Attorney General: The Honorable William E. Curry, Jr., Comptroller-State of Connecticut, 1992-035 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 21, 1992

The Honorable William E. Curry, Jr.
Comptroller-State of Connecticut
55 Elm Street-1st Floor
Hartford, CT 06106

Dear Comptroller Curry:

This letter is in response to your memorandum of August 4, 1992, in which you requested our opinion concerning the meaning and enforcement of Conn. Gen. Stat. 3-112.

We understand from the correspondence which you provided with your memorandum that you have requested information and documentation from the Department of Revenue Services ("DRS") concerning the agency's processing of state income tax refunds. In particular, you have requested information concerning the numbers of refunds processed, when they were processed, how they were processed and the estimated number of refunds still pending. You have also inquired into possible reasons for any delays including any instructions which the agency may have given or received to delay the refund process or to separate refunds based on their face amount, and any hardware or software problems which may have occurred.

The Commissioner of Revenue Services has responded to your request by providing certain documents and information, and noting that some of the other documents are already in your possession or will take time to assemble. In letters to the Commissioner dated July 20, 1992 and July 27, 1992, you indicated that you felt the Commissioner's answers to some of your questions were inadequate and that you intended to exercise your right under Conn. Gen. Stat. 3-112 to inspect all records relating to the administration of tax refunds at DRS. In response the Commissioner stated that representatives from your office were welcome to examine DRS records. The Commissioner, however, would not honor your representative's requests for "job descriptions, staffing level lists and time/motion studies or estimates." The Commissioner also questioned the extend of your authority to examine DRS records, stating that "the Comprtoller must at some point fie way to the constitutional responsibilitiles of this departmetn [DRS], as an arm of the executvie branch and our statutory madate to adminsiter thetax laws." Letter of July 31, 1992 from Commissioner Crystal to Comprtoller Curry. In an effort to resolve this conflict, you have requested our opinion.

You have asked us to address the following questions:

  1. Does an earlier opinion by the Attorney General's Office (1991 Conn. Op. Atty.. Gen. (12/10/91) (Letter to the Comptroller and Secretary of the Office of Policy and Management ("OPM")) govern the instant circumstances, notwithstanding DRS's claim that unspecified executive duties and confidentiality concerns limit the Comptroller's access to the requested items under the statute? Is the basic test whether the material requested is "financial in nature"?

  2. What constitutes satisfaction or satisfactory performance for enforcement purposes?

  3. At what point does a public official expose himself or herself to personal liability for violation of Conn., Gen. . Stat. 3-112?

  4. What legal remedies are available to enforce compliance with Conn. Gen. Stat. 3-112? How are they limited? Are there justiciability problems?

We conclude that the prior opinion issued by this office on December 10, 1991 concerning Conn. Gen. Stat. 3-112 governs the current situation. The Comptroller may require reports on matters of finance from any state agency, including DRS, and has a legal right to inspect any agency's records, as reasonable for the performance of his duties as Comptroller, including DRS financial records. The Comptroller's right to inspect DRS records, however, is limited by the Commissioner of Revenue Services' duty under Conn. Gen. Stat. 12-15 to keep tax returns and tax return information confidential. Other than the limitations on disclosure of tax return information contained in Conn. Gen. Stat. 12-15, we find nothing in the constitutional or statutory authority of the Commissioner of Revenue Services which limits the authority of the Comptroller under Section 3-112 in this particular case.

We further conclude that if the Commissioner opens his agency's financial records to inspection and produces the reports requested by the Comptroller, then he has complied with the mandatory requirements of Conn. Gen. Stat. 3-112. The Commissioner is not required, however, to disclose any information which he is prohibited from disclosing under Conn. Gen. Stat. 12-15. With regard to personal liability, we conclude that there is no cause of action for damages under Conn. Gen. Stat. 3-112. Thus a public official could not be held personally liable for any violation of the statute.

Finally, we conclude that although there are no specific statutory remedies for violation of Conn. Gen. Stat. 3-112, a writ of mandamus would be an appropriate remedy. It is limited, however, to enforcing ministerial duties as opposed to discretionary duties.

I.

