Attorney General: Hon. John G. Rowland, Executive Chambers, 1995-008 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 15, 1995

Hon. John G. Rowland
Governor
Executive Chambers
State Capitol
210 Capitol Avenue
Hartford, Connecticut 06106

Hon. Thomas D. Ritter
Speaker of the House of Representatives
Legislative Office Building
Room 4100
Hartford, CT 06106-1591

Dear Governor Rowland and Speaker Ritter:

We have received your letters of February 8, 1995, soliciting our opinion on issues concerning temporary gubernatorial appointments arising from the application of Conn. Gen. Stat. 4-7(b)(2). Specifically, you both ask whether a "designate" under 4-7(b)(2) must be sworn in pursuant to Conn. Gen. Stat. 4-1 before exercising the powers and duties of the office. We conclude that, prior to exercising the duties of their offices, such persons must be sworn in under Article XI, 1 of our state constitution, and that Conn. Gen. Stat. 4-1 is therefore not dispositive. We further conclude that, up until this opinion's issuance, unsworn designates have acted as "de facto officers," and their actions are thus valid.

Pursuant to Conn. Gen. Stat. 4-6, an incumbent "department head" may serve until March 1st following the swearing in of a new governor.1 In 1991, immediately after Governor Weicker's swearing into office, the legislature noted the problem that arises when incumbent department heads decline to serve until March 1. The legislature enacted 4-7(b)(2) (P.A. 91-1), which provides:

If a vacancy occurs in the office of any department head prior to the first day of March during the first regular session of the general assembly following the election of a new governor, the nominee of the newly elected governor may exercise the powers and duties of the office as provided in section 4-8, as designate, until the nomination is confirmed or rejected pursuant to [ 4-7(b)(1)].

This act addresses the "problem that arises ... with a new Governor and a new administration [and] the need to fill some vacancies immediately." S. Proc. January 9, 1991, at 78 (Sen. O'Leary). The legislation proposed to permit the Governor, in the year of transition only, to "appoint acting agency heads until the General Assembly either confirms or denies them.... [This] will be a person vested with the authority of the State to bind the agency and the State to the acts of that agency." S. Proc. January 9, 1991, at 78 (Sen. O'Leary). The sponsors of the bill made clear that the process of investigating and confirming the Governor's nominees would go on, "but while that process is taking place we will still have in place someone who is authorized and empowered to carry out the responsibilities and duties of the commissioner." H. Proc., January 9, 1991, at 304 (Rep. Frankel).

Article XI, 1 of the Connecticut Constitution provides: "Members of the general assembly, and all officers, executive and judicial, shall, before they enter on the duties of their respective offices, take the following oath or affirmation ...." Clearly the head of an executive department is an executive officer. See Milford v. Local 1566, 200 Conn. 91, 99 (1986) (board members of the State Board of Mediation and Arbitration are "officers" required to take the constitutional oath). The question is whether a "designate" under Conn. Gen. Stat. 4-7(b)(2) is an "officer" under Article XI, 1, and therefore required to be sworn in before assuming the duties of his or her office?

"The word 'officer' is a term of vague and variable import, the meaning of which may depend on the circumstances under which it is used." 67 C.J.S. Officers 2, p. 218. See, e.g., Spring v. Constantino, 168 Conn. 563, 568 (1975) (three part test defining "public office"). In this case, therefore, we must look to the context of the oath requirement, and rely on familiar rules of statutory construction.

First, in interpreting statutes we seek to avoid "bizarre" or "absurd" results that would follow from a particular interpretation. Lechner v. Holmberg, 165 Conn. 152, 159 (1973). Second, we construe the words of a statute in a way to avoid constitutional jeopardy, while remaining true to the legislative intent. McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 672, 706 (1989). Finally, we "must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature." State v. Harris, 32 Conn. App. 831, 840 (1993).

