Attorney General: Ms. Cynthia Watts-Elder, CHRO Executive Director, 2000-002 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 26, 2000

Ms. Cynthia Watts-Elder
CHRO Executive Director
21 Grand Street
Hartford, CT 06106

Dear Ms. Watts-Elder:

This is in response to a request for advice from the Commission on Human Rights and Opportunities (hereinafter CHRO) which asked this office to consider the following questions:

1. Is the Criminal Justice Commission required to comply with Conn. Gen. Stat.  46a-68(a) which requires state agencies to file affirmative action plans with the CHRO?

2. Is the Criminal Justice Commission required to cooperate with the Division of Criminal Justice by providing information and support necessary to allow the Division of Criminal Justice to meet its responsibilities to file and implement an affirmative action plan pursuant to Conn. Gen. Stat.  46a-68?

For the reasons that follow, and consistent with the interpretation and practice of CHRO since the Criminal Justice Commission was created, it is clear that the legislature has not required the Criminal Justice Commission to file an affirmative action plan pursuant to Conn. Gen. Stat.  46a-68(a). Unless and until the legislature requires the Commission to file an affirmative action plan, the Commission is also not required to provide any information on this subject to the Division of Criminal Justice.

It was stated in your request for advice that the Criminal Justice Commission hires the attorneys who work for the Division of Criminal Justice, and that because the Criminal Justice Commission does not provide the Division with the reasons for selection of attorney applicants, the Division does not (and cannot ) provide this information to the CHRO in its affirmative action plan. It was stated that without this information from the Criminal Justice Commission, CHRO cannot accurately assess the good faith efforts of the Division of Criminal Justice under the affirmative action regulations. Finally, it was stated that "Like the Division of Criminal Justice, the Criminal Justice Commission lies within the executive department. It is executive department agencies that are subject to affirmative action requirements under Conn. Gen. Stat.  46a-68, including the Governor's office."

While it is true that it is the executive department agencies that are subject to affirmative action requirements under Conn. Gen. Stat.  46a-68, it is not accurate to say that the Criminal Justice Commission lies within the executive department. Conn. Gen. Stat.  51-275a(f) provides as follows:

(f) the Commission shall be an autonomous body within the executive department for fiscal and budgetary purposes only. (Emphasis added.)

Thus, the statute is clear that the Criminal Justice Commission is not generally within the executive department (except for fiscal and budgetary purposes, which obviously do not include affirmative action). The word "autonomous" is defined as "independent and not subject to control from the outside," Random House Dictionary, p. 141 (2d Ed. 1993). Therefore, since the Criminal Justice Commission is an autonomous body, which is not within the executive department for affirmative action purposes, it need not file an affirmative action plan of its own, nor does it fall within the mandates of Conn. Gen. Stat.  46a-77 that requires executive branch agencies to comply with the CHRO's requests for information, either directly or through the Division of Criminal Justice. Since the legislature has decided that only executive branch agencies must file affirmative action plans, only the legislature can change this.

It is also important to note that since 1984, when the Criminal Justice Commission was created, CHRO has never required this commission to submit an affirmative action plan. It was so stated in the letter dated May 7, 1999, in which CHRO provided this office with supplementary information concerning this request for advice: "The Division of Criminal Justice is required to file an affirmative plan; the Criminal Justice Commission is not." This fact is also readily apparent from the list of the state agencies which appears in CHRO regulations, along with the dates by which they must file their affirmative action plans. These regulations are attached as Appendix A to the letter dated May 5, 1999. That list does not include the Judicial Branch, the Legislature, the Criminal Justice Commission, or any other agencies outside of the executive branch, and this is significant.

Our Supreme Court has consistently stated that "[an appellate court] must accord great deference to the construction given a statute by the agency charged with its enforcement. Preston v. Department of Environmental Protection, 218 Conn. 821, 830, 591 A.2d 421 (1991). That principle applies with even greater force to the agency's interpretation through its own duly adopted regulations which have the same force and effect of law unless they are shown to be inconsistent with the authorizing statutes.

LaPia v. Stratford, 47 Conn. App. 391, 396 (1997). These CHRO regulations certainly are consistent with the authorizing statute (Conn. Gen. Stat.  46a-68), and they have never required the Criminal Justice Commission to file an affirmative action plan. As CHRO itself correctly pointed out, Conn. Gen. Stat.  46a-68 and these regulations only require executive branch agencies to file affirmative action plans. Thus, it is clear that CHRO has never considered the Criminal Justice Commission an executive branch agency for this purpose.

For all of these reasons, it is our opinion that the legislature has determined that the Criminal Justice Commission is not required to file an affirmative action plan, nor is it required to provide information on this subject to the Division of Criminal Justice. I trust that this answers your agency's inquiry.

Very truly yours,

RICHARD BLUMENTHAL, ATTORNEY GENERAL

David M. Teed
Assistant Attorney General

RB/DMT/am


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