In an earlier opinion issued by this office, 1991 Conn. Op. Atty. Gen. (12/10/91) (Letter to the Comptroller and Secretary of OPM), we considered the meaning of Conn. Gen. Stat. 3-112. As we noted in that opinion, the Connecticut constitution grants the Comptroller the general power to adjust and settle all public accounts and demands and to prescribe the mode of keeping and rendering all public accounts. In addition, the constitution states that "[t]he general assembly may assign to him other duties in relation to his office ... and shall prescribe the manner in which his duties shall be performed." Conn. Const. Art. 4, 24. These other duties are generally set forth in Chapter 34 of the General Statutes, Conn. Gen. Stat. 3-111 et. seq.

Conn. Gen. Stat. 3-112 describes the powers and duties of the Comptroller. It provides in part that:

The comptroller may require reports from any department, agency or institution as aforesaid upon any matter of property or finance at any time and under such regulations as the comptroller prescribes and shall require special reports upon request of the governor, and the information contained in such special reports shall be transmitted by him to the governor. All records, books and papers in any public office shall at all reasonable times be open to inspection by the comptroller.

In our prior opinion, we stated that "the language of this statute [Conn. Gen. State. 3-112] is clear and unambiguous. All state agencies and institutions are under a legal duty to supply the comptroller with reports that he may request on 'any matter of finance"'. 1991 Conn. Op. Atty. Gen. (12/10/91). We concluded that the term "finance" included revenue and expense forecasts and projections produced by OPM and that the Comptroller had a right to request these reports under Section 3-112. We further concluded that the Comptroller had a legal right to inspect certain records, books and papers produced and retained by OPM. Although we noted that the Comprtroller's request for information had to be "'reasonably neccessary for performance of the duties' of the Comptroller 'as established by law,'" id. at 8, quoting Commission on Human Rights and Opportunities v. Sullivan, 35 Conn. Sup. 565, 570, 398 A.2d 776 (1978), we concluded that the records requested would assist the Comptroller in carrying out his statutory responsibilities. Lastly, we concluded that the Comptroller's authority to require reports under Section 3-112 was not dependent upon the adoption of regulations concerning these reports.

We find nothing in the law to alter the conclusions reached in our prior opinion. Thus, the analysis applied in that situation also applies in this case. All state agencies are under a legal duty to supply the Comptroller with reports which he may request on any matter of finance. The basic question is whether the reports sought by the Comptroller concerning the state tax refund process concern matters of finance. If so, the Commissioner of Revenue Services must produce the reports. In addition, the Comptroller has a legal right under Section 3-112 to inspect records, books and papers in any public office. This includes the office of DRS. As is discussed below, however, the Comptroller's right to inspect does not extend to any tax returns or tax return information which the Commissioner of Revenue Services is not permitted to disclose under Conn. Gen. Stat. 12-15. His right to inspect is also limited to information which is reasonably necessary for the performance of his duties as Comptroller.

We understand from the correspondence included with your memorandum that the Commissioner of Revenue Services has raised confidentiality concerns and intends to withhold the names and addresses of taxpayers pursuant to Conn. Gen. Stat. 12-15. We understand that you are not seeking the names and addresses of taxpayers, but that you want to be able to verify the existence of the returns and return information in question.

Conn. Gen. Stat. 12-15 provides that the Commissioner of Revenue Services shall not disclose any tax return or "return information". Return information is defined in Conn. Gen. Stat. 12-15 (d)(2) to include a taxpayer's identity.1 Although the Commissioner is generally prohibited from disclosing tax returns or return information, Conn. Gen. Stat. 12-15 contains several exceptions. Among the exceptions is subsection (a)(1), which states that "[the commissioner or the commissioner's authorized agent may disclose ... returns or return information to another state agency or office, upon written request by the head of such agency or office, when required in the course of duty or when there is reasonable cause to believe that any state law is being violated." Thus, under Conn. Gen. Stat. 12-15, the Commissioner of Revenue Services may not disclose returns or return information to the Comptroller unless the information is required in the course of duty or there is reasonable cause to believe that any state law is being violated.

It is a well-established rule of statutory construction that statues must be construed, if possible, so as to avoid conflict between them and give effect to both statutes. Berger v. Tonken, 192 Conn. 581, 473 A.2d 782 (1984); Hirschfeld v. Commissioner on Claims, 172 Conn. 603, 376 A.2d 71 (1977). If one statute is general and the other specific, the more specific statute is controlling. Charlton Press Inc. v. Sullivan, 153 Conn. 103, 214 A.2d 354 (1965).

