Attorney General: Hon. John B. Larson, President Pro Tempore, 1993-007 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 27, 1993

Hon. John B. Larson
President Pro Tempore
Senate
State Capitol
Hartford, Connecticut 06106

Dear Senator Larson:

By letter dated March 5, 1993, you have asked our office for a formal opinion as to whether Gwen B. Weltman, Esq. of Bethany, who has been nominated by Governor Lowell P. Weicker, Jr. as a public member of the Commission on Hospitals and Health Care ("the Commission") qualifies as such pursuant to Conn.Gen.Stat. 19a-146. Specifically, you question whether Attorney Weltman's previous employment as a social worker by Yale-New Haven Hospital between April 1980 and July 1983 violates 19a-146's mandate that a public member "shall not ... have any past professional affiliation with any health care facility or institution...."

We have concluded that Attorney Weltman's employment in 1980-1983 bars her from serving as one of the public members on the Commission. We regret this unfortunate result given Attorney Weltman's record of public service and other qualifications but this conclusion is dictated by the existing statutory language and legislative history. While its application in this instance may prompt review as to the wisdom of revising it, the present provision simply permits no other outcome.

Section 19a-146 of the General Statutes provides in pertinent part as follows:

There is established an independent commission on hospitals and health care consisting of five persons appointed by the governor, subject to the provisions of section 4-9a, ... two of whom shall be members of the general public ... The public members of the commission shall be electors of the state and shall not be affiliated with, employed by or have any past professional affiliation with any health care facility or institution, health product manufacturer or corporation or insurer providing coverage for hospital or medical care, provided service as a trustee or corporator of any health care facility or institution, which service terminated prior to three years before appointment as a member of the commission, shall not be considered to be past professional affiliation for the purposes of this section.... (Emphasis added.)

Section 4-9a1 of the General Statutes purports to set forth the requirements of membership of all boards and commissions within the executive department, with certain specified exceptions. Subsection (b) defines "public members" and requires that they constitute not less than one third of the members of each board and commission. Although certain agencies are specifically excluded from the requirement, the Commission is not one of them.

According to 4-9a(b), a public member means, inter alia, someone who was not professionally affiliated with the relevant regulated industry for three years preceding his or her appointment to the board or commission. The sentence in 19a-146 to which you referred, however, appears to explicitly bar any past affiliation, regardless of when it occurred, unless the affiliation was in the nature of a trustee or corporator relationship, in which case there is a three year limit on the prohibition. Thus, the task of interpreting 19a-146 requires that it be reconciled with 4-9a(b).

When confronted with questions as to the meaning of a statute, the pertinent sources of guidance are its language, its legislative history, the policy it was designed to implement, and the circumstances surrounding its enactment to determine the legislative intent. Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 96 (1992); Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 769 (1991).

Prior to 1981, 19a-146 made no reference to 4-9a. The limitation on the qualifications of public members of the Commission has been in existence since the creation of the Commission in 1973. See, P.A. 73-117, 3. That limitation provided for a lifetime ban on most past affiliations with a health care facility and all affiliations with a manufacturer of a health care product or an insurer; a proviso exempted past affiliations in the nature of a trustee or corporator relationship with a health care facility which ended three years before the appointment.2

In 1977, 4-9a was enacted as part of a major reorganization of the State's administrative agencies. P.A. 77-614, 13. Public Act 77-614 resulted from a comprehensive review of state government. A reading of the Act and of its legislative history leaves no doubt that all agencies, including the Commission, were considered and that all agencies were intended to be included in the reorganization and the general provisions, except where the Act specifically exempted an agency. See, 20 Conn.S.Proc., Pt. 7, 1977 Sess., 2589-2597; 20 Conn.H.R.Proc., Pt. 12, 1977 Sess., 4956-4964. Agencies were reorganized under major departments. Certain otherwise independent agencies were placed under the major departments for administrative purposes; the Commission was one of these agencies and was placed under the Department of Health Services P.A. 77-614, 332. Sunset provisions were added that would automatically abolish agencies unless the legislature acted to save them; the Commission was one of the agencies included in the sunset provisions. P.A. 77-614, 573(b)(13). In addition, section 13 of P.A. 77-614 was discussed as a provision applying to all agencies except where specifically exempted. See, 20 Conn.H.R.Proc., Pt. 12, 1977 Sess. 4962, 4964; 20 Conn.S.Proc., Pt. 7, 1971 Session, 2596.

In 1981, a major change was made in the the composition of the Commission and thus to 19a-146. The Commission changed from a part-time 17-member body to a full-time 3-member agency. P.A. 81-465, 1. The membership on the Commission had previously included very specific categories such as a nursing home administrator, a hospital administrator and a physician and required that one public member be appointed by the speaker of the House and one by the president pro tempore of the Senate and that seven other public members be geographically balanced. Public Act 81-465 reduced the representation on the Commission to a health care professional, a person having experience in the field of financial management and one public member.

