Attorney General: Honorable John G. Rowland, Hartford, Connecticut 06106, 1995-014 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 7, 1995

Honorable John G. Rowland
State of Connecticut
Executive Chambers
Hartford, Connecticut 06106

Dear Governor Rowland:

On February 17, 1995, you requested an opinion of this office on whether or not seven individuals appointed by former Governor Weicker are qualified to serve as members of the Employees' Review Board, and the terms they can serve if they are qualified. By separate letter dated March 8, 1995 (attached), Peter Rozantes of the Department of Administrative Services supplied this office with the following facts upon which this advice is based:

(1) On January 3, 1995, former Governor Weicker sent six individuals the following identical letters of appointment to the Employees' Review Board. A seventh letter to George J. Ritter was different only in that it purported to appoint him as "a member and Chairman of the Employees' Review Board":

Pursuant to Section 5-201 of the Connecticut General Statutes, it is my pleasure and privilege to appoint you a member of the Employees' Review Board, to serve for the term ending July 1, 1999.

(2) Of the seven individuals, only three, Sandra Biloon, Larry Foy, and Father Daniel Johnson, "have substantial current experience as ... impartial arbitrator[s] of labor-management disputes," as required by Conn. Gen. Stat. 5-201(a).

(3) The seven individuals have not taken an oath of office, met or attempted to meet, voted on any matter, or conducted any business whatsoever.

(4) Prior to January 3, 1995, all Employees' Review Board positions were either vacant or held by individuals holding over beyond their original terms of appointment until a successor is appointed. See Conn. Gen. Stat. 5-201(a). In other words, no member was reappointed to a second term of office.

Based on these facts, and the analysis which follows, we conclude that the January 3, 1995 appointments to the Employees' Review Board were not proper appointments under the statute, and are, therefore, a nullity. Further, four of the appointees lack a statutorily mandated qualification for office, and their appointments are additionally void for this reason as well.

  1. Terms of Employees' Review Board Members

    A.

    Conn. Gen. Stat. 5-201(a), originally enacted in 1967, sets forth the terms of office for members of the Employees' Review Board [hereinafter ERB]. It provides, in part:

    There shall be an employees' review board consisting of seven members.... On or after January 1, 1983, and quadrennially thereafter, the governor shall appoint five persons to serve as members of the board for terms of four years from the first day of January preceding such appointment or until their successors are appointed. On or after July 1, 1987, and quadrennially thereafter, the governor shall appoint two persons to serve as members of the board for terms of four years from the first day of July preceding such appointment or until their successors are appointed.

    However, Conn. Gen. Stat. 4-9a(c), enacted in 1977 as 13 of 1977 Conn. Pub. Acts No. 77-614, An Act Concerning the Reorganization of the Executive Branch of State Government, provides:

    Notwithstanding any provision of law to the contrary, the term of each member of each board and commission within the executive branch, except [certain enumerated boards and commissions] 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.

    As a threshold question, it must be decided which statute governs ERB terms, Conn. Gen. Stat. 5-201(a), or Conn. Gen. Stat. 4-9a(c).

    In 1987, the General Assembly adopted 1987 Conn. Pub. Acts No. 87-456 which, inter alia, increased the membership of the ERB from five to seven, established the terms of office for the two new members, imposed an experience requirement, and limited ERB members to serving two consecutive terms. Thus, while 1977 Conn. Pub. Acts No. 77-614 established general terms of office for members of boards and commissions, 1987 Conn. Pub. Act No. 87-456 established specific terms of office and requirements for and limitations on ERB membership.

    This office has addressed similar apparent conflicts with Conn. Gen. Stat. 4-9a(c) on three occasions. In 85 Conn. Op. Atty. Gen. 192 (1985), this office concluded that the terms of office estalished by a 1982 Public Act for members of the Bradley International Airport Commission prevailed over Conn. Gen. Stat. 4-9a(c) "because of two well established principles of statutory construction...: (a) ... the specific terms of a statute governing the given subject matter will prevail over general language of the same or other statutes; and (b) ... later enactments by the General Assembly are presumed to repeal earlier inconsistent ones to the extent that they are in conflict." Id. at 192-93.

