Attorney General: Honorable Vincent L. Ferrandino, State Department of Education, 1992-033 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 23, 1992

Honorable Vincent L. Ferrandino
Commissioner of Education
State Department of Education
165 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Ferrandino:

Recently you requested an opinion regarding the State Department of Education's obligations in making certain grant awards pursuant to recently enacted legislation. More particularly, you asked: "[c]an the State Department of Education [(the "Department")] legally make a grant award to an organization identified in a fiscal note to the state's budget which is produced by the Office of Fiscal Analysis [("OFA")],)" The Department's Staff Director for Legal and Governmental Affairs subsequently narrowed the inquiry to whether the Department is ""under a legal obligation to make the payments specified in the fiscal notes or whether the fiscal notes are merely directory and authorize (the Department] to make payments in such amount to such persons as are identified in the fiscal notes." We have reviewed your questions in light of the materials you provided to us along with applicable statutory and judicial authority. Our review of these materials leads us to the conclusion that, while the OFA's comments as set forth in fiscal notes might assist the Commissioner in carrying out his statutory responsibility to exercise appropriate discretion in awarding the grants in question, these comments are nor binding on the Commissioner or the Department, nor do They relieve the Commissioner of his obligation to exercise the discretion which has been given to him under the terms of the applicable statutes. accordingly, the Department may not, simply on the basis of the OFA's recommendation, award the amounts to the organizations designated in the fiscal notes. Instead, these organizations must compete for the grant funds in accordance with the applicable statutes.

In making your request for a formal opinion, you advised us of the particular circumstances which gave rise to this issue. During the 1992 legislative session, the General Assembly appropriated $2,504,000 for the Interdistrict Cooperation Program and $200,000 for the Young Parents Program. See Conn. Public Act 91-3 (June Spec. Sess.). You noted that after the General Assembly passed the budget and the Governor signed it into law, the OFA produced a bound version of the budget with accompanying of fiscal notes. The fiscal notes at issue state: [a]dditionally, $40,000 of the amount appropriated to the Interdistrict Cooperation Grant shall be provided to the Student Community Service Program - Common Ground," and "[a]s in prior years, $35,000 of the amount appropriated for the Young Parents Program is to be used for the Bridge Programs 'Looking In,' Project. You further noted that "[t]he only place where these instructions appear are in the fiscal notes to the state budget. The state legislation does not identify these organizations as grant recipients."

The General .assembly defines the spending authority of Connecticut's various agencies by means of the annual Appropriations Acts. See, eg., Conn. Public Act 91-3 (June Spec. Sess.). Within each specific appropriation, an agency may be constrained in making expenditures from the appropriation under the terms of existing statutory grant programs. This is true for the two programs at issue in your inquiry. Section 10-74d(a) of the Connecticut General Statutes establishes a "competitive grant program for the purpose of assisting local and regional boards of education with the establishment of interdistrict cooperative programs." Section 10-74d(b) calls for the submission of grant applications and provides the Commissioner with discretion to approve such applications and award appropriated grant funds upon consideration of three (3) statutorily specified criteria. Similarly, Conn. Gen. Stat. 10-74c(a) establishes a competitive grant scheme whereby the Department is required to "establish a young parents grant program in each year in which funds are appropriated...." Section 10-74c(b) requires the Commissioner to solicit grant applications and then gives him discretion to award grants in accordance with six (6) statutorily specified criteria.

The directions set forth in the OFA's fiscal notes appear to be at odds with the grant award procedures specifically mandated by Conn. Gen. Stat. 10-74d grants for interdistrict cooperative programs) and 10-74c (Grants for young parents programs). In effect, the OFA's comments give preference in awarding certain appropriated sums to designated organizations without those organizations having to go through the grant application process. Moreover, the OFA's comments suggest that the Commissioner cannot exercise the discretion in awarding such grants which is given to him by law. Your inquiry therefore boils down to whether the OFA has authority to direct the application of appropriated funds despite the existence of a statutorily prescribed scheme for doing so.