In the present case, the requirement that records, papers and books in all public offices be open to inspection by the Comptroller is a more general statute than Conn. Gen. Stat. 12-15, which is specific to tax returns and tax return information in the possession of DRS. In order to avoid conflict and to give effect to both statutes, the restrictions of Conn. Gen. Stat. 12-15 must supersede the general requirement of disclosure set forth in Conn.'. Gen. Stat. 3-112. Thus, the Comptroller's right to inspect documents under Section 3-112 does not extend to tax return information which must be kept confidential under Section 12-15, unless disclosure is "required in the course of duty" or there is "reasonable cause to believe that any state law is being violated." Conn. Gen. Stat. 12-15 (a)(1).

While we a agree with the Commissioner that identifying information is not required in the course of the Comptroller's duties and should not be disclosed, we conclude that data which does not identify a particular taxpayer is specifically excluded from the definition of "return, information" in Conn. Gen. Stat. 12-15(d)(2), presumably because it does not raise the confidentiality concerns which underlie Section 12-15. Thus we conclude that while the Commissioner must not disclose information which identifies individual taxpayers, Conn. Gen. Stat. 12-15 does not prohibit the Comptroller from inspecting return information from which all identifying information, including names and addresses, has been deleted.

We understand that the Commissioner of Revenue Services has also indicated that his constitutional and statutory authority to administer the tax law empowers him to withhold information from the Comptroller. Specifically, the Commissioner has stated that "the Comptroller must at some point give way to the constitutional responsibilities of this department [DRS], as an arm of the executive branch, and our statutory mandate to administer the tax laws." Letter dated July 31, 1992 from Commissioner Crystal to the Comptroller. Aside from the requirement that tax return and return information be kept confidential, we find nothing in the Connecticut Constitution or in the general statutes which indicates that the Comptroller's authority to require reports and inspect records under Conn. Gen. Stat. 3-112 does not apply to DRS or its commissioner. Nor have we found anything to suggest that complying with the Comptroller's request in this case will interfere with the Commissioner's performance of his duties. We therefore need not determine in what hypothetical circumstances a request would interfere with the Commissioner's duties so that compliance with Conn. Gen. Stat. 3-112 would not be required.

II.

Your second question asks what constitutes satisfaction or satisfactory performance for enforcement purposes. We assume that you mean what constitutes satisfactory compliance by the Commissioner with the requirements of Conn. Gen. Stat. 3-112. '

The Commissioner of Revenue Services is bound to comply with the law, including the provisions of Con. Gen. Stat. 3-112. As stated by the Supreme Court, "[a]ll the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it." Butz v. Economu, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910 (1978) quoting United States v. Lee, 106 U.S. 196, 220 (1882).

In the present situation, the language of Conn. Gen. Stat. 3-112 is mandatory. "All records, books and papers in any public office shall at all reasonable times be open to inspection by the comptroller." Conn. Gen. Stat. 3-112 (emphasis added). The use of the word "shall" indicates that a statutory requirement is mandatory. Burke v. Rosenthal, 27 Conn. Sup. 141, 232 A.2d 508 (1967). In addition, "[t]he comptroller may require reports from any department, agency or institution as aforesaid upon a matter of property or finance...." Id. Based on this language, it is our opinion that the Commissioner must open his agency's records, books and papers which concern matters of finance to inspection by the Comptroller. Those records which he has a legal basis not to disclose, such as confidential tax return information, need not be opened for inspection. If the Commissioner produces the required reports and opens the required financial records to inspection by the Comptroller, then, in our opinion, he has satisfactorily complied with the requirements of Conn. Gen. Stat. 3-112.

III.

Your third question asks at what point a public official exposes himself to personal liability for violation of Conn. Gen. Stat. 3-112. We assume you are questioning whether the Commissioner of Revenue Services could be held personally liable for refusing to turn over information which the Comptroller requests pursuant to Conn. Gen. Stat. 3-112.

Your question assumes that there is a cause of action for damages for violation of Conn. Gen. Stat. 3-112. We know of no such cause of action. As is discussed in part IV below, the remedy for a violation of Section 3-112 is an action in mandamus to enforce the statute, not an action for damages.

IV.

Your fourth question asks what remedies are available to you to compel the Commissioner of Revenue Services to comply with the provisions of Conn. Gen. Stat. 3-112. There are no specific statutory remedies for violation of Conn. Gen. Stat. 3-112. A writ of mandamus, however, would provide a remedy.

