Attorney General: Honorable Emil H. Frankel, Department of Transportation, 1993-035 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 15, 1993

Honorable Emil H. Frankel
Department of Transportation
24 Wolcott Hill Road
Wethersfield, CT 06129-0801

Dear Commissioner Frankel:

This is in response to your memorandum dated September 22, 1993 wherein you request our opinion on whether the members of the Connecticut Pilot Commission ("Commission") have a right to defense by the State of Connecticut and indemnification should the exercise of their duties as Commission members result in litigation against them in their official or individual capacities. It is our opinion that Commission members are entitled to the representation and indemnification protection provided in Conn. Gen. Stat. e5-141d.

Subsection (a) of e5-141d provides that:

The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141...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. (Emphasis added)

Subsection (b) of e5-141d provides that:

The state, through the attorney general, shall provide for the defense of any 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.

The above quoted provisions of e5-141d provide state officers and employees, as those terms are defined in Conn. Gen. Stat. e4-141, with certain rights to representation through the state in litigation arising from actions taken in the discharge of their duties and also provides for indemnification under the circumstances described in the statute. Section 4-141 defines the terms "state officers and employees" to "include every person...appointed to...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..."

The Commission was established in 1992 by the General Assembly to advise the Commissioner of Transportation on matters relating to the licensure of pilots, the safe conduct of vessels and the protection of the ports and waters of the state, including Long Island Sound:

The commission shall advise the commissioner on the following matters: (1) The required qualifications of pilots for eligibility for licensure, including background, training, length of service and apprenticeship; (2) examination requirements for obtaining a pilot's or other type of operating license; (3) the appropriate number of state-licensed pilots necessary for the safe, efficient and proper operations in the ports and waters of the state, including the waters of Long Island Sound; (4) the establishment of fair and reasonable rates of pilotage, pursuant to section 15-14, including establishment of a hearing process for the setting of fair and reasonable rates of pilotage and licensure fees; (5) the policy of the state on the establishment of a rotation system for the assignment of pilots; (6) the policy of the state on the issuance of reciprocal licenses to pilots licensed in other states; (7) the enhancement of safety and protection of the marine environment during the operation of vessels and the prevention of oil spills and other marine incidents; (8) the proper equipment required on a vessel and the operation of vessels used by pilots for embarkation and disembarkation; (9) the designation of pilot boarding stations; (10) the proper safety equipment provided by vessels to enable pilots to safely board vessels; (11) the state's policy relative to matters of interstate pilotage and (12) any other matter requested by the commissioner.

1992 Conn. Pub. Act No. 92-178 e1(e) (now Conn. Gen. Stat. e15-13c(e)) Moreover, subsection (f) of e15-13c provides that:

The commission shall, at the request of the commissioner: (1) Assist in the preparation of examinations for pilot licensure and other operating certificates; (2) evaluate the examination results of applicants for a pilot license and make appropriate recommendations concerning such applicants' qualifications; (3) assist in the review and monitoring of the performance of pilots; (4) review applications for reciprocal licensure and make appropriate recommendations concerning such pilot's qualifications; (5) recommend the duties of pilots for the reporting of faulty pilot boarding and disembarkation systems and of violations of any state laws; (6) review and investigate any marine incident or casualty and conduct hearings to determine the causes of any such incident; (7) make recommendations on disciplinary measures, including such measures as letters of caution, admonition or reprimand and licensure suspension or forfeiture, including disciplinary matters relative to alcohol or drug abuse; (8) retain an independent investigator to compile a comprehensive factual record of any marine incident or casualty; (9) assist in the review of complaints filed with the commissioner; and (10) assist in the preparation of any report or matter relative to pilotage.

The Commission is comprised of seven members who are appointed as follows: one by the governor, one by the speaker of the house of representatives, one by the president pro tempore, one by the majority leader and one by the minority leader of the house of representatives and one by the majority leader and one by the minority leader of the senate. Members serve a four-year term and receive reimbursement for necessary expenses incurred in the performance of their duties. Conn. Gen. Stat. e15-13c(b).

It is evident from reading the provisions of e15-13c and the other statutes governing the operations of the Connecticut Pilot Commission that the Commission was established under an authority conferred by law for the purposes of carrying out certain functions of state government and that commission members are appointed to an office, post or position in state government.

It is therefore our opinion that members of the Connecticut Pilot Commission are "state officers and employees" as defined by Conn. Gen. Stat. e4-141 and are, as a consequence, entitled to representation and indemnification in accordance with Conn. Gen. Stat. e5-141d for acts not wanton, reckless or malicious performed in the discharge of their duties.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Alan N. Ponanski
Assistant Attorney General

RB/ANP/la


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