    Similarly, in 87 Conn. Op. Atty. Gen. 295 (1987), this office concluded that the terms of office of members of the Board of Mental Health established by a 1981 Public Act prevailed over Conn. Gen. Stat. 4-9a(c) because, "if a statute is both later and more specific, it is well-settled that it will control over an earlier, more general enactment." Id. at 300.

    On the other hand, in Conn. Op. Atty. Gen. 91-006 (February 11, 1991), this office concluded that the terms of office established in Conn. Gen. Stat. 4-9a(c) prevailed over the statute governing the terms of office for the Commissioners of Liquor Control. The basis for this decision was that the specific statute was enacted in 1933, and Conn. Gen. Stat. 4-9a(c) prevailed as a later enactment which provided that it controlled, "notwithstanding any provision of law to the contrary." Conn. Gen. Stat. 4-9a(c).

    Based on these opinions and the principles of statutory construction discussed therein, we conclude that the specific, later-enacted provisions of Conn. Gen. Stat. 5-201(a) establish the terms of office for ERB members.

    B.

    Conn. Gen. Stat. 5-201(a) provides that the ERB is composed of seven members. Five of those serve one particular term of office. Two of those serve a different term of office.

    The statutory language governing the terms of five of the members of the ERB states: "On or after January 1, 1983, and quadrenially thereafter, the governor shall appoint five persons to serve as members of the board for terms of four years from the first day of January preceding such appointment or until their successors are appointed." Conn. Gen. Stat. 5-201(a). The terms of office for these five members since January 1, 1983 are as follows: January 1, 1983 to December 31, 1986; January 1, 1987 to December 31, 1990; January 1, 1991 to December 31, 1994; and the current term of office, January 1, 1995 to December 31, 1998.

    These additional observations should be made from a careful reading of the statute; an appointment cannot be made until after the term of office has actually begun; the term begins to run from January 1 of the year of appointment regardless of the date of appointment, unless there is a member holding over, in which case the date of appointment is the beginning of the term. Thus, an appointment made on November 31, 1991 to a vacancy would result in a term of office commencing on January 1, 1991 and ending December 31, 1994, or a statutory three year term of office. This is because the statute provides the Governor with the authority to make a new appointment for that position "on or after [the date commencing each new four year term]," notwithstanding the general language referring to a four year term. Conn. Gen. Stat. 5-201(a).

    The statutory language governing the terms of office of the other two members of the ERB states: "On or after July 1, 1987, and quadrenially thereafter, the governor shall appoint two persons to serve as members of the board for terms of four years from the first day of July preceding such appointment or until their successors are appointed." Conn. Gen. Stat. 5-201(a). The terms of office for these two members since July 1, 1987 are as follows: July 1, 1987 to June 30, 1991; and the current term of office, July 1, 1991 to June 30, 1995. The next term of office for these two positions will be July 1, 1995 to June 30, 1999, with gubernatorial authority to make those appointments on or after July 1, 1995. The same observations made above with respect to the computation of statutory terms applies to these two members.

  2. Terms of Appointment Letters of The Honorable Lowell P. Weicker,Jr.

    A.

