dear Senator Larson:

We are in receipt of your letter dated October 28, 1992, in which you ask, whether, under Conn. Const. Art. III, 11 and Conn. Gen. Stat. 2-5, the so-called "dual job bans," a member-elect of the General Assembly may assume the duties of an appointed position in the legislative branch prior to the completion of his current legislative term. We understand that the Joint Committee on Legislative Management has the authority to make a vacancy appointment to the position of Auditor of Public Accounts pursuant to Conn. Gen. Stat. 2-89 and is contemplating filling the position-with a legislator, currently serving in the General Assembly, who was seeking reelection on November 3, 1992.

In an opinion dated January 5, 1987, this office reviewed Conn. Gen. Stat. 2-5 as amended by P.A. 85-489, 4, and Conn. Const. Article III, 11. In that opinion we concluded that a member-elect of the General Assembly already serving as a member of the General Assembly, might be appointed in the "window-period" between election day and the completion of his current term to a position in the "executive or judicial branches without violating the 2-5 dual job ban. Because of 2-5 and Conn. Const. Art. III, 11, it was further concluded, however, that the legislator could not accept an executive or judicial post until after the "completion of the current term; that is, after the first Wednesday in January of the odd-numbered year.'

The present question, in distinction to the prior opinion, does not deal with the issue of a current legislator's appointment to an executive or judicial position. Instead you inquire whether "such an appointee to a legislative position may accept and hold this position during his current term, so long as he resigns from his current term and so long as he resigns as a member-elect of the General Assembly?

We agree with the analysis contained in your letter. The constitutional dual job ban (Art. III, 11) does not apply to the acceptance of appointments by legislators of positions in the legislative branch. Nor is there a legislator-elect from being appointed to any State office, including Auditor.

As originally enacted in 1951 Conn. Gen. Stat. 2-5 was intended to block any appointment to state office during a current legislator's term. Nor could a legislator resign in order to avoid the strictures of the provision. See discussion at page 2 of our January 5,1987, advice.

As the legislative history indicates, the 1985 amendment was specifically designed to exempt members who have been reelected from these prohibitions during the window period between this election and the beginning of their next legislative term. See House Proceedings, 1985, pp. 5718-5731. Therefore, the member-elect may resign his member-elect status and accept the post of Auditor at any time before he commences his new term in the General Assembly.

In your question you further suggest that, at the time of acceptance, the legislator should resign as well from his current term. In our January 5, 1987, advice, we concluded that a resignation from the current term was ineffective and the Constitution prohibited acceptance until the completion of that term. In the context of this legislative appointment which you are contemplating, however, neither the statutory nor the constitutional bans are applicable. Therefore, the current legislator's resignation is not mandated by the two "dual job bans.'

The resignation from the current term does appear to be required due to an inherent conflict of interest which might exist were the legislator to hold both his current legislative positionand the position of Auditor. See Conn. Gen. Stat. 2-90.

We hope this sufficiently answers your inquiry.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Henry Cohn
Assistant Attorney General

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