Attorney General: Hon. Walter J. Kupchunos, Jr., Office of the Sheriff--Court House, 1996-021 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

December 18, 1996

Hon. Walter J. Kupchunos, Jr.
High Sheriff, Hartford County
Office of the Sheriff--Court House
101 LaFayette St.
Hartford, CT 06106

Dear Sheriff Kupchunos:

Thank you for your recent letter addressed to the Attorney General concerning the prohibitions on state employment known as the "dual job ban." You ask specifically if a special deputy sheriff, now a member-elect of the General Assembly, would be affected by the dual job ban. For the reasons below, I conclude that a special deputy sheriff is precluded by the dual job ban from retaining his state employment while serving in the legislature.

In analyzing your question, it is necessary to look at both the constitutional dual job ban, Conn. Const. Art. III, 11, cited in your letter, and the statutory ban of Conn. Gen. Stat. 2-5. Article III, 11 of the Connecticut Constitution provides in relevant part:

No member of the general assembly shall, during the term for which he is elected, hold or accept any appointive position or office in the judicial or executive department of the state government, or in the courts of the political subdivisions of the state, or in the government of any county....[N]o person holding any office in the judicial or executive department of the state government or in the government of any county shall be a member of the general assembly during his continuance in such office. (emphasis added)

Section 2-5 of the general statutes reaffirms this principle, and expands on it:

No member of the general assembly shall, during the term for which he is elected, be nominated or appointed by the governor, the general assembly or any other appointing authority of this state or serve or be elected to any position in the judicial, legislative or executive department of the state government including any commission established by any special or public act of the general assembly, except that the provisions of this section shall not apply where it is expressly provided by law that a member of the general assembly as such shall be nominated or appointed to any board, commission, council or other agency in the legislative department, and except that the provisions of this section shall not apply to a member-elect. (emphasis added)

The constitutional ban thus prohibits a member of the state legislature from holding or accepting any appointive position in the executive branch of the state or county government, or holding any office in the judicial or executive departments of the state government. Conn. Gen. Stat. 2-5 is even more precise on this point: "No member of the general assembly shall, during the term for which he is elected, be ...appointed by ...any ...appointing authority of this state or serve...[in] any position in the ... executive department of the state government...." (emphasis added) Passed in 1951 before the constitutional dual job ban, Conn. Gen. Stat. 2-5 was intended to reverse an earlier opinion of this office permitting legislators to hold positions in the executive branch.

These provisions preclude a special deputy sheriff from serving simultaneously in the legislature. The office of sheriff is a constitutional one residing in the executive branch of the state government, notwithstanding that the high sheriff is elected according to county. Endnote 1 Conn. Const. Art. IV, 25. Under Conn. Gen. Stat. 6-43, the high sheriff appoints the special deputy. Consequently, since a special deputy is appointed by an "appointing authority of this state," 2-5, he falls within the strictures of Section 2-5 and is precluded from serving simultaneously in the state legislature. In addition, the Attorney General has recently concluded that, for purposes of the federal Fair Labor Standards Act, a special deputy sheriff is an employee of the State of Connecticut. Conn. Op. Atty. Gen. April 19, 1996. Consequently, he serves in an appointive "position in the...executive department of the state government," putting him squarely within both 2-5 and article three, section 11 of the state constitution. Endnote 2 These two factors lead to the conclusion that the position of special deputy sheriff falls within the dual job ban, and preclude a special deputy sheriff from serving in the state legislature as long as he continues to hold that position.

You also ask whether the dual job ban would apply to deputy sheriffs. I believe that it would. Clearly, a sheriff himself, as an elected state officer who exercises the sovereign power of the state, see Sibley v. State, 89 Conn. 683, 688 (1915); Antinerella v. Rioux, 229 Conn. 479, 497 (1994), falls within the scope of both the constitutional and statutory bans. A deputy sheriff is appointed by the sheriff, a state official, Conn. Gen. Stat. 6-37, and has "the same powers as such sheriff to serve civil process," thus putting him within the scope of 2-5. Deputy sheriffs also appear to be state officers, 6-39; Rogers v. County Commissioners, 18 Conn. Sup. 401, 403 (Ct. Com. Pleas 1953), and have been considered state employees for certain purposes, see Conn. Op. Atty.Gen.Op. April 19, 1996, p. 11., although we need not decide these questions here since as stated the deputy sheriffs fall within the dual job ban provisions due to their appointment by the sheriff.

I hope this answers your questions

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Henry S. Cohn
Assistant Attorney General


Endnote 1

County governments were eliminated pursuant to Public Act 59- 152, effective October 1, 1960, and their functions were transferred to state and municipal governments.


Endnote 2

A special deputy sheriff may also be considered a state officer, providing an additional reason for subjecting him to the dual job ban. However, we need not decide that question here for the reasons stated above.


Endnote 3

As amended in 1985, Conn. Gen. Stat. 2-5 permits a legislator-elect to maintain his state employment if he declines to accept the office of legislator prior to being sworn to the post. Once the legislator takes the oath of office, the disqualification from state executive service applies for the full two year term and subsequent resignation from the legislature would be ineffective to terminate the prohibition.


Endnote 4

We do not address here deputies appointed pursuant to 6-44 "upon the application of any town, city, borough or district or of any corporation," and paid by such entities.


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