    Governor Lowell P. Weicker, Jr. wrote a letter bearing the date of January 3, 1995 to seven individuals. That letter states in its entirety:

    Pursuant to Section 5-201 of the Connecticut General Statutes, it is my pleasure and privilege to appoint you a member of the Employees' Review Board, to serve for the term ending July 1, 1999.1

    To the extent possible, it must be determined exactly what terms of office this letter was seeking to fill, and, if exact terms are created, which appointees serve in the terms of office so created. Governor Weicker's letter establishes no date as the beginning of the terms of the seven individuals who received letters of appointment. However, the date of the appointment letter is January 3, 1995. In the facts submitted, it is stated that the current ERB positions consist of either vacancies, or individuals holding over "until their successors are appointed." Conn. Gen. Stat. 5-201(a). In the case of vacancies, by operation of Conn. Gen. Stat. 5-201(a), the term of office for individuals serving January to December terms backdates to January 1 of the year of appointment.2 Since Weicker's letter is dated January 3, 1995, in the case of January to December ERB positions which are vacant, the term commencement date would be January 1, 1995. In the case of January to December ERB positions in which an individual is holding over until a successor is appointed, the term commencement date would be January 3, 1995, the date of the appointment letter.

    Similar reasoning applies to the July to June terms. In the case of a vacancy in a July to June term, by operation of statute the term commencement date would backdate to July 1, 1994.3 In the case of July to June terms in which an individual is holding over until a successor is appointed, the term commencement date would be January 3, 1995, the date of the appointment letter.

    Governor Weicker's letter purports to establish term ending dates of July 1, 1999 for all seven appointees. However, by operation of statute, the terms of the five members holding January to December terms must expire on December 31, 1998, and the terms of the two members holding July to June terms must expire on June 30, 1995. The statute provides for four year terms. Regardless of which of the term starting dates determined supra is used, Governor Weicker's letters of appointment attempted to create terms of office exceeding the four year statutory term. In fact, Conn. Gen. Stat. 5-201(a) does not provide for the expiration of any statutory terms of office for ERB members on July 1, 1999. "[A] term fixed by statute cannot be changed by the appointing authority." Brown ex rel. Gray v. Quintilian, 121 Conn. 300, 306, 184 A. 382 (1936).

    State ex rel. Eberle v. Clark, 87 Conn. 537, 89 A. 172 (1913) provides guidance as to how to treat the extended ERB term expiration dates created by Governor Weicker. In Eberle, the Constitution of Connecticut provided that judges of city courts and police courts shall be appointed for terms of two years. The charter of the city of Hartford established a city police court, and provided that the two judges of that court should serve terms of office of two years and until their successors were duly appointed and qualified. The General Assembly appointed an individual as judge of the Hartford Police Court for a term of two years and until his successor is duly appointed and qualified. The court held that any attempt on the part of the General Assembly to extend the two year term was in excess of its constitutional powers. "If, then, the General Assembly, by the charter of the city of Hartford, or by Resolution appointing the respondent, attempted to extend his term beyond two years, such extension was void." Id. at 541. However, notwithstanding the offending language in the city charter, and the General Assembly appointment, the court concluded that the judge was properly an officer de jure for the two years authorized by constitution.

    Application of this principle to Governor Weicker's appointments renders any extension of the statutory terms of office of ERB members to July 1, 1999 void. The excess is mere surplusage.4 Accordingly, by using Conn. Gen. Stat. 5-201(a) to determine the ERB term commencement dates, and Eberle and Conn. Gen. Stat. 5-201(a) to determine the term ending dates, Governor Weicker's letters create these four possible terms:

    1. For January to December terms with a vacant ERB position:

      January 1, 1995 to December 31, 1998;

    2. For January to December terms with an incumbent holding over in an ERB position until a successor is appointed:

      January 3, 1995 to December 31, 1998;

    3. For July to June terms with a vacant ERB position:

      July 1, 1994 to June 30, 1995; and

    4. For July to June terms with an incumbent holding over in an ERB position until a successor is appointed:

      January 3, 1995 to June 30, 1995.

    Additionally, by operation of statute, since Governor Weicker appointed seven individuals, five would hold January to December terms (A and B), and two would hold July to June terms (C and D).

    B.

