Attorney General: William J. Gilligan, Deputy Insurance Commissioner, 1996-002 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

March 19, 1996

William J. Gilligan
Deputy Insurance Commissioner
Oxford Centre
123 Market Street
Hartford, CT

Dear Deputy Commissioner Gilligan:

This is in response to your request for an opinion of the Attorney General on your authority to review an application under Conn. Gen. Stat. 38a-132 concerning the acquisition of The Aetna Casualty and Surety Company and The Standard Fire Insurance Company by The Travelers Insurance Group (hereinafter referred to as "the Travelers application") following a decision by Insurance Commissioner George M. Reider, Jr., to recuse himself. Your letter recites that Commissioner Reider conducted a hearing on the Travelers' application on March 6, 1996, and that he made various rulings on motions and applications appearing in the record of the proceedings. Following the hearing he reconsidered his denial of the motions to recuse himself, made on March 6, 1996, and entered a ruling dated March 13, 1996, granting the motions and vacating all rulings he made at the hearing. The Commissioner's decision goes on to state that

[f]urther proceedings in this matter shall take place in accordance with section 4-8 of the General Statutes which provides for the Deputy Commissioner of this Department to exercise the powers of the Commissioner in the event of my disqualification.

Ruling on Motions to Disqualify, 3/13/96, Docket Ex. 96-18.

Your request for an opinion poses two questions. First, you ask us to confirm that as Deputy Insurance Commissioner you may now exercise the powers and duties of the Insurance Commissioner with respect to the Travelers application. Second, you ask whether the law permits you to read the record of the hearing regarding the Travelers application, including the transcripts, motions, and exhibits, and thereafter, enter rulings on the motions and applications that were vacated by Commissioner Reider's March 13, 1996 ruling, and make the appropriate findings and orders based on the record evidence without having to hold a new -hearing. For the following reasons, we answer both of your questions in the affirmative.

Conn. Gen. Stat. 4-8 provides in relevant part that "[e]ach department head shall designate one deputy who shall in the absence or disqualification of the department head or on his death, exercise the powers and duties of the department head until he resumes his duties or the vacancy is filled." (Emphasis added.)

Section 4-8(a), by its terms, merely authorizes a department head to appoint a deputy and empowers the deputy so appointed to fill the position of Commissioner when the commissioner is unable to perform his duties. As such, its provisions are addressed solely to instances where the Commissioner is unable to perform his duties because of absence, disqualification or death.

Tomlin v. Conn. Personnel Appeal Board, 177 Conn. 344, 347, 416 A.2d 1205 (1979) (emphasis added).

Several canons of statutory construction apply to the interpretation of the subject provision of Conn. Gen. Stat. 4-8. First, a court must interpret a statute as written. Zachs v. Groppo, 207 Conn. 683, 690, 542 A-2d 1145 (1988). Second, if a statute is clear and its language is unambiguous, there is no room for construction. Cilley v. Lamphere 206 Conn. 6, 9, 535 A.2d 1305 (1988). Third, common sense may be used in construing laws as saying what they obviously mean. Trumbull v. State, 206 Conn. 65, 80, 537 A.2d 431 (1988). Fourth, words used in a statute should be construed according to their plain and ordinary meaning. State v. Anonymous, 37 Conn. App. 62, 67, 654 A-2d 1241 (1995).

Conn. Gen. Stat. 4-8 plainly entitles a commissioner's deputy to accede to the powers and duties of the commissioner if the commissioner cannot act due to disqualification. "Disqualification," as used in section 4-8, should be construed within the plain usage of the language and would include recusal from a matter before the Commissioner due to a conflict of interest. See, e.g., Petrowski v. Norwich Free Academy, 199 Conn. 231, 506 A-2d 139, appeal dismissed, 479 U.S. 802, 107 S.Ct. 42, 93 L.Ed.2d 5 (1986); Rado v. Board of Education, 216 Conn. 541, 583 A-2d 102 (1990); Clisham v. Board of Police Commissioners, 223 Conn. 354, 613 A.2d 254 (1992); and Transportation General v. Insurance Department, 36 Conn. App. 587, 652 A-2d 1033 (1995).

Applying the tenets of construction set forth above, it is clear that the Deputy Insurance Commissioner may lawfully exercise the powers and duties of the Commissioner over the matter from which the Commissioner disqualified himself.

Regarding your second question, in which you ask whether you may issue rulings on motions, and decide the Travelers application based on the record of the March 6 hearing, the Uniform Administrative Procedure Act ("the UAPA"), Conn. Gen. Stat. 4-166, et seq., provides guidance.

The UAPA clearly contemplates that agency personnel authorized to render decisions in contested cases need not be present at a hearing to issue rulings so long as they have read the record of the proceedings. Conn. Gen. Stat. 4-179. Pet v. Department of Health Services, 228 Conn. 651, 672 (1994) (In an administrative hearing "[a]s a constitutional matter, if each panel member... had heard all of the evidence or read the entire record, the plaintiff's due process rights were adequately protected.") Accord Dragan v. Connecticut Medical Examining Board, 34 Conn. App. 343 (1994).

In this case, there is an extensive record, and oral and written arguments were permitted on the applications and motions of the participants. Oral argument was also permitted on all objections to evidence. Accordingly, there is no explicit statutory requirement that you must renotice the hearing on the Travelers application and rehear all of the testimony in order to rule on the issues presented.

You are not, of course, precluded from allowing additional testimony or argument if you feel it is necessary or desirable either to rule on the motions or render a decision on the proposed acquisition. Indeed, to provide a full and fair airing or exposition of the issues, you may well conclude that prudence and policy concerns persuade you to afford participants an opportunity to address you personally, and to avail yourself of the opportunity to ask pertinent questions, assess the responses, and permit examination of witnesses as may be deemed appropriate. Reasonable limits may be placed on such a proceeding, so as to focus succinctly and precisely on key questions.

Additionally, if your rulings were to differ from certain rulings made by Commissioner Reider, you may be required to allow cross-examination or the presentation of additional evidence. Finally, we would observe that judicial review is afforded to any person aggrieved by your decision in accordance with Conn. Gen. Stat. 38a-139 which provides for a trial de novo. The rights of aggrieved parties are therefore adequately protected. If you choose to allow a rehearing in part or full, it may obviate such an appeal, with the expense and time involved.

We trust that this answers your questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL


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