Attorney General: Honorable Rose Alma Senatore , Department of Children and Youth Services , 1993-013 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 14, 1993

Honorable Rose Alma Senatore
Department of Children and Youth Services
l70 Sigourney Street
Hartford, CT 06l05

Dear Commissioner Senatore:

You have asked whether or not foster parents are entitled to representation and indemnification from the State of Connecticut. The corollary question is whether they are independent contractors and therefore not entitled to representation or indemnification.

Under Connecticut law, Conn. Gen. Stat. 4-165, state officers and employees are immune from liability.1 The term "state officers and employees" is defined by statute as "every person elected or appointed to or employed in any office, position or post in the state government, whatever his title, classification or function and whether he serves with or without remuneration or compensation, including judges of probate courts and employees of such courts." Conn. Gen. Stat. 4-141. "State officers and employees" also includes:

attorneys appointed by the public defenders services commission as public defenders, assistant public defenders or deputy assistant public defenders, and attorneys appointed by the court as special assistant public defenders, the attorney general, the deputy attorney general and any associate attorney general or assistant attorney general, any other attorneys employed by any state agency, any commissioner of the superior court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, any person appointed to a committee established by law for the purpose of rendering services to the judicial department including, but not limited to, the legal specialization screening committee and the state bar examining committee, and any physicians or psychologists employed by any state agency.

Id.

State officers and employees as defined by Sec. 4-141 are also indemnified from claims or losses. The Attorney General will represent such individuals in civil actions, unless the Attorney General determines "that it would be inappropriate to do so and he so notifies the officer, employee or member in writing." Conn. Gen. Stat. 5-141d.2

Foster parents do not come within the statutory definition of state employees or officers. They are neither elected nor appointed nor employed in any office, position or post in state government, nor do they fit under any of the other enumerated positions listed in Sec. 4-141. Although foster parents perform a valuable function, they do so under contract, rather than as employees of the state.

The leading Connecticut case which analyzes and explains the difference between state employees and independent contractors in relation to the statutory immunity provisions for state employees is Spring v. Constantino, l68 Conn. 563 (l975). In Spring, the Supreme Court considered whether public defenders are immune from liability. The court explained that while "there is a public interest aspect to the public defender system," public defenders do not qualify for immunity as "state employees." Id. at 566. The court considered that the immunity provisions in the Conn. Gen. Stat. 4-165 are subject to strict construction because

statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed...

Id. at 570-571.

The court further considered whether public defenders are employees or independent contractors, for whom the state would not be liable.

The legal incidents of the relation between an employer and an employee or independent contractors are well established. Lassen v. Stamford Transit Co., l02 Conn. 76, 79-80, 82, 128 A. ll7. In Alexander v. R. A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514, we adopted the definition that "[a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work." This definition has been amplified in subsequent cases but at no time has the basic principle been altered. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. l98.... "The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work."

Id. at 573 (citations omitted).

The court concluded that public defenders do not operate under the control of the state but in fact carry out their functions in an attorney-client relationship. Ultimately, the General Assembly amended Conn. Gen. Stat. 4-165 and Conn. Gen. Stat. 5-141d to specifically provide immunity and representation for public defenders.

Therefore, in determining whether or not a party is an independent contractor, the analysis must focus on whether a foster parent:

1. Exercises independent employment;

2. Works according to his own methods without

being subjected to his employer's control, and

3. Has the right to control the means and methods

of work.

The Department of Children and Youth Services (DCYS) licenses foster homes and monitors compliance with licensing standards pursuant to Conn. Gen. Stat. 17a-114. The commissioner is required "to exercise careful supervision of each child under his guardianship or care and ... maintain such contact with the child and his foster parents as is necessary to promote the child's safety and his physical, educational, moral and emotional development." Conn. Gen. Stat.  17a-98. Likewise, foster parents must "make such reports to said commissioner at such reasonable times and in such form and covering such data as said commissioner directs." Conn. Gen. Stat. 17a-96.

Foster parents provide daily care for children; DCYS' role is to monitor that care. Although there is indirect supervision provided by DCYS, the day-to-day duties of child care are within the sole discretion of the foster parents. By and large, foster parents work according to their own approach to child care and have the right to "control both the means and methods of their work."

Since the state maintains only general authority over the operation of a foster home, principally through the licensing and monitoring process, and little control over the actual child care performed by the foster parent, the foster parent cannot be viewed as the employee of the state, but rather is an independent contractor.

Therefore, Conn. Gen. Stat. 4-165 and 5-141d cannot be applicable in the instant situation in that the scope of their coverage applies only to state employees and specifically identified classes of other individuals, which do not include foster parents. Consequently, it is our opinion that foster parents, as independent contractors, are not entitled to either indemnification from or representation by the State of Connecticut.

We note that several recent federal court decisions have held that foster parents are not "state actors," under 42 U.S.C. 1983. In Lintz v. Skepski, 807 F.Supp. 1299 (W.D. Mich. l992), the district court ruled that because day-to-day parenting decisions were left to the judgment of the foster parents, the state did not exercise control over the foster parents, notwithstanding the fact that foster homes are licensed and paid by the state. See also Milburn v. Anne Arundel County Department of Social Services, 871 F.2d 474 (4th Cir. l989).

In summary, we conclude that foster parents are independent state contractors, not state employees and therefore are neither entitled to immunity or indemnification under state law, nor representation by the Attorney General's Office.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Susan T. Pearlman
Assistant Attorney General

RB/STP/gr

Attachment


1 Conn. Gen. Stat. e 4-165 provides:

No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. For the purposes of this section 'scope of employment' shall include, but not be limited to, representation by an attorney appointed by the public defender services commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a petition of delinquency, representation by such other attorneys, referred to in section 4-141, of state officers and employees, in their official and individual capacities, the discharge of duties as a trustee of the state employees retirement system, the discharge of duties of a commissioner of superior court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial positions, and the discharge of duties of a person appointed to a committee established by law for the purpose of rendering services to the judicial department; provided such actions arise out of the discharge of the duties or within the scope of employment of such officers or employees. For purposes of this section, members or employees of the soil and water district boards established pursuant to section 22a-315 shall be considered state employees.

2 Conn. Gen. Stat. e 5-141d provides in pertinet part:

(a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the public defender services commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.

(b) The state, through the attorney general, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the attorney general, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.


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