In 1969, the General Assembly created the OFA,, a non-partisan research and advisory body. The OFA's duties include ascertaining the fiscal impact of bills and, "in any case where [a] bill, if passed, would require the expenditure of state or municipal funds or affect state or municipal revenue, a fiscal note, including an estimate of the cost or of the revenue impact shall be appended thereto." Conn. Gen. Stat. 2-24. See also Conn. Gen. Stat. 2-71c(b) (Offices of legislative research and fiscal analysis). Nothing in the legislation creating the OFA or describing its duties grants the OFA authority to prescribe the disposition of funds appropriated by the General Assembly. Similarly, the legislative history of these statutes reveals no evidence of an intent to grant such authority. One commentator has observed that the OFA's fiscal notes may best serve an informative purpose:

Because these fiscal notes are printed on the file copy of the bill - the version of the bill upon which the legislature actually votes,1 - there appears to be no sound reason why resort to a fiscal statement should not be used as a legislative-intent aid. It may perhaps be a rare situation where a knowledge of the anticipated fiscal impact of a bill will help in understanding legislative intent in passing the bill, but where it can help, it should be used. The fiscal note is prepared by nonpartisan professional staff and is actually, as well as officially, in front of each legislator at the time he or she votes on a bill.

O'Connor, D., The Use of Connecticut Legislative History in Statutory Construction, 58 Conn. Bar J. 422, 435 (1984).

Bearing in mind the statutorily prescribed function of the OFA, and the Connecticut Supreme Court's oft-repeated maxim that "in the interpretation of statutes, the intent of the legislature is to be found not in what it meant to say, but in what it did say," State v. Smith, 194 Conn. 213, 222 (1984); Wiegand v. Heffernan, 170 Conn. 567 (1976); Colli v. Real Estate Comm'n, 169 Conn. 445 (1975 ), we conclude that the legislature intended the grants at issue to be awarded in accordance with the applicable statutorily prescribed schemes. If the legislature had intended to take away the Commissioner's discretion in awarding grants for interdistrict cooperation and the young parents program, it could have done so, but it did not. The OFA is without authority to supersede the mandated grant award schemes set forth in Conn. Gen. Stat. 10-74d and 10-74e.

You mention in your inquiry that the Department "finds these organizations to be worthy organizations and indeed would like to make the designated grants to these organizations in the identified amounts. While the Department may not do so simply on the basis of OFA's fiscal note directives, the Commissioner certainly may take those notes into

We note that your revised request for this advisory opinion implies that the OFA's fiscal notes may not have been appended to the 1992 Appropriation Act until after it was passed by the General Assembly and signed by the Governor. If this is so, the weight to be accorded these notes, if any, would be accordingly diminished account in reviewing grant applications from these organizations. If the respective organizations meet the specified criteria set forth in Conn. Gen. Stat. 10-74d and 10-74c, then the Commissioner has discretion, but is not required, to award grants to these organizations.

In summary, the Department is under no legal obligation to make the grant awards specified in the OFA's fiscal notes in question. Rather, such grant awards must be made in accordance with the applicable statutory grant schemes The Department may, however, make the grant awards as provided for in the OFA's fiscal notes provided that the Commissioner, in his discretion and reviewing the respective organizations, grant applications in light of the statutory criteria set forth in Conn. Gen. Stat. 10-74d and 10-74c, determines such organizations to be worthy of such awards.

If we can provide any additional guidance regarding this matter,

please don't hesitate to contact us.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Martha M. Watts
Assistant Attorney General

RB/MMW/ac
CC: Mark Stapleton, Esq.


1 We note that your revised request forthis advisry opinion implies that the OFA's fiscal notes may nothave been appended tothe 1992 Appropiration Act until after it was passed bythe General Assembly and signed by the Governor. If this is so, the wieght to be accrded these notes, if any, would be accordingly diminished.


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