Following these rules, we conclude that the legislature intended "designates" under Conn. Gen. Stat. 4-7(b)(2) to possess the kind of authority and responsibility that would necessarily qualify them as "officers" under Article XI, 1 of our state constitution, who, pursuant to that constitutional provision, must take an oath or affirmation "before they enter on the duties of their respective offices." Clearly the legislature intended that a "designate" under Conn. Gen. Stat. 4-7(b)(2) would possess the authority to bind the State and the agency. S. Proc., January 9, 1991, at 78 (Sen. O'Leary); H. Proc., January 9, 1991, at 304 (Rep. Frankel). It would be quite anomalous if a gubernatorial nominee, confirmed by the legislature, would have to be sworn before assuming his or her duties, while a "designate," as yet unconfirmed, would not. We doubt that the legislature intended such a result.

This interpretation comports with the general rule defining an "officer" broadly as "one who holds, or is an incumbent of, an office, or who performs the duties of an office, or is lawfully invested with an office." 67 C.J.S. Officers 2, pp. 218-19. Since a "designate" has, on a temporary basis, all of the authority of a confirmed nominee, he or she certainly falls within this broad definition of "officer."2 A broad construction of "officer" is also consistent with our courts' interpretation of Conn. Gen. Stat. 4-1.3 (FN3) Our Supreme Court views this section as "a remedial statute which should receive as liberal a construction as can reasonably be given, to effectuate its beneficial purpose." State ex rel. Barnes v. Holbrook, 136 Conn. 312, 317 (1949). As with 4-1, we may assume that the constitutional provision was intended to be inclusive, rather than exclusive, regarding who must take an oath.

Speaker Ritter's next series of questions concerns the authority that may already have been exercised by a designate who should have been sworn in, but was not. We believe most of these questions are resolved by the doctrine of a "de facto officer." Our courts have recognized a number of circumstances in which a person who does not hold a public office de jure may qualify as a de facto officer, and whose actions may therefore be valid and binding.

First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond or the like. Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such.

Furtney v. Zoning Commission, 159 Conn. 585, 595-96 (1970). See also Sansone v. Clifford, 219 Conn. 217, 226-27 (1991); Berger v. Guilford, 136 Conn. 71, 81-82 (1949) (even if state referee had not taken a proper oath he would be a de facto public officer, the validity of whose acts are not open to challenge).

Generally, de facto officers, under the test quoted above, may act officially as though they were de jure officers, and their rights and liabilities are the same. 67 C.J.S. Officers 274, p. 810. See 79 Conn. Op. Atty. Gen. Op. 11/6/79 (enclosed). No facts presented to us lead to a conclusion that any of the unsworn designates have to this point acted other than as de facto officers. However, from the date of this opinion forward all designates must be sworn in prior to their exercise of the powers conferred on them pursuant to Conn. Gen. Stat. 4-7(b)(2).

Finally, the Governor asks whether a designate must take an oath to receive compensation for services rendered. In an opinion dated January 24, 1994 (enclosed), we determined that the "general rule" is "that "an officer de facto acting in good faith is entitled to the compensation attached to the office, where there is no de jure officer claiming the office." The facts provided do not appear to justify a departure from this general rule, at least for the period of service prior to this opinion's issuance.

We trust this has been of assistance to you.

Very truly yours,

Richard Blumenthal
Attorney General

Henry S. Cohn
Assistant Attorney General

Gregory T. D'Auria
Assistant Attorney General

Enclosure


1 The term "department head" is defined in Conn. Gen. Stat. 4-5 to include listed state commissioners, as well as other persons. Under certain circumstances the incumbent department head from the previous administration may continue in office until March 10. See Conn. Gen. Stat. 4-6.

2 It is important to understand that the legislature intended that a person would not become a "designate" until the Governor submitted his or her name to the appropriate legislative body for nomination. H. Proc., January 9, 1991, at 308. Thus, a person does not assume the power of the office when the Governor declares his intent to nominate, without formally nominating that person. This should answer Speaker Ritter's second and third questions.

3 Conn. Gen. Stat. 4-1 provides, in pertinent part:

Unless otherwise specifically provided by law, each person appointed or nominated for appointment by the governor, with or without the advice and consent of the general assembly or either house thereof, and each person appointed or elected by the general assembly or either house thereof, shall be sworn and shall hold office ....


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