    Having established that there are four possible terms of office for Governor Weicker's ERB appointees, it must be determined which appointee holds which term of office.5 This is necessary, because Conn. Gen. Stat. 5-201(a) mandates that each member have a fixed tenure or term of office.

    All seven individuals received identical letters of appointment. It is impossible to determine from these letters which of the seven appointees is assigned to one of the four possible ERB terms, because of the use of identical language. The gubernatorial appointments, evidenced only by the letters dated January 3, 1995, did not comply with the statutory mandate of Conn. Gen. Stat. 5-201(a). Because, as demonstrated in part II.A., supra, there are four possible terms of office for ERB positions given the two types of statutory terms, and the fact that the ERB consisted of vacancies and individuals holding over, the Governor was statutorily required to appoint individuals to specific terms of office in order to comply with the provisions of Conn. Gen. Stat. 5-201(a).

    A fundamental principle of law is that "a statute should be applied as its language directs." Breen v. Department of Liquor Control, 2 Conn. App. 628, 631, 481 A.2d 755 (1984). Governor Weicker did not designate ERB terms and, therefore, did not do as the statute directs.

    Our Supreme Court has emphasized the need for full compliance with the requirements for a complete and valid appointment. In State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 68 A.2d 289 (1949), the court explained:

    Where by constitutional, statutory or other legal provision, it is required that certain steps be taken to make an effective appointment, the general rule is that the appointment becomes complete, beyond the possibility of recall, when the last of the prescribed steps is taken.

    Id. at 655. See also State ex rel. Coogan v. Barbour, 53 Conn. 76, 85, 22 A. 686 (1885). ("An appointment is complete when the last act required of the appointing power has been performed.")

    Applying this line of cases, and the rule that when a statute directs that something be done in a certain way that it must be done in that way and in no other way, we conclude that Governor Weicker's letters of January 3, 1995 fail to constitute complete and final appointments. He did not fully exercise the power of appointment required by Conn. Gen. Stat. 5-201(a) because of the failure to designate the specific terms of office for the seven appointees. We conclude that all of the seven appointments are a nullity as they are all incomplete appointments.6

  3. Experience Requirement

    Conn. Gen. Stat. 5-201(a), as amended by 1987 Conn. Pub. Acts No. 87-456, also provides that "[e]ach member ... shall have substantial current experience as an impartial arbitrator of labor-management disputes."

    The word "shall" imposes a mandatory duty.... Section 1-1 of the General Statutes provides that in construing statutes, words and phrases are to be given their ordinary meaning. Unless the context indicates otherwise, the word "shall" must be assumed to have been used with full awareness of its ordinary meaning.

    Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980).

    There is nothing in the context of Conn. Gen. Stat. 5-201(a) which indicates that "shall" does anything other than impose upon the governor the mandatory duty to appoint ERB members with the aforementioned arbitration experience. Nor is there anything in the legislative history of 1987 Conn. Pub. Acts No. 87-456 which indicates a contrary intent on the part of the General Assembly. We conclude that all appointees to membership on the ERB are required to have substantial current experience as impartial arbitrators of labor management disputes.

    From the facts presented, only three of Governor Weicker's appointees meet this statutorily mandated arbitration experience requirement. This is in addition to the infirmities regarding their terms of office as set forth supra.

    The effect of the failure to meet a statutory qualification for public office, and the effect of serving in a public office from which one is disqualified, have been addressed by the courts of this state and this office. At issue in Dubaldo v. Department of Consumer Protection, 209 Conn. 719, 552 A.2d 813 (1989), was the vote by the Electrical Work Examining Board to suspend the plaintiff's license. The statute governing the Board required two members to be unlimited journeymen, engaged in and licensed for such occupation. The two Board members who were journeymen were not engaged in electrical work. The supreme court held that "it is clear that the board was not properly constituted ... the board's decision to suspend the plaintiff's license was without statutory authority." Id. at 723.