In general, if a public official has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act. Raslavsky v. Moore, 167 Conn. 363, 355 A.2d 272 (1974). For example, in a situation somewhat similar to the present one, the Pennsylvania Supreme Court held that mandamus was the proper remedy for compelling the Board of Revision of Taxes of the County of Philadelphia to permit the Comptroller of the City and County to examine the board's records. Clark v. Meade, 369 Pa. 409, 85 A.2d 169 (1951). In Connecticut, the supreme court has upheld a writ of mandamus to compel a town clerk to permit a taxpayer to inspect the records of the town board of selectmen and board of finance. The taxpayer had a right to inspection pursuant to a statute which provided that "[a]ll books, papers and documents kept by such clerk shall be open to the inspection of any inhabitant of said town at any reasonable time." State ex. rel. Hansen v. Schall, 126 Conn. 536, 12 A.2d 767 (1940). The U.S. supreme Court has held that mandamus may compel a court clerk to permit access by an accused to depositions and exhibits sealed by the court. Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140 (1915).

There are three preconditions to the issuance of a writ of mandamus. First, the law must impose a duty on the party against whom the writ is sought and the performance of the duty must be ministerial as opposed to discretionary. Second, the party applying for the writ must have a clear legal right to have the duty performed. And third, there must be no other adequate remedy. Chamber of Commerce v. Murphy, 179 Conn. 712, 427 A.2d 866 (1980). The Connecticut Supreme Court has elaborated on the requirement that the duty be ministerial, stating that:

[M]andamus will lie even if the exercise of the duty involves discretion, so long as the existence of the duty is ministerial, and provided that the order issued does no more than require the duty to be performed, leaving the manner of its performance to the good-faith discretion of the official charged.

State ex. rel. Golembeske v. White, 168 Conn. 278, 284, 362 A.2d 1354, 1358 1975).

In the present case, if the preconditions for the issuance of a writ of mandamus were satisfied, mandamus would lie to compel the Commissioner to comply with Conn. Gen. Stat. 3-112. If an action in mandamus were brought by the Comptroller against the Commissioner, justiciability concerns such as whether the state could sue itself, or whether the issue was a political question, would not necessarily bar the action. In Civil Service Commission v. Perkul, 41 Conn. Sup. 302, 571 A.2d 715 (1989) the court held that the Waterbury Civil Service Commission could bring an action in mandamus against the city board of police commissioners even though both entities were agents of the City of Waterbury. In dismissing the justiciability issue, the court stated that:

[W]ith respect to the issue of justiciability, the defendants' "suing oneself" theory cannot be regarded seriously. In Ducharme v. Putnam, 161 Conn. 135, 138-139, 285 A.2d 318 (1971) the Supreme Court noted with no apparent disapproval that in United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S. Ct. 1410, 93 L. Ed. 1451 (1949) the federal government was permitted to sue itself. "[C]ourts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id. at 430, 69 S. Ct. at 1413.

Id. 571 A.2d at 718.

With regard to political questions, the Supreme Court has described a non-justiciable political question as an issue which involves:

a textually demonstrable constitutional commitment of the issue to a coordinate political department,,, or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691 (1962). Whether these elements would be present in an action to enforce the Comptroller's right to inspect records or receive reports would depend upon the facts of the particular case. For example, whether the court would have any basis for resolving disputes concerning the content of the reports could be a policy matter which is beyond the discretion of the court. Thus, we conclude that the justiciability concerns which you raised would not necessarily bar an action in mandamus to enforce the Comptroller's right to receive reports and inspect records, but would depend upon the facts involved in a specific dispute.

In summary, we conclude that the Comptroller may require reports on matters of finance from DRS and has a legal right to inspect relevant records, books and papers to the extent that they are necessary to the performance of the duties of the Comptroller and are not required to be kept confidential pursuant to Conn. Gen. Stat. 12-15. The Commissioner of Revenue Services must comply with the Comptroller's requests and may be compelled to comply by a writ of mandamus. Because there is no cause of action for damages under Conn. Gen. Stat. 3-112, the Commissioner could not be held personally liable for his failure to comply.

Very truly yours.

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Jane R. Rosenberg
Assistant Attorney General

RB/JRR/Imr


1 Return information is defined, in part, as "a taxpayer's identity, the nature, source or amount of the taxpayer's income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax collected or withheld, tax underreportings, tax overreportings, or tax payments ... or any other data received by, recorded by, prepared by, furnished to, or collected by the commissioner with respect to a return or with respect to the determination of the existence, or possible existence, of liability of any person for any tax, penalty, interest fine, forfeiture, or other imposition, or offense. Return information does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer." Conn. Gen. Stat. 12-15(d)(2).


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