As part of the 1981 Act, the legislature added that appointment by the governor shall be "subject to the provisions of section 4-9a." However, the legislature refrained from changing the explicit provision prohibiting a public member from having a past professional affiliation; the legislature still provided for a three-year limit on a trustee or corporator but no time limit on any other type of past professional affiliation.

"[I]t is presumed that the legislature in enacting a statute, acts with the knowledge of existing relative statutes and with the intention of creating one consistent body of law." Commission v. Freedom of Information Commission, 204 Conn. 609, 621 (1987). If two statutes appear to be inconsistent, they are to be construed, if possible, so that both are operative. Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641 (1991). If there is an irreconcilable conflict between two provisions, "specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling." Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592 (1979); Atwood v. Regional School District No. 15, 169 Conn. 613, 622 (1975). See, 87 Conn.Op.Atty.Gen. 295 (July 6, 1987) (concluding that where 4-9a irreconcilably conflicts with the more specific provisions of certain Department of Mental Health statutes, the latter control).

It is not entirely clear what the intent of the legislature was in 1981 when, in amending 19a-146, it added an internal reference to 4-9a, but did not change the express provision which barred most past affiliations with the regulated industry with no time limit on the affiliation. We believe that an interpretation which gives operative effect to the specific language, which was apparently reenacted in 1981 and subsequently (see, P.A. 89-3713), is most consistent with the principle of statutory construction that specific provisions prevail over more general provisions and does the least violence to the actual words of the statute.

There is no question that the prohibitions on a public member of the Commission are broader than those on public members of other agencies. A Commission public member may not have a present or past affiliation with the regulated industry, i.e., health care facilities. In addition, he or she may not be affiliated with a health product manufacturer or an insurer providing coverage for hospital or medical care. The affiliation barred by 4-9a only refers to that with the regulated industry. Thus, it is clear that the legislature intended that the restrictions on public members of the Commission be different than those specifically mentioned in 4-9a. These additional restrictions are reasonable given the broad powers this full-time Commission has over health care facilities. See, Conn.Gen.Stat., Chap. 368c. The Commission's role differs substantially from that of some of the part-time boards covered by 4-9a, which have a narrower and more limited function.

In addition, if the three-year limit on past affiliations were incorporated into 19a-146, the statute would be left with superflous language. If the legislature had intended to apply the three-year limit to all past affiliations, then the proviso exempting service as a trustee or corporator of a health care facility which terminated prior to three years before appointment should have been deleted. It was not. It is presumed that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions. Turner v. Turner, 219 Conn. 703, 713 (1991). The proviso has meaning only if all other past affiliations have no time limit.

Further, this interpretation may be viewed as giving effect to both the provisions of 4-9a and 19a-146, as courts are required to do when interpreting related statutes. A public member who meets the qualifications specified in  19a-146 would necessarily meet the definition of public member in 4-9a since such a person would be an elector of the state and would not have been affiliated with the regulated industry for three years prior to the appointment.

We are aware that this interpretation of 19a-146 creates a dichotomy between classes of public members that may be questioned by some as a matter of public policy. Public members are required to be on boards and commissions to help bring an untainted view to decisionmaking. 32 Conn.H.R.Proc., Pt. 13, 1989 Sess., 4347 (legislative history of 19a-146); 20 Conn.S.Proc.1977 Sess. 2683 (legislative history of 4-9a). The sentence in 19a-146 prohibiting specified past affiliations for public members contains an exemption for trustees or incorporators whose service terminated prior to three years before appointment. The term "trustee" is often used in Connecticut to refer to directors of corporations.4 Chambers v. Blickle Ford Sales, Inc., 313 F.2d 252 (2d Cir.1963) (citing to Mallory v. Mallory Wheelor Corp., 61 Conn. 131, 138 (1891)). Directors or trustees manage the affairs of a corporation, in this case a health care facility. See, Conn.Gen.Stat. 33-421(b) and 33-447.

Nonetheless, when the statutory language is explicit, it must be followed. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187 (1991). See, Weingarten v. Allstate Company, 169 Conn. 502, 507 (1975) ("Courts cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.") In this case, the distinction between types of past affiliations has been present since the inception of the Commission in 1973. For whatever reason, the legislature decided to exempt trustees and corporators from the lifetime ban on past affiliations. Whatever we may think of such a policy choice, there is no question that such was the intent when the Commission was first created and that this provision was specifically reenacted by the legislature in subsequent amendments to the statute.

We need not determine the exact range and meaning of the term "professional affiliation". Whether it refers to affiliations by persons who were professionals5 at the time or means any affiliation other than one in a social context, Attorney Weltman's employment as a social worker certainly qualifies. She is therefore barred from serving as a public member on the Commission.

It is, of course, entirely within the legislature's power to change the statute and to do so promptly if it desires to allow Attorney Weltman to qualify as a public member of the Commission.

Very truly yours,

Richard Blumenthal
Attorney General

Maite Barainca
Assistant Attorney General

March 5, 1993

Hon. Richard Blumenthal
Attorney General
Office of the Attorney General
55 Elm Street
Hartford, CT 06106

Dear Attorney General Blumenthal:

I am writing at the request of the co-chairs of the Executive and Legislative Nominations Committee, Senator Amelia Mustone and Representative Ernest Newton, concerning the qualifications of a gubernatorial nominee currently being considered by the Committee. Governor Lowell P. Weicker, Jr. has nominated Gwen B. Weltman, Esq. of Bethany to serve as the public member of the Commission on Hospitals and Health Care.

Conn.Gen.Stat. Sec. 19a-146 mandates that public members of the Commission "shall not be affiliated with, employed by or have any past professional affiliation with any health care facility or institution, health product manufacturer or corporation or insurer providing coverage for hospital or medical care," (emphasis added). Attorney Weltman's resume states that she was employed as a social worker by Yale-New Haven Hospital between April 1980 and July 1983.

Thus, the issue is whether Attorney Weltman is barred by C.G.S. 19a-146 from serving as a public member of the Commission. Although Governor Weickers's Press Secretary has asserted that there is no legal barrier to the nomination based upon the Governor's legal staff's interpretation of the statute, the Committee Co-Chairs would prefer to have your office's opinion before proceeding on this nomination.

I want to emphasize, on behalf of both myself and the Co-Chairs, that the sole issue is whether Attorney Weltman is legally qualified to serve as a public member under the statute as now written. From all appearances she is highly qualified to serve on the merits. Unfortunately, that is not the issue.

Given the critical nature of the Commission's work, I would ask that you make every effort to expedite this matter. If you need any additional information, please do not hesitate to contact me at once. As always, I appreciate your prompt and thorough cooperation.

Sincerely,

John B. Larson
President Pro Tempore


1 Section 4-9a of the General Statutes provides as follows:

(a) The governor shall appoint the chairperson and executive director, if any, of all boards and commissions within the executive department, except the board of governors of higher education, provided the governor shall appoint the initial chairman of said board as provided in section 10a-2, the state properties review board, the state elections enforcement commission, the commission on human rights and opportunities, the state ethics commission and the commission on fire prevention and control.

(b) Public members shall constitute not less than one third of the members of each board and commission within the executive department, except the gaming policy board and the commission on human rights and opportunities. Public member means an elector of the state who has no substantial financial interest in, is not employed in or by, and is not professionally affiliated with, any industry, profession, occupation, trade or institution regulated or licensed by the relevant board or commission, and who has had no professional affiliation with any such industry, profession, occupation, trade or institution for three years preceding his appointment to the board or commission. Except as otherwise specifically provided by the general statutes, this section shall not apply to the commission on fire prevention and control, boards and commissions the membership of which is entirely composed of state department heads, elected officials or deputies appointed by such department heads or where the membership of such board or commission is determined in accordance with the provisions of any federal law.

(c) Notwithstanding any provision of law to the contrary, the term of each member of each board and commission within the executive branch, except the state Board of Education, the Board of Governors of Higher Education, the Gaming Policy Board, the Commission on Human Rights and Opportunities, the state Elections Enforcement Commission, the state Properties Review Board, the state Ethics Commission, the Commission on Medicolegal Investigations, the Psychiatric Security Review Board, the Commission on Fire Prevention and Control, the E9-1-1 Commission, the state Commission on the Arts and the board of trustees of each constituent unit of the state system of higher education, commencing on or after July 1, 1979, shall be coterminous with the term of the governor or until a successor is chosen whichever is later.

(d) Each member of each board and commission within the executive branch shall serve at the pleasure of the appointing authority except where otherwise specifically provided by any provision of the general statutes.

2 During the debate on the 1973 bill creating the Commission, Senator Gunther attempted to delete the no-past-affiliation requirement because of his concern that there would be exclusion of people "who might be some of the top people we ought to have on there, merely because they might have been involved in either selling equipment or being employed by a hospital or being in a profession when many times these are exactly the people we should have on this particular council." 16 Conn.S.Proc., pt. 4, 1973 Sess. 1471 - 1472. Senator Gunther's proposed amendment failed, indicating the legislature's intent to bar anyone with a past affiliation from serving as a public member, notwithstanding the disadvantages of such a rigid prohibition.

3 Public Act 89-371 changed the composition of the Commission from a three-member to a five-member agency and added a second public member. The Act also provided that simply having insurance coverage was not considered to be an affiliation with an insurer. P.A. 89-371, 10.

4 Documents filed by Connecticut hospitals at the Commission as part of the required annual data submission demonstrate that some of the hospitals refer to their boards of directors as boards of trustees.

5 "Profession" is defined as a "vocation or occupation requiring special, usually advanced education and skill.... The labor and skill involved in a profession is predominantly mental or intellectual, rather than physical or manual." Black's Law Dictionary (5th Ed.). See, United States v. Laws, 163 U.S. 258, 268 (1896); Gulf Insurance Company V. Tilley, 280 F.Supp. 60, 63 (N.D.Ind.1967); Paterson v. University of State of New York, 201 N.E. 27 (N.Y.1964).


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