    In Conn. Op. Atty. Gen. 93-007 (April 27, 1993), this office advised that the appointment of a former social worker at Yale-New Haven Hospital as a public member of the Commission on Hospitals and Health Care violated a statutory provision prohibiting any member of the Commission from having any past affiliation with any health care facility, and that the statute barred her from serving on the Commission. In Conn. Op. Atty. Gen. 94-002 (January 24, 1994), which concerned the same situation, this office stated that the individual "having been nominated by the Governor, was serving under color of a known appointment which was void because she was not eligible." Accordingly, we conclude that the appointments of the four individuals to the ERB, who lack the arbitration experience required by Conn. Gen. Stat. 5-201, are void.

  4. De Facto Officers

    The final question is whether or not Governor Weicker's ERB appointees, who do not hold ERB membership de jure, may qualify as de facto officers whose actions may therefore be valid and binding. In Furtney v. Zoning Commission, 159 Conn. 585, 595-96, 271 A.2d 319 (1970), the supreme court set forth the circumstances under which this may occur:

    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.

    Under the facts set forth, we need not answer this question because none of Governor Weicker's appointees have been sworn into office. They have not met or conducted a meeting, or taken any votes, or decided any cases or conducted any business. They have not induced anyone to submit to their action. Nor has any member of the public submitted to their authority such that their actions may be considered valid.

  5. Conclusion

    In conclusion, Governor Weicker's appointment letters, by failing to specify a fixed term and tenure of office where four possible terms exist for ERB positions, are incomplete, not final and a nullity. Additionally, the appointments of the four individuals who lack the statutorily mandated arbitration experience are void. The ERB members so appointed are neither officers de jure, or officers de facto.7

Very truly yours,

Richard Blumenthal
Attorney General

Robert A. Whitehead
Assistant Attorney General

RB/RAW:eh


1 The letter to George C. Ritter, Esq. also appointed him Chairman of the Board.

2 Conn. Gen. Stat. 5-201(a) mandates that such appointments be "from the first day of January preceding such appointment..."

3 Conn. Gen. Stat. 5-201(a) mandates that such appointments be "from the first day of July preceding such appointment...."

4 Connecticut courts have not applied the principle in Eberle to gubernatorial appointments in excess of statutory provisions. However, many other states have, with the same result as Eberle. The statutory portion of the gubernatorial appointment is treated as valid and the excess is considered void. E.g., Goodman v. Clerk of the Circuit Court, Etc., 291 Md. 325, 435 A.2d 422 (1981); Dodsworth v. Mayor of Medford, 308 Mass. 62, 30 N.E. 2d 835 (1941); Brown v. Superior Court of Mendicino City, 123 Cal. Rptr. 377, 538 P.2d 1137 (1975).

5 This issue is significant because its resolution determines which, if any, appointees serve for a period of four years, and which, if any, serve for a period of six months, a difference of three and one half years.

6 If the appointments to the ERB were deemed valid without the designation of specific terms of office, the consequences of the failure to designate those terms for the seven appointees would first arise on July 1 of this year. On or after July 1, 1995, the current Governor has the statutory authority to appoint two individuals to ERB terms starting July 1, 1995 and ending June 30, 1999. If he chose to exercise that authority, it would be impossible to determine which two of the seven ERB members were serving terms expiring June 30 1995, and, therefore, the positions to which those two appointments could be made. A selection of persons for a term of service of four years or for a term of service of six months is an act of appointment which was required to be accomplished by the Governor as the statutory appointing authority.

7 Although not specifically asked, this advice is bound to raise a question as to the authority of the incumbent Governor to make appointments to the ERB. The facts as stated show that the seven ERB positions are either vacant or filled by individuals holding over until a successor is appointed. The Governor can, therefore, make appointments to all seven positions. In so doing, the appointments should reference the terms of office in accordance with the principles governing those terms set forth in part II. of this advice. Further, appointments should only be made to individuals who meet the arbitrator